Judicial Review: an overview
Head of dispute resolution, Ieuan Jones, takes a brief look at Judicial Review, including what it is, when it is used, and how you may be able to use it.
What is Judicial Review?
Judicial Review (JR) is a procedure where decisions of public bodies are scrutinised by the court, to see whether the decision was fairly and lawfully arrived at.
Some very high-profile Judicial Reviews have made the headlines in recent years, including one examining the notification procedure by the Government to leave the EU under Article 50, and another concerning the Government’s decision to prorogue Parliament.
We can see in each of these a common thread: someone seeks to challenge a decision made by the Government or other public body, to see whether its powers have been exercised in the correct way.
“Public body” here is deemed to include many different types of authority, from the top of Government, as in the above examples, all the way to decisions issued by local authorities.
What does Judicial Review involve?
Before looking in a bit more detail about what JR is, we should perhaps say a little bit about what JR isn’t. It is not an appeal process. Nor is it to be used to try and claim damages compensation. There are already ways in which a party can try to achieve these through the court.
Judicial Review is also not meant to be a means by which any person can challenge any decision they dislike. Being upset by a report you’ve seen on the news will not be enough to get you through the court door to challenge a public body’s decision. The court will take time to look carefully at your Judicial Review application to see whether you have “sufficient interest” to bring proceedings before it.
“Sufficient interest” will, generally speaking, include a party which is directly affected by the decision by the public body – although do note that it can be interpreted a bit wider than that. For example, campaign and pressure groups on specific issues have also been found to have “sufficient interest” in the past – although the courts have toughened their stance on this somewhat in recent years.
In our experience, where a regulator such as Ofgem has issued a decision in relation to a large-scale energy project, then this decision could be subject to Judicial Review by the court and the party against whom the decision is made should be deemed to have enough of a sufficient interest to bring proceedings.
How do you go about bringing a Judicial Review claim?
The court will expect the claim to be brought as a last resort. If there is a complaint or other type of procedure which could be used for the public body to review its own decision first, then the court will expect this to be followed in full before you take any further steps.
When these other procedures have been exhausted, only then can you consider bringing a JR claim. Take note that the time limit to issue a Judicial Review claim through the court is incredibly tight. The legislation says that it should be issued promptly and in any event within three months of when the cause of action arose (this time limit is even shorter for certain planning and procurement decisions).
Added to this, the court will, as usual, expect you to follow the pre-action protocol to attempt to resolve the issue with the public body beforehand. The court is very unlikely to be impressed if any deadline is missed and may still dismiss your claim even if it is issued within the correct time limit, if it decides that it was not issued promptly enough.
If you intend to bring a Judicial Review claim through the court you must be aware of the procedure, be very pro-active, and be willing dedicate the appropriate time and resources (including cost) to go through with it. We strongly recommend you do this under specialist advice at all stages.
What actually happens in Judicial Review proceedings?
Let’s say you have managed to get your JR claim to court in time and the court has decided you have sufficient interest to bring the claim. What then?
Summarising the entire Judicial Review procedure would be too much to go through in a brief article. However, what we can say is that there are certain factors which we know the court will take into account in order to make its judgment.
Generally speaking, the court could decide whether the public body’s decision was unfair or unlawful, in one or more of the following ways:
- Illegality – the decision was “illegal,” not in the criminal sense, but in the sense that the public body has exercised its powers in the wrong way, or acted beyond the powers delegated to it.
- Irrationality – the decision was “irrational,” in the sense that no authority acting reasonably would have made it, which could mean they took into account matters which were irrelevant or failed to consider relevant matters.
- Procedural unfairness – the authority did not follow its statutory procedures correctly, or did not observe principles of natural justice in making its decision.
- Legitimate expectation – there could have been an expectation that the public body should act a particular way when making its decision, which it did not do.
What can the Court order?
Depending on the Court’s judgment as to the unlawfulness or unfairness of the decision, this will then determine what should be done about it. The Court will usually make one of the following orders:
- Quash the decision
- Order the public body to take a certain action in respect of its decision
- Prohibit the public body from taking action in respect of its decision
As should be clear from the above, Judicial Review is a complex and high-risk area which requires detailed knowledge of the procedure and its practical implications. We therefore strongly recommend you seek legal advice before you consider taking any steps in respect of it.
If you believe you have a potential Judicial Review claim, or wish to discuss the JR procedure further, please get in touch with a member of our experienced dispute resolution team. You can call us on 01752 203500 or email me directly via ieuan.jones@GAsolicitors.com.
Please note: Unfortunately, we are unable to deal with any queries relating to planning law or planning decisions.