JUDICIAL REVIEW

Recent Judicial Review activity at Magrath LLP

In recent months, partly because of the new immigration rules and processes, the Dispute Resolution Department have had to threaten the UK Border Agency on more than one occasion with the commencement of Judicial Review proceedings. Classically, such threats arise as a result of the UK Border Agency taking far longer than is reasonable to process applications for immigration status or other administrative tasks which have a direct impact on Magrath LLP's client base. Increased activity by threatening Judicial Review proceedings leads the Dispute Resolution to believe that before too long, a full blown Judicial Review process will be embarked upon concerning the UK Border Agency.

A Judicial Review application was pursued recently against Her Majesty's Prison Services and a particular governor of a prison at which a Magrath LLP client was resident. The decision of the governor related to the client's category status which in turn had an impact on the ability of the client to be transferred to a less secure prison. (The client was categorised as a Category "C" prisoner when everything pointed reasonably to him properly being classified as a Category "D"). Without going into the detail of the claim and the decision itself, as soon as Judicial Review proceedings were started in the Administrative Court, the relevant governor at the prison renewed the review process and re-categorised the client rather than face the prospect of a full judicial review process. The Treasury Solicitors then sought to argue that Her Majesty's Prison Services should not be responsible for the costs of the Judicial Review process on the basis that the Judicial Review process had then become academic and it would be contrary to the interests of justice to spend time dealing with an academic issue when time could better be spent dealing with real issues.

On behalf of the client, Magrath LLP consented to an Order on terms that there was no reason to proceed with a substantive Judicial Review process given that the ultimate objective of the Judicial Review process has been achieved but, nonetheless, were it not for the initiation of the Judicial Review proceedings, there was every likelihood that the mischief of the failure to deal fairly with the re-categorisation process would have continued. Magrath LLP therefore asked the Administrative Court to direct that the costs of and occasioned by the Judicial Review process up to date including the application for permission and all correspondence leading up to the decision of the governor to re-categorise the client should be paid for by HM Prison Services. The High Court agreed.

The Honourable Mr Justice Hodge in his decision observed "The application has now become academic as the Claimant has been re-categorised from Category C to D. Both parties have made submissions as to costs; the Defendant in the Acknowledgement of Service and the Claimant in a letter. I conclude, having considered the submissions and looked at the responses from HMPS that the Claimant was justified in launching the proceedings, that the decision on categorisation was unduly delayed particularly following the letter before claim and that in the circumstances a Costs Order against the Defendant is appropriate. Order accordingly, the Defendant to pay the Claimant's costs of these proceedings, such costs to be assessed if not agreed".

What is Judicial Review?

Judicial Review is a type of Court action in which a Claimant applies to the Court for the Court to review the lawfulness of a decision or action or a failure to act on the part of a public body.

In effect, Judicial Review proceedings take the form of challenging the way in which a public body has progressed with a matter and made a decision or has failed to make a decision, rather than the rights and wrongs of the decision itself.

A Judicial Review does not progress a claim by seeking a decision of the Court to "correct" the decision that is the subject of the review. What the Court is interested in when conducting a Judicial Review is the process undertaken by the public body and whether such processes that were followed were correct and the decision made flowed from correct processes. A Court will not substitute what it thinks is the "correct" decision for the decision that is the subject of the review.

Following a Judicial Review, assuming the review results in the Court directing the public body to "think again" or take certain action so as to correct errors of procedure, there is every possibility that the public body will be able to make the same decision again, so long as in doing so, it acts in accordance with the correct and lawful procedure.

"Certiorari". This is the word given to an order from the Court by which it quashes or sets aside a decision that is the subject of judicial review and requires the public authority to go through the decision making progress again.

"Mandamus". This is the word given to describe an Order from the High Court commanding a public authority or public body to perform a public duty.

"Prohibition". This is the word given to describe an order made by the Court on a Judicial Review to prevent the public body from exceeding its jurisdiction or acting in a way that is contrary to the rules of natural justice.

Grounds for Judicial Review

In order to succeed in a Judicial Review claim a claimant needs to be able to show the Court that the decision that is the subject of the review was made either illegally, irrationally or by way of procedural impropriety.

 
Applying for Judicial Review

There is a two stage process. Firstly an application is made to the High Court for permission to proceed with a Judicial Review process. The permission application is generally made on paper and is decided by a single Judge without a hearing. In normal circumstances the permission application must be issued within 3 months of the decision that is to be the subject of the Judicial Review.

If permission is granted, the substantive Judicial Review proceeding takes place at an oral hearing at which both the applicant and the public body are usually represented.

If the permission application is refused on paper, the applicant may ask for an oral hearing to advance the application further. If the permission application hearing results in rejection, the applicant may pursue a further appeal to the Court of Appeal.

No Judicial Review process can continue if permission is not granted.

For further information about Judicial Review proceedings please contact Nick Goldstone or Jeremy Hershkorn in the Dispute Resolution Department.