The Judicial Review Procedure
Judicial review is the process by which an individual with a sufficient interest in a decision can request a review of the lawfulness of:
i) An enactment; or
ii) A decision, action or failure to act in relation to the exercise of a public function.
A challenge may be brought on the basis of illegality, irrationality, procedural unfairness or legitimate expectation. The available remedies include injunctions, declarations stating parties’ rights and damages (only where another cause of action warranting damages exists). In addition to this, there are three remedies specific to judicial review:
i) Prohibiting Orders preventing public bodies from acting outside their scope;
ii) Quashing Orders nullifying a decision;
iii) Mandatory Orders requiring public bodies to perform their legal duties.
The permission of the Court is necessary for a claim for judicial review to be heard. Once such permission is granted, a substantive hearing will occur unless the parties are able to resolve matters.
Claimants must adhere to the Pre-Action Protocol contained in the Civil Procedure Rules. This requires that a letter before claim be sent to any potential Defendants and interested parties and stipulates what must be included in the letter, such as the decision being challenged and the grounds on which the review is based. If such a letter is not sent, a reason for this omission must be provided in the subsequent Claim Form. Defendants must respond to the letter within the timeframe specified, presuming it is deemed reasonable. The Court may require the parties to prove that alternative means of resolving the matter were considered.
Any claim must be brought promptly and must be made within 3 months of the grounds for the claim arising. These rules exist due to the vast number of parties which public law decisions often affect. Even if a claim is made within 3 months, the Court may still not deem it to be prompt. The 3 month limit cannot be extended by agreement between parties but the Court will occasionally grant an extension. Being unaware of grounds for a claim would, for example, warrant an extension. It may be wise to apply for judicial review and request a stay of the proceedings at the same time as applying for alternate remedies to avoid falling foul of the timing rules.
Whilst permission for a claim may be refused if it is vexatious, frivolous or groundless, it may also be refused if there are alternative remedies available. Alternative remedies should generally be exhausted before judicial review is considered. Before ruling on this issue, the Court will take into account costs, the convenience to the parties and whether alternative remedies are suitable.
A Claim Form must be filed to commence a judicial review claim and, amongst other things, this must include a request for permission to proceed, the facts of the case, the grounds relied upon and remedy sought, accompanying evidence and confirmation of whether the Pre-Action Protocol has been complied with. Filing a claim incurs a Court fee of £60 and, should permission be granted, a further fee of £215 is payable. Interim relief is often sought in the form of an interim injunction or a stay of proceedings. Where such relief is urgent and required at the time of grant of permission, a separate Claim Form must also be filed.
Where it is of the utmost importance that a matter be dealt with quickly, an Application for Urgent Consideration may be filed. This must state the reasons for urgency, suggest a timetable for proceedings and specify when it first became evident that an immediate application may be needed and the reasons for any delay. The Court takes a strict view on these cases and may strike out a case if the stipulated requirements are not met. These onerous requirements are partly aimed at preventing challenges of Removal Orders in immigration cases where a person who is the subject of such an Order makes an urgent application at the last minute, often without merit, in an attempt to defer their removal.
Where financial constraints may prevent an application, a Claimant may apply for a Protective Costs Order. The Defendant may be ordered to pay the costs of the Claimant and interested parties if the Court considers it fair and just and if the Claimant is unlikely to advance the claim if the Order is not forthcoming. A Defendant’s Acknowledgement of Service must be filed within 21 days of service of the Claim Form. This will state whether the Defendant intends to contest the claim, their grounds and any applications for costs or directions from the Court.
The Court’s decision on whether to allow the claim will generally be made within 3 to 4 months of the filing of the Claim Form. If the case is complex, an oral hearing may be required to make this decision, but it will generally be made on a review of the papers. If permission is refused, the Claimant can request an oral hearing, which will generally last 30 minutes and occur within four months. If permission is again refused, an appeal can be made within 7 days of the decision to the Court of Appeal.
Once permission is granted, the Claimant must pay the above mentioned £215 fee and the case will go on the warned list for a date within 6 to 9 months. The Defendant must file a response and evidence within 35 days of service of the grant of permission, although this deadline is often extended. Should the grant of permission initiate a settlement, a Draft Order comprising terms of settlement should be prepared and 3 copies filed with the Court. If a settlement is reached prior to permission being granted, a £60 fee is payable along with the Draft Order.
The Claimant must file and serve a skeleton argument and bundle containing documents relied upon by all parties 21 days prior to the hearing, and the Defendant and any interested parties must file and serve a skeleton argument 14 days prior to the hearing. Costs follow the case, but in awarding costs the court will consider whether the Pre-Action Protocol has been complied with, the parties’ conduct and the parties’ circumstances. Following the decision of the Court, either party can apply for permission to appeal, with the Supreme Court being the final resort.
The current state of affairs may soon change as the Government is planning a clampdown on judicial reviews. Many commentators believe too many judicial reviews are entertained, leading to high costs and the Courts becoming overrun with reviews. Any overhaul may lead to higher application fees and a reduction in the time limit for bringing a claim. Critics fear this will be a block on access to justice and believe that the initial screening process carried out by the Courts is sufficient. Time will tell whether the proposed reforms have a significant impact on the process.