When can a judicial review be made?
There are three potential grounds of challenge:
- Irrationality - This ground can be interpreted as ‘a decision so unreasonable that a reasonable person would consider it so’. Irrationality has a high threshold. Therefore, this ground can be difficult to meet as it requires ‘something overwhelming’.
- Illegality - This ground is met if the public body has breached the law in relation to their decision/action/inaction. For example, 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.
- Procedural unfairness - This ground would be satisfied if the public body abuses their power and a required procedure is not followed. Public bodies must act impartially, procedures followed must not be unfair or bias, ‘fair hearings’ must be held before decisions are made and often reasons for decisions must be provided.
There must also be no appropriate alternative method available to resolve the dispute other than through judicial review. For example, if there are internal complaints procedures, it is likely that these procedures must first be exhausted except if there is a risk of immediate detriment.
Judicial review case examples
- A claim of judicial review arose from the failure of a social services department (local authority) to assess the needs of a disabled child, despite repeated attempts by a desperate mother. This claim was based upon grounds of illegality (since the local authority failed to complete an assessment required by law) and procedural unfairness.
- Another example is a case concerning a local authority’s ongoing failure to re-assess the needs of our client and the decision to refuse to accommodate and provide housing under Section 20 Children Act 1989.
- Judicial review proceedings were initiated in another case based on the decision of a local authority refusing to undertake a re-assessment of our client, whom we believed was in need of community care services pursuant to Section 47 NHS and Community Care Act 1990. Our client’s care was inadequate and no proper grounds or reasons were provided for the refusal of this service. Furthermore, the decision of the local authority was made despite there being a material change in facts since our client’s first assessment.
What is the procedure of judicial review?
If it is decided that the grounds are met for judicial review, what is known as a ‘letter before claim’ will firstly be sent to the public body concerned. This should detail the facts of the case: why the claimant believes the decision/action/inaction of the public body is unlawful and what desired action the claimant seeks to be taken in redress. The public body should be advised that if no satisfactory response is returned within the specified time limit (usually 14 days) judicial review proceedings will be issued. If no satisfactory response is returned, then an application for permission will be made to the administrative court.
- The necessary paperwork will, be prepared, sent to the court and a copy sent to the public body.
- If necessary, a request for an urgent order may be made in the application form to prevent the public body taking further action that will prejudice the case.
- Alternatively, an order may be sought requiring the public body to do something to maintain the position of the individual e.g. keep providing a care package. This depends on whether or not the public body agrees to put their decision on hold until there is a final outcome in the case. The instructed solicitor will advise the claimant whether this is applicable.
- The public body will become know as the defendant and will have the opportunity of responding to the claim
- A judge will then consider the written arguments and decide whether or not to grant permission to proceed with the judicial review to a full hearing. To make such a decision, all documentation must be taken into consideration.
- If permission is not granted it can be requested that this decision is reconsidered at an oral hearing, providing this request is made within 7 days of receipt of the judge’s refusal. A fee is payable to do this now following amendments brought in by the government
- 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. An oral hearing will usually be allocated a 30 minute time slot. If this request of reconsideration is also refused, the decision can then be appealed to the Court of Appeal (again, providing that it is in a 7 day time limit). However, any applications for permission to apply for judicial review, lodged on or after 1 July 2013, do not have a right to renew the application at an oral hearing if refused and identified as totally without merit. Further details can be found in CPR 54.12(7).
- If permission is granted to proceed with the judicial review to the full hearing, it will have to be prepared for by both parties in which the judge will consider in great detail the claim. This could take place a number of months from when the claim was first issued.
- The defendant has to provide further details of the reasons why they say the application is wrong within 35 days together with any documentation they intend to rely on setting out in detail the basis on which the claim is contested and any written evidence that is to be relied upon.
- Both parties then need to set out their arguments for the final hearing – called skeleton arguments.
- 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.
How can a judicial review be paid for?
Pursuing a claim in judicial review can be expensive so it is important to carefully consider the merits of the case on a stage by stage basis. Unsuccessful claimants can be ordered to pay the defendant’s costs in addition to their own. There are other options available to fund judicial review rather than having to fund the claim privately. If a claim has a reasonable chance of success, it might be the case that such a claim can be publicly funded through legal aid. There are however various criteria that need to be met for eligibility. The responsibility for the provision of public funding is held by the Legal Aid Agency.
Two means tests must be satisfied to qualify for legal aid: an income test and a capital test. Furthermore, the responsible solicitor must determine that the claim has reasonable prospects of success. The responsible solicitor will be able to advise further on an individual’s eligibility.
What are the potential outcomes of a successful judicial review?
- 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.
It is important to note that any remedy is discretionary. This means it is entirely up to the judge whether or not to award.
Is there a time limit to bring a claim?
Yes! It is highly important that judicial review cases are brought promptly. The latest time a judicial review application can be brought is usually three months from the date of the decision (although some exceptions do apply).
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 0175 321 5096.