A judicial review (JR) is a procedure where decisions of public bodies are scrutinised by the Court, to see whether the decision was both fair and lawful.
High-profile judicial reviews include the notification procedure used 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” includes many different types of authority, from the top of Government, all the way to decisions issued by local authorities.
In the context of the energy sector and where judicial reviews are sometimes needed, the term “public body” can also include decisions by industry regulators that exercise delegated functions, such as Ofgem or Ofwat.
Who can bring a judicial review claim?
A judicial review is not an appeal process, nor is it to be used to try and claim damages compensation. It is also not a means by which any person can challenge any decision they dislike. The Court will carefully look at your application to see whether you have “sufficient interest” to bring JR proceedings before it.
“Sufficient interest” generally includes a party which is directly affected by the decision by the public body – although it can be interpreted a bit wider. 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. The party against whom the decision is made should be deemed to have enough of a sufficient interest to bring proceedings.
How do you bring a judicial review claim?
The Court will expect the claim to be brought as a last resort. If there is a complaints 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 by you before taking any further step.
When these other procedures have been exhausted, then you can you consider a judicial review claim. The time limit to issue a JR claim through the Court is incredibly tight. The legislation says that it should be issued promptly and 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 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 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 happens in judicial review proceedings?
There are certain factors which the Court will take into account 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 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
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 professional legal advice before taking any steps in respect of it.
Our judicial review expert, Ieuan Jones, is head of our dispute resolution team and has undertaken several judicial reviews for the energy sector. If you believe you have a potential claim, or wish to discuss the JR procedure further, please get in touch with one of our dispute resolution team. Call the team today on 01752 203500. Alternatively email enquiries@GAsolicitors.com.
Unfortunately, we are unable to deal with any queries relating to planning law or planning decisions.
