Scope and application of judicial review
Judicial review is the process by which courts exercise supervisory jurisdiction over the performance of public functions by public authorities. CPR 54.1 states that
“application for judicial review” means a request to review the lawfulness of
- of a legal act or
- decision, act or omission in connection with the exercise of a public function”.
Judicial review proceedings in England and Wales usually occur in the Administrative Court, part of the Royal Bench Division of the High Court. The Upper Tribunal also has limited judicial review jurisdiction.
The court may make the following orders following the hearing:
- a quashing order
- a prohibitory order
- a mandatory order
- in specified circumstances, a declaration or injunction, or an award of damages
Judicial review does not ultimately change the decision. This is because the court cannot assume the powers of state authorities. The claimant has the right to apply for damages during the judicial review. This must be clearly stated in the statement of claim.
Grounds for Judicial Review
Lord Diplock classified the basic principles underlying judicial review. These are interrelated principles that include legality, reasonableness and fairness. They have been subdivided for efficiency as follows:
- illegality/error of law – A public authority must understand and comply with the law governing its actions. It must act following the letter of the law strictly follow it and use it by its main purpose and its content.
- irrationality/unreasonableness – also known as “Wednesbury unreasonableness”, after the seminal case on this issue, it became one of the grounds for judicial review. It is quite difficult and complex to prove and consists in proving by the plaintiff that the decision is so unclear that no human being could have made it. Usually, the difficulty and reluctance to intervene in this case will be since the court is rather cautious about issues of specialised knowledge and policy, as it is at the interface between judicial activity and interference in the affairs of state bodies.
- Procedural impropriety/unfairness – also known as “natural justice”, which is procedural fairness depending on all the case circumstances. The basis of procedural justice is the right to be heard without bias and discrimination.
- breach of legitimate expectation – expressed in procedural impropriety- now constitutes a separate ground for judicial review. This principle may occur when a public authority has promised or, in accordance with clear policy and practice, should have obtained one result. Still, it was not obtained due to unreasonable grounds.
Judicial review procedure
The main rules governing the judicial review process are:
1) section 31 of the Senior Courts Act 1981 (SCA 1981) (as amended by Part 4 of the Criminal Justice and Courts Act 2015 (CJCA 2015))
2) CPR 54 (which modifies CPR 8)
3) CPR PD 54A
Other CPR provisions relating to court costs and certain limitations on the court’s powers in these cases may also apply.
The court must first consider several issues to allow the case to proceed to trial, namely:
1) whether the case is subject to judicial review
2) whether the relevant alternative remedies have been exhausted
3) whether the parties have tried to resolve the dispute by other means
4) whether there is still time to file a claim for judicial review.
There is also a court protocol for judicial review, which aims to help the parties
– understand and identify the issues, exchange information and documents
– make an informed decision on whether and how to proceed
– try to settle the dispute or limit the scope of the issues
– avoid unnecessary litigation/costs
– to facilitate efficient management of the proceedings if litigation is unavoidable.
The pre-trial review protocol sets out the standard of procedure that must be followed before an application for judicial review can be made. Except in extremely urgent cases, a potential applicant for judicial review should send a letter as soon as possible after the grounds for such review arise, and the respondent should respond within 14 days.
Regarding the decision to follow the protocol, claimants must determine whether to use it, depending on the circumstances. However, if they choose to use the protocol, the court generally expects the parties to comply with its discovery requirements in a timely manner.
According to paragraph 54.5 of the CPC, applications for judicial review must be filed immediately and, in any event, no later than three months from the date when the grounds for such an application arose (except certain situations where particular deadlines apply, such as in planning and public procurement). The assessment of the timeliness of a claim depends on all the circumstances. Still, in general, the deadlines are strictly enforced, and compliance with them usually results in a refusal to grant the permit. Attempts to take measures for pre-trial resolution, including alternative dispute resolution methods, are not usually considered sufficient grounds for extending the time limits.
Claimants must serve the defendants and third parties with the claim form within 7 days of the issuance of the response under CPR 54.7. Confirmation of service must be sent within 21 days. Failure to comply with the relevant time limits will result in sanctions against the claimant.
Under SCA 1981, s 31, the court may dismiss a claim if it is highly probable that the result for the claimant would have been substantially the same even if the challenged conduct had not occurred. However, there are cases where reasons of exceptional public interest may oblige the court to continue the proceedings.
Under CPR 54.11A, an oral hearing may be held to decide whether to grant judicial review if it is necessary to consider arguments on the issue.
If the court grants permission for judicial review, it may also make case management directions under CPR 54.10(1) for the further progress of the case. The defendants have 35 days from the date of service of the order granting leave to review and file a statement of defence and evidence supporting their position.
Evidence, disclosure and duty of candour in judicial review proceedings.
An application for judicial review must have some grounds on which the court will already make a decision. Practice Direction 54A on judicial review states that disclosure is not required unless the court decides otherwise. Disclosure may be used only in certain cases to clarify the full picture when the facts are inconsistent and incomplete.
The principle of candour is also important. It consists in providing reliable information and facilitating a fair decision to the maximum extent possible. This obligation is imposed on all parties, but special attention is paid to the defendant – the public authority.
Costs in Judicial Review proceedings
Court costs are one of the key points to pay attention to. Thus, the general rule associated with the costs of judicial review is that they are incurred after the fact. However, due to the peculiarities of judicial review, the plaintiff has additional benefits in the form of limitation or cancellation of court costs.
The court practice has shown the importance of regulating the issue of costs related to this type of case, as the defendant is a state body created to satisfy the needs of people. Thus, it has become important to regulate the issue of limiting or cancelling the plaintiff’s expenses in case of losing the case.
The proposed way to overcome this problem in The CJCA 2015 is currently quite effective. The most important for us are ss 87-90, which regulate intervener’s costs and costs capping.
According to the amendments made by this subsequent law, instead of PCO (previously protective cost orders), there is JRCCO (judicial review cost capping orders). The essence of a JRCCO is the simultaneous issuance of an order to limit or cancel the amount to be paid by the plaintiff in the event of a loss and a stagnation order against the defendant in the event of a win.
JRCCOs can be filed only by the plaintiff, due to its less favourable position than the state body, based on the latter’s nature.
Written by Vlad Krupski
