Judicial Review
Judicial Review is the process by which the courts supervise public bodies to ensure that they act lawfully and fairly.
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Judicial review can be used to challenge the decisions and actions of a range of public bodies, including:
- Local authorities
- Government departments
- NHS trusts and clinical commissioning groups (CCGs)
- Regulatory and supervisory bodies – such as Ofcom (Office of Communications), the Financial Services Authority (FSA), the Independent Police Complaints Commission (IPCC), the Care Quality Commission (to name just a few)
- Schools and governing bodies
- Magistrates, county courts, coroners and some tribunals
- Chief Constables and prison governors
Judicial review is a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached. The court can set aside (or ‘quash’) an unlawful decision but will not remake the decision or inquire into the merits of the decision (except for the purpose of considering its lawfulness).
The remedies available in judicial review proceedings include an order quashing the decision (‘quashing order’), an order restraining a public body from acting beyond its powers (‘prohibiting order’), an order requiring a public body to carry out its legal duties (‘mandatory order’), a declaration setting out the rights or legal position of the parties, a stay or injunction and (in some circumstances) payment of damages.
Our experienced solicitors regularly act for individuals, businesses and community and interest groups in seeking to challenge and overturn decisions where a public body has failed to comply with its legal obligations in relation to:
- Health and social care
- Education
- Planning and environmental law
- Housing
- Inquests
- Regulatory and professional discipline
We offer fixed-fee initial consultations and a range of innovative and flexible funding options for judicial review cases. In some cases, a ‘protective costs order’ (or ‘costs capping order’) can be obtained to remove or limit exposure to costs. It is important to act quickly and seek legal advice at the earliest opportunity.
There are strict time limits which require judicial review claims to be brought promptly and (usually) within 3 months of the decision to be challenged.
Please note that we are unable to undertake such work on a legal aid basis.
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FAQs
What to do if you are seeking to challenge a decision of a public body?
1. Exhaust any alternative remedies, such as complaints, internal reviews or statutory appeals as judicial review should only be used (and may otherwise be refused) where no adequate alternative remedy is available;
2. Act quickly as an application for permission to apply for judicial review must be made promptly and in any event within 3 months from the date when grounds for the application first arose;
3. Contact us for advice.
What is judicial review?
Judicial review is a procedure by which the courts supervise the exercise of power by public bodies to ensure that they act lawfully and fairly. It allows an individual, business or community or interest group to apply to the Administrative Court (a division of the High Court) to review a decision and have it set aside (or ‘quashed’) and, in certain circumstances, to obtain payment of damages. The court can also make mandatory orders or injunctions to compel the public body to comply with its duties or preventing it from acting illegally.
Which decisions can be judicially reviewed?
The boundary between public bodies and the private sector can be difficult to define and is continually evolving. In short, the decisions or actions of any body exercising functions of a public law nature is susceptible to a challenge by way of judicial review. This could include a decisions of a local authority, school, NHS trust, or the police. It can also include a private organisation contracted to carry out a public body's statutory functions. Less obvious examples include a trade organisation, an airport operator and an independent school.
Who can bring a claim for judicial review?
In order to bring an application for judicial review, a party must have ‘locus standi’ or "sufficient interest in the matter to which the application relates". This will usually include any individual, business or organisation that is directly affected by the decision. It may even include an individual with no private interest who has raised an issue of public importance that would not otherwise be raised.
What are the grounds for judicial review?
The recognised grounds for judicial review are:
• illegality (Has the public body misunderstood or misapplied the law? Has it exercised a power wrongly? Has is improperly exercised a power that it does not have (‘ultra vires’)?);
• irrationality (Is the decision "so unreasonable that no reasonable authority could ever have come to it"? Did they take into account irrelevant matters and/or failed to consider relevant matter? Did they make a mistake of fact?);
• procedural unfairness (Has the public body not properly observed the relevant statutory procedures, such as a failure to consult or to give reasons? Has there been a failure to observe the principles of natural justice, such as if the decision-maker has shown bias?);
• legitimate expectation (Has the decision-maker has made a clear and unambiguous representation that it will act in a particular way?)
How does the process of judicial review work?
Before making a claim for judicial review, where possible a claimant should follow the Pre-Action Protocol for Judicial Review, which requires a letter before claim and an attempt at alternative dispute resolution. The objective of the pre-action protocol is to avoid unnecessary litigation.
A claim for judicial review is then started by issuing proceedings in the Administrative Court (which is part of the Queen's Bench Division of the High Court of Justice). There are strict time limits within which a claim must be brought following the making of the decision to be challenged.
It may also be necessary to apply for interim relief, most commonly an injunction preventing a public body from acting on the decision under challenge pending the outcome of the review.
An application for a ‘protective costs order’ (also called a ‘costs capping order’) should be considered at this stage.
A judge will then decide (usually on the papers) whether to grant permission for the claim to proceed. The test is that there is “an arguable case”.
If permission is granted, the claim will proceed to a substantive hearing in court, at which a judge will consider all the relevant evidence and decide the claim.
What outcomes can you expect from judicial review?
The remedies available in judicial review include:
• An order quashing the decision (‘quashing order’);
• An order restraining a public body from acting beyond its powers (‘prohibiting order’);
• An order requiring a public body to carry out its legal duties (‘mandatory order’);
• A declaration setting out the rights or legal position of the parties;
• A stay or injunction; and
• Payment of damages where another established cause of action is available for which damages may be sought.
If a claim for judicial review is successful, the court will not substitute what it thinks is the ‘correct’ decision. This may mean that the public body will be able to make the same decision again, so long as it does so in a lawful way.
How can a claim for judicial review be funded?
A claim for judicial review can be expensive. We offer fixed-fee initial consultations and a range of innovative and flexible funding options for judicial review cases, including (in appropriate cases) full (‘no win, no fee’) or discounted conditional fee agreements. Unfortunately, we are unable to undertake such work on a legal aid basis.
The general rule in judicial review claims is that the losing party will have to pay its own and the other party’s legal costs. In some public interest cases, a ‘protective costs order’ (also called a ‘costs capping order’) can be applied for to remove or limit exposure to the other party’s costs. It may also be possible to obtain ‘after the event’ legal expenses insurance against this risk.
What is a protective costs order?
A ‘protective costs order’ (also called a ‘costs capping order’) removes or limits the cost exposure of a claimant in public interest cases by requiring the defendant to meet the costs of both parties or some other specified amount. The requirements for a protective costs orders are that the issues raised by the claim are of general public importance, the court is satisfied that resolving the issues is in the public interest, the claimant has no private interest in the outcome of the case, it is fair and just to make the order, in light of the financial positions of the parties and the likely costs of the case and the claimant would be likely to discontinue proceedings if the order were not granted and would be acting reasonably in doing so.
