What is a judicial review?

Judicial review is a specific type of court proceeding. It is not the same as an appeal. In a judicial review, the court is not concerned with the outcome of a decision but rather how the decision-maker arrived at the decision in question. In other words, did the decision-maker make the decision in a lawful way, apply a fair process and come to a reasonable conclusion on the information which informed that decision.  Challenges can also be brought on the basis of a failure to act.

Who is amenable to a challenge by way of judicial review?

Generally, judicial review applies to the decisions of public bodies when performing a public law function. Such bodies can include central Government departments such as the Home Office (UKVI), Department of Health, Department of Work and Pensions, Crown Prosecution Service or Ministry of Justice. They can also include local authorities (Councils) and local health authorities.

It is also possible in judicial review proceedings to challenge the decisions of inferior courts, such as the county courts, magistrates’ courts and coroners’ courts, or tribunals in circumstances where there is no right of appeal to a higher court or tribunal against the decision in question.

What kinds of decision does judicial review apply to?

The areas of law covered by judicial review are wide-ranging and can include, but are not limited to, asylum and immigration, prison, mental health, healthcare, community care, inquests, welfare benefits, and planning law.

What court deals with judicial review?

Most claims for judicial review are dealt with by the Administrative Court, which is part of the High Court. The Administrative Court is based at the Royal Courts of Justice in London and several regional hearing centres in Leeds, Manchester, Birmingham and Cardiff.

However, some claims for judicial review have been transferred from the Administrative Court jurisdiction. Most immigration and asylum claims, with a few exceptions, now fall within the jurisdiction of the Upper Tribunal (Immigration and Asylum Chamber) and First-tier Tribunal decisions in CICA claims which have no right of appeal are dealt with by the Upper Tribunal (Administrative Appeals Chamber).

What remedies can be achieved in successful judicial review challenge?

Judicial review cannot generally be used as a means for obtaining compensation. Damages are rarely granted as a remedy by the Courts.

The remedies the court can award in a judicial review are discretionary. They are generally limited because the courts are concerned with the process by which a decision-maker arrived at his/her conclusion or failed to act rather than the outcome itself. If a claim is successful, the main remedies awarded by the Court are likely to be limited to one or more of the following:

  • Quashing Order – this results in a quashing (voiding) of the decision or order in question;
  • Mandatory Order – this requires the authority to perform a specified act or duty;
  • Prohibiting Order – this prevents a decision-maker from acting or continuing to act in a certain way;
  • Declaration – this is a determination by the court of the law and/or the individual’s rights in the claim.

What are the grounds upon which a judicial review challenge can be brought?

These are split in to 3 main heads:

  • Illegality: This can be argued in cases where it can be shown that a decision-maker has acted outside of or in excess of his powers, has not applied the law correctly, has made a significant error of fact, has failed to take into account relevant considerations or has taken into account irrelevant considerations, or has fettered his/her discretion;
  • Irrationality: This is usually argued in cases where a decision is perverse because no other reasonable decision-maker considering the same information could have come to the same decision. This is a high test to satisfy as different decision-makers looking at the same set of facts may well come to different decisions without those different decisions being considered unreasonable. Mere disagreement with the decision which has been made will not therefore suffice under this head. Irrationality can also include cases where it can be shown that the decision-maker has used his/her powers for improper motives or has acted in bad faith or dishonestly. These are again difficult arguments to succeed upon. Finally irrationality can include the requirement of proportionality. This is a principle which derives from ECHR law and requires a decision to not be disproportionate to the issue it is intended to address.
  • Procedural Impropriety: This requires decision-makers to act fairly. This  includesprinciples such as the need for decisions not to be tainted by bias, for consistency in decision-making, and to be given reasons for a decision. It can also include the right to be heard and the right to be consulted before a decision is made.  Finally, fairness requires a decision-maker to act in accordance with an individual’s legitimate expectation which has been created as the result of an express promise, policy, implication or past practice.

Are there alternatives to judicial review?

In certain public law situations there are alternatives available, such as an appeal, pursuing a complaint through the decision-maker’s internal complaints procedure or reference to a relevant Ombudsman to investigate the complaint.  Where there is a suitable process alternative to judicial review which will achieve the remedy sought, this must be pursued. The rules are strict: judicial review can only be used as a course of last resort and proceedings are prohibited where there is a suitable alternative.

Is there a time limit for bringing a judicial review?

There is a strict time limit for judicial reviews; in most cases they must be made promptly and, in any event, within 3 months of the decision subject to the challenge.

In some cases though the time limit is even shorter e.g. in planning cases the time limit is 6 weeks, in public contract claims it is 30 days and in claims relating to a decision of the Upper Tribunal the deadline is reduced to 16 days.

What is the procedure for judicial reviews?

Prior to issuing any claim for judicial review, it is necessary, in most cases, to send the decision-maker a letter known as a letter before claim or pre-action protocol letter setting out the decision subject to challenge, the reasons for the challenge (grounds) and the remedy sought. The decision-maker must then be given sufficient time to respond. This is normally set at 14 days but can be shortened if the circumstances justify. This stage is known as the ‘Pre-Action’ stage. Often cases will settle at this stage without further action being required.

If the decision-maker fails to respond or responds negatively, it will be necessary to proceed with issuing the claim for judicial review.

The claim is initially made on the papers by completing a claim form, preparing the grounds of claim and providing a bundle of documents in support of the claim. There is a fee for issuing judicial review proceedings.

Once the application is issued by the Court, copies are then sent to the decision-maker who has the opportunity to respond. Once any response is provided, the paper application is considered by a judge who will have to decide whether the claim is ‘arguable’. If he or she considers the claim to be ‘arguable’, permission will be granted to take the claim to the next stage. If permission is refused, there is an opportunity for renewing the application at an oral hearing.

The next and last stage of the judicial review is for there to be a final hearing in front of a judge who, after hearing legal arguments from both sides, will make a decision.

How long will a judicial review take?

This depends on how far the case proceeds and on many factors which are out of our control e.g. how busy the Court is. Generally, however a judicial review up to a final hearing can take 9-12 months to conclude. It may take less time if, for example, the decision-maker settles the claim early.

There is also a process for expediting proceedings or for obtaining interim relief if a claim requires urgent consideration or an immediate, albeit temporary, remedy is required whilst the claim proceeds.

Is legal aid available for judicial review?

Yes, legal aid is available for judicial review claims providing both the merits and financial criteria are satisfied. There are two types of legal aid available, Legal Help and Legal Representation. Legal Help covers any initial work in assessing the claim and completing the pre-action stage of the litigation but not court proceedings. At the point court proceedings are anticipated, it is necessary to apply to the Legal Aid Agency for Legal Representation.

To obtain funding, it is necessary to show (i) that a case has more than 50% chance of success and that there is sufficient benefit in bringing the claim and (ii) that an individual’s capital and income fall below the relevant thresholds set by the Legal Aid Agency.

We can assist with any assessment of eligibility and applications for legal aid.

When can an appeal be made?

An appeal can be brought to the Court of Appeal regarding an error of law made by the lower court in a judicial review claim. Being able to appeal depends upon the outcome of the original case and the reasons given by the Court in its judgement. A specialist solicitor can conclude whether you have valid grounds for appeal.