An Introduction to Judicial Review

What is judicial review?
Judicial review is a way of challenging the decisions, acts (and sometimes the failure to act) of a public body, because it has not acted lawfully. It is a court procedure, brought in a branch of the High Court known as the Administrative Court, or in relation to certain types of case, in the Upper Tribunal. The court will not accept a judicial review on any subject from any person. To be permitted to bring a claim for judicial review, the court will expect you to have some sort of ‘standing’. This will usually mean that you are an individual who is affected in some way (maybe by being the subject of the decision, or because it affects your community), or that you are an organisation with sufficient interest in the issue. By bringing a judicial review claim, a claimant can also (if the claim is successful) get a court to set aside a decision, practice or policy of a public body that affects not just the individual claimant but also everyone else in the claimant’s position. So one judicial review case can affect thousands of people.

What decisions, acts, and failures to act can be challenged by judicial review?
Decisions, acts, and failures to act by public bodies exercising their public functions are all potentially challengeable by judicial review. Public bodies may be thought of as bodies that deliver a public service. They may include government ministers, local authorities, chief police constables, prison governors, NHS Trusts, regulatory bodies such as the Solicitors Regulation Authority or the Office for Standards in Education (Ofsted), and courts and tribunals themselves.

Time Limit
Most judicial review cases must be brought before the court promptly, and in any event within three months of the decision or action being challenged. The key word is ‘promptly’ – in certain cases three months may not be “prompt” enough. It is best to view three months as a longstop rather than as a deadline to aim for. These time limits mean applications should be made as soon as possible once it is clear that the case is suitable for judicial review. If you think you may have a case you should seek specialist advice immediately.

Procedure

  1. Pre-action stage
    Where a public body has taken a decision you think is unlawful it is essential, if there is time, to write a letter to the public body setting out why you think they have acted unlawfully and what you want them to do to rectify the situation. You should state your intention to apply for judicial review if they do not confirm they will take the action you have specified within a certain time, usually 14 days. The grounds for judicial review are illegality, irrationality and procedural impropriety. These categories are not exhaustive or mutually exclusive.
  2. Permission stage
    If there is no satisfactory response to the letter before claim, the next step is to make an application for permission to apply for judicial review. A judicial review claim form and statement of facts and grounds (which include the legal arguments) are lodged with the court, together with supporting documents. The papers are served on the public body, and on anyone (be they individuals, companies, or public bodies) who will be affected by the proceedings and may wish to participate. All of the papers are put before a judge who decides whether to grant permission to proceed to a full hearing.
  3. Final hearing
    If permission to apply for judicial review is granted, your case will go to a final hearing. Usually within 35 days of the decision to grant permission the defendant must file and serve its detailed grounds of resistance, setting out in more detail the basis on which it is defending the claim. That must include any written evidence it wants to rely on. The case is then set down for hearing before a judge in the Administrative Court. When you bring proceedings for judicial review you are asking the court to grant you one or more orders. These are known as ‘remedies’ such a quashing order, prohibiting order, mandatory order, declaration, declaration of incompatibility or damages.

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