Judicial review specialists
Stephensons are specialists in pursuing cases on behalf of individuals whose human rights have been affected by the actions, decisions or failures of a public body.
The team offer advice in a number of areas of law which can lead to court proceedings known as a judicial review. Our experience includes cases against the Secretary of State for Justice, Home Office, Legal Aid Agency, Ofcom, local authorities, CICA, DBS, chief constables and coroners.
This is a special type of court proceeding in which a judge reviews the lawfulness of a decision or action taken by a public body. It is a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.
The court will not substitute what it thinks is the ‘correct’ decision, rather it will look at the way in which the decision has been taken.
This may mean that the public body will be able to make the same decision again, so long as it does so in a lawful way.
These type of proceedings need to be taken ‘promptly’ or usually within three months of the decision being challenged (much shorter periods apply to planning and procurement / public tender types of case).
When can a judicial review be made?
There are three potential grounds of challenge:
Illegality / Unlawfulness - This ground is met if the public body has breached the law in relation to their decision/action/inaction. For example, the public body may not have had regard to its statutory duties to provide a service, or there may have been a mistake about facts made which suffices as an error in law. Breaches of human rights may also form an illegal decision.
Irrationality / Unreasonableness - This ground involves the decision under challenge being considered ‘so unreasonable that a reasonable person would consider it so’. Irrationality has a high threshold, much higher than being unreasonable would be considered in day to day use of the term. The ground can be difficult to meet as it requires ‘something overwhelming’ and the court will often give a decision maker in a specialist position a wide margin of appreciation as to what is reasonable.
Procedural Irregularity / Unfairness - This ground normally involves a fundamental error in a process which undermines it as a whole and would change the final outcome. Examples may include situations where there is clear bias in a decision such as a person reviewing their own previous decision or a failure to allow representations where required.
A judicial review is known as a remedy of last resort, so if alternatives exist to solve the issue then these should normally be pursued e.g. an internal complaints procedures, ombudsman or action in private law. In some cases there are reasons to pursue a judicial review because alternatives wold not offer an effective remedy due to then immediacy of the issue or a lack of power to require something to be done (rather than complain about it not having been done).
What is the procedure of judicial review?
Every Judicial Review case is unique, but generally the procedure breaks down into three parts:
Instructions will be taken and evidence considered by your legal team, if grounds for judicial review can be identified then a letter will be sent to the opponent setting out why it is believed their failure to act, action or decision is unlawful and may be challenged. The letter will set out the facts and what needs to be done to avoid court proceedings. You will become known as the claimant
The opponent should consider this correspondence and respond in the given time frame setting out whether they will agree to take steps to meet the concern or disagree with the issues that are raised.
If no satisfactory response is received then the next step will be to issue proceedings at court.
- The necessary paperwork will, be prepared, sent to the court and a copy sent to the public body.
- A court fee is payable to lodge papers into court
- This may include an urgent request for an order to stop something happening or seek shortened timescales and a faster hearing process.
- The public body will be sent a copy of the court papers and given the opportunity to respond to the claim setting out their case. They will be known as the defendant. Other parties may also be involved as defendants or interested parties (this may occur when you challenge a decision made by an organisation who has considered a decision by another party, or the decision of the court will affect that organisation).
- A judge will then be asked to consider the case papers and may either:
- Grant permission to seek judicial review
- Refuse permission to see judicial review or
- Arrange a hearing to consider matters further (sometimes this means the court will consider the full case and make a rolled up decision at the final hearing if the matter is urgent).
- If permission is not granted then an application can be made to reconsider the decision at an oral hearing, unless the Judge has decided the case is so poor this should not be allowed.
- A court fee is payable to seek an oral renewal hearing
- An individual may represent themselves at such a hearing, have an advocate to do so or seek permission to have another individual speak on their behalf.
- The judge may then
- Grant permission or
- Refuse permission.
- It may be possible to appeal this to the Court of Appeal but there is a very short timescale to do this and additional court costs.
- If permission is granted to proceed with the judicial review to the full hearing then a further court fee is payable and the judge will set out directions on how the case is due to proceed including any deadlines to provide further evidence.
- A more detailed response to the claim will normally be prepared by the defendant and any evidence relied on should be provided at the same time.
- The parties are under a duty to review their position and if the case is no longer required or in fact settles then the court should be advised.
- The final hearing will be listed and the parties will be asked to prepare an outline of the arguments they intend to make at the final hearing – called skeleton arguments.
- The claimant (You or your lawyer) will also need to provide the final bundle for the court.
- The length of the final hearing is dependent upon the complexity of the issues involved. The decision will normally be delivered following the hearing, which may take some weeks. In urgent cases the decision may be given immediately.
What are the potential outcomes of a successful judicial review?
It is important to note that any remedy is discretionary. This means it is entirely up to the judge to decide whether to make an order – these could include:
- Quashing Order - Renders the original decision/action/inaction void and the public body will be required to reconsider.
- Prohibiting Order - Forbids the public body from taking certain action which the court considers unlawful.
- Mandatory Order - Requires that the public body take certain action.
- Declaration - Could be a formal statement that a legislative provisions is incompatible with the Human Rights Act 1998 or that a certain provision is to be interpreted in a particular way.
- Compensation - Damages may be awarded, however, this remedy is rare.
If you wish to be provided with further information on any of the above, do not hesitate to contact Stephensons’ expert civil liberties team who specialise in the area of judicial review on 0161 696 6159.