Guide to judicial review in civil matters

Guide to judicial review in civil matters

23/02/2010

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Emily Heard

Partner

Introduction

Judicial review ("JR") proceedings are designed for testing the legality of the action of public authorities, by reference to public law principles.  There are three broad categories on which the court can intervene:

  1. Lawfulness - where a public authority has made a relevant mistake on a legal issue which was part of its reasoning in making a decision, or stepped outside the legal limits of its powers;
  2. Procedural fairness / impartiality - where a public body has been unfair or impartial for example by providing inadequate consultation, giving inadequate reasons, or bias (namely whether a fair minded observer having considered the facts would conclude that there was a real possibility that the public authority was biased); and
  3. Reasonableness - where a public authority has acted unreasonably.  Indicators of unreasonableness (or errors of approach) include: fettering; illogicality; relevancies/irrelevancies; inequality; unfair abuses of power.

Remedies in JR are discretionary.  A claimant must be seeking one or more of the following remedies to bring a JR:

  1. A mandatory order (requiring a public authority to do something);
  2. A prohibiting order (preventing a public authority from doing something);
  3. A quashing order (quashing a public authority's decision);
  4. A declaration; or
  5. Human Rights Act damages.

JR is now a multi-stage labour intensive process and the work is very 'front loaded'.  In order to have a clear understanding of the chances of successfully bringing / defending a JR claim Counsel's opinion should usually be sought at the pre-action stage.

Pre-Action Protocol

The JR pre-action protocol sets out the steps which parties should generally follow before making a claim for JR.  The protocol does not affect the time limits specified under the CPR.  If it is appropriate to use the protocol and it is not complied with by either party, the court will take account of this in its directions for case management and when making orders for costs.

Before making a claim the claimant should send a letter to the defendant, in the standard format prescribed by the Pre-Action Protocol, containing the following:

  1. Date and details of the decision being challenged;
  2. Clear summary of the facts;
  3. Details of any information being sought and why this is relevant;
  4. Details of any interested parties (the letter should be copied to any such party);
  5. Remedy being sought.

The defendant should respond to this letter within 14 days using the standard format.  If the claim is being conceded in full or in part this must be clear and unambiguous.  The response should be sent to any interested party.

Application for permission to bring a JR

If the complaint is not resolved at the pre-action stage, the first stage in a JR is the permission stage.  Before a substantive hearing a claimant must be granted permission by the court to bring a JR claim.  The purpose of this stage is to eliminate at an early stage claims which are hopeless, frivolous or vexatious.  The claimant will have to show that there is an arguable case and that a ground for seeking JR exists which merits full investigation at an oral hearing with all the parties and relevant evidence.

A claim form (N461) must be filed by the Claimant at the Administrative Court promptly and in any event not later than 3 months after the ground upon which the claim is based first arose.  The claim form must be served on the defendant within 7 days of issue by the court.  Following this a certificate of service must be lodged with the court.  The claim form must contain:

  1. A detailed statement of the claimant's ground for bringing the claim for JR;
  2. A statement of the facts relied on;
  3. An application for directions.

A bundle must also be filed and a sealed copy served on the defendant and any interested party.  It must contain:

  1. Any written evidence in support of the claim;
  2. A copy of the decision/order in dispute;
  3. Any copies of the reasons for the decision that has been reached;
  4. Copies of any documents on which the claimant proposes to rely;
  5. Copies of any relevant legislation or other statutory materials;
  6. A list of essential documents for advance reading by the court.

The claimant is under a duty to disclose all material facts.  These include all material facts known to the claimant and those he would have known had he made the appropriate enquiries prior to applying for permission.  Non-disclosure is a sufficient reason for refusing permission.

Acknowledgment of service

Any person served with the claim form (namely the defendant and any interested party) and who wishes to take part in the JR should file an acknowledgment of service (Form N462) within 21 days of the claim form being served on him.  The acknowledgment of service must set out:

  1. The summary of grounds for contesting the claim;
  2. Any application for directions (including costs and if appropriate that the matter be dealt with urgently).

There is no express obligation to file and serve written evidence (for example a witness statement) at this stage although there is no reason why it might not be done and key documents also attached.  This may add time to the order that an oral hearing take place straight away rather than making a decision on the papers.

The acknowledgement of service must be served on the claimant within 7 days of being filed. 

Failure to file an acknowledgement of service renders it necessary for the party concerned to obtain the permission of the court to take part in any oral hearing of the application for permission.

Principal reasons for objecting to permission for JR

The principal reasons for a defendant to object to the granting of permission for a JR are as follows:

  1. The defendant is not a public authority at all.
  2. The particular function being objected against was not sufficiently "public".
  3. JR is inappropriate as there is a suitable alternative remedy for ventilating the claimant's grievance.  This point should always be taken at the permission stage and not resurrected at the substantive hearing if permission is granted.
  4. Delay.  The claimant has not acted promptly in bringing a JR claim (which may mean acting well within the 3 month guideline period).  Undue delay may justify the refusal of permission or the later refusal of a remedy.
  5. Standing.  The claimant is not sufficiently interested in the matter to which the claim relates.  This is a question of fact and law.  The term "interest" is given a very wide construction and includes an connection, association, or interrelationship between the claimant and the matter.  An objection that the claimant does not have sufficient standing rarely succeeds and only does so when it can clearly be shown that the claimant is a "busybody". 
  6. The subject matter is of so sensitive or political a nature that a judicial pronouncement would not be proper.

Court's decision on permission

The application for permission is considered by a single High Court judge on the papers.  The judge's decision and the reasons for it (Form JRJ) are served on all parties.

Permission refused

The court may refuse permission for any of the reasons set out above, or it may refuse in the exercise of its discretion.  In particular the courts will not grant permission to apply for JR where the applicant has an alternative adequate remedy.  Permission may also be refused where the claim is academic or the claimant has in fact not suffered any injustice.

If permission is refused the claimant may request a reconsideration of that decision at an oral hearing.  Such a request must be made on Form 86b and filed within 7 days of service of the decision.

Notice of the re-consideration hearing will be served on all parties at least 2 clear days before the hearing.  The hearing will be listed for 30 minutes and all parties will be able to attend and make representations.

If permission is refused after the re-consideration hearing the claimant may apply to the Court of Appeal within 7 days of the decision.  The Court of Appeal may grant permission to apply for JR and if so the claim will proceed in the High Court in the normal way.

Permission granted

On granting permission the court may make case management directions for the progression of the case. 

The defendant now has 35 days from the service of the order granting permission to file and serve on the court, claimant and interested parties, a response containing:

  1. Detailed grounds for contesting the claim;
  2. Any written evidence and documents relied on.

The defendant must provide sufficient information for the court to determine whether it has acted lawfully.

When the time for lodging of evidence has expired the case enters a 'warned list' and all parties are informed of this by the court.  The parties' advocates will be contacted by the court in order to seek to agree a date for the hearing.

A skeleton argument should be lodged by both parties.  The claimant must file it with the court and serve it on the other parties not less than 21 days before the date of the hearing.  The defendant must file and serve his skeleton argument not less than 14 days before the date of the hearing.  The skeleton must contain:

  1. A time estimate for the complete hearing including the delivery of judgment;
  2. A list of issues;
  3. A list of the legal points to be taken;
  4. A chronology of events and list of individuals referred to;
  5. A list of essential documents for pre reading by the court;

The claimant must file a paginated bundle not less than 21 days before the hearing.

The hearing of the JR claim is normally before a single judge in open court.

If the claimant is successful the court will make an appropriate order for one or more of the remedies set out in 1.2 above.

The unsuccessful party at the substantive hearing can seek permission to appeal against the decision to the Court of Appeal. 

Expedition

The JR pre-action protocol will not be appropriate in urgent cases.  Urgent cases might also be expedited through the JR procedure set out in CPR 54.  Urgent cases typically include: claims where directions have been set or are in force for the claimant's removal from the UK; where there is an urgent need for an interim order to compel a public authority to act where it has unlawfully refused to do so, for example the failure of a local housing authority to secure interim accommodation for a homeless claimant.

Where the claimant considers the matter is urgent the claim form must be accompanied by a Request for Urgent Consideration, Form N463.  The proposed timescale sought must be set out.

If the defendant considers that the matter is one of urgency, and the claimant has not filed a Form N463, this should be stated clearly in the acknowledgment of service.  The acknowledgment of service should contain an explanation as to why the matter is urgent and an application for directions that the matter be dealt with expeditiously.  The Administrative Court will then pass the papers immediately to a judge for his consideration on the point of urgency.

Where a direction has been given for expedition the case will take priority over other cases and will enter an 'expected warned list'.

Costs

The general rule is that the party which loses a substantive claim for JR will be ordered to pay its own and the other party's costs.  However, the judge considering the matter has discretion to deal with the issue of costs as he considers appropriate in all of the circumstances.

Costs may be awarded in respect of an unsuccessful paper application.  The courts are increasingly receptive to costs applications where permission is unsuccessfully pursued into open court following a paper refusal.
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Refusal of permission

 

Within 7 days…

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Claimant makes request for oral hearing

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Notice of oral hearing given to all parties 2 days before hearing…

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Defendant need not attend hearing unless directed to do so by the judge…

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Oral hearing in front of single High Court Judge listed for 30 minutes

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If permission refused at oral hearing within 7 days of the decision…

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Claimant may appeal to Court of Appeal

Grant of permission

 

Within 35 days of service of the order granting permission…

ß

Defendant files and serves on the court and claimant a response and written evidence

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Within 21 days of the substantive hearing date…

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Claimant files skeleton argument and bundle

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Within 14 days of the substantive hearing date…

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Defendant files skeleton argument

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Substantive hearing before single High Court judge in open court with oral submissions from all parties and any interested parties that have filed a response

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Unsuccessful party may appeal to the Court of Appeal

 

 

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