Out-Law / Your Daily Need-To-Know

Judicial review is an audit of the legality of decision-making by public bodies in the UK.

The scope of judicial review is limited both in its availability and function: the role of the court is not to re-make the decision being challenged, or to inquire into the merits of that decision, but to conduct a review of the process by which the decision was reached in order to assess whether that decision was flawed and should be revoked.  The process of bringing a claim is streamlined, and 'interested parties', who are neither applicants nor defendants, are often included in the proceedings when they have an interest in the outcome.

Which decisions can be judicially reviewed?

All bodies exercising functions of a public law nature are susceptible to challenge. It is the nature of the act or decision being challenged, rather than the identity of the body in question or the source of its powers, that matters.

This means that the boundary between public bodies, whose decisions can be subject to judicial review, and the private sector, whose decisions generally are not, is constantly evolving.

Commercial judicial review

Historically judicial review has been perceived primarily as a remedy for aggrieved individuals in immigration and planning cases. However in recent years it has been used more widely by commercial parties to challenge a variety of public law decisions, from EU directives and primary legislation, to the decisions of regulatory authorities, both statutory and non-statutory including industry trade associations, the Financial Conduct Authority, Prudential Regulatory Authority and HM Revenue and Customs.

City regulatory bodies, even those that are non-statutory, may be reviewable, but generally only where such bodies have been "woven into the fabric of public regulation" and all other remedies have been exhausted.

For commercial bodies, decisions relating to the procurement of commercial contracts by public bodies may be challengeable by way of judicial review, but possibly only where there has been a suggestion of fraud, corruption or bad faith, irrationality or a failure to follow a statutory process.

Sufficient interest

A party must have sufficient interest or “standing” in the matter to which the judicial review relates in order to be involved in the process.

Although the courts have avoided defining exactly what amounts to a sufficient interest, the general trend over recent years has been toward a liberalisation of this requirement, with the courts increasingly unwilling to dismiss a meritorious application for lack of standing. Pressure groups will generally be treated as having sufficient standing.

Timing and alternative remedies

An application for permission to apply for judicial review in England and Wales must be made “promptly” and in any event not later than three months from the date when grounds for the application first arose. The time limit is further reduced to six weeks for planning decisions and to one month in public procurement cases.

In Scotland and Northern Ireland, the requirement for an application to be brought "promptly" has been removed, so that the only requirement is for applications to be brought within three months. Again, shorter timeframes specified under statute apply in certain cases.

In all UK jurisdictions, there is an expectation that judicial review will be the remedy of last resort. Parties which fail to engage with the protocol on pre-action correspondence, or to exhaust alternative methods of resolving their dispute, risk facing costs penalties, except where the court is satisfied that good reasons for not imposing a sanction exist.

Grounds for judicial review

Judicial review can be sought on the grounds that a decision is:

  • illegal - arises when a decision-maker misdirects itself in law, exercises a power wrongly, or improperly purports to exercise a power that it does not have, which is known as acting 'ultra vires';
  • irrational - a decision may be challenged as unreasonable if it "is so unreasonable that no reasonable authority could ever have come to it";
  • procedurally improper – a failure to observe statutory procedures or natural justice; or
  • in breach of legitimate expectation – when a public body has failed to act in line with an expectation that it has created by its own statements or acts.

A common application of these grounds is for judicial reviews to challenge the actions of public bodies as "illegal" under the Human Rights Act. The actions of the devolved administrations in Wales, Scotland and Northern Ireland may also be challenged by way of judicial review, by reference to their powers as set out in the devolution settlements.

Jurisdictions across the UK

Applications for judicial review in England and Wales may be made to the Administrative Court, which is a specialist court within the High Court. It sits in London, Birmingham, Cardiff, Leeds and Manchester.

In Scotland, a petition for judicial review may be lodged in the Court of Session, which sits in Edinburgh.

In Northern Ireland, an application for judicial review may be lodged with the High Court, which sits in Belfast.

In each jurisdiction, the application faces a two-stage process. A claimant or applicant is first required to demonstrate that they have an arguable case in order to secure the permission or leave of the court to proceed to a full hearing of their application.

Remedies

The question of remedies is often critical in judicial review proceedings, as it may determine not only whether it is worthwhile bringing a claim, but also whether permission will be granted to bring the claim.

One or more of six forms of final relief are available, and all are at the discretion of the court. These are:

  • a declaration;
  • an order quashing the decision in question (quashing order);
  • an order requiring the body under review to carry out its legal duties (mandatory order);
  • an order restraining the body under review from acting beyond its powers (prohibitory order) – this is rare as an injunction will usually suffice;
  • a stay or injunction;
  • damages – these are very rare in judicial review cases.

Following reforms in 2015, the Administrative Court in England and Wales cannot usually grant a remedy to the complainant where the outcome for them would not have been substantially different, if the conduct complained of had not occurred. However, the court retains a discretion to grant a remedy in these cases if appropriate "for reasons of exceptional public interest".

Future reforms

In March 2021, the independent Faulks review reported to the UK government on how judicial review works in England and Wales. On publication of the report, the government launched a consultation on a number of proposals for reform in England and Wales, including:

  • restricting quashing order remedies in some circumstances;
  • removing the requirement for claims to be brought ‘promptly’;
  • allowing parties to agree an extension to the three-month time limit for a claim, if they wish;
  • providing different procedural tracks for urgent claims.

The consultation runs until the end of April 2021. The government is expected to legislate on these issues later in 2021 or 2022.

For advice on judicial review in Scotland, please contact Jacqueline Harris. For advice on judicial review in Northern Ireland, please contact Deirdre Cormican.