A Party Has Standing to Seek Judicial Review of an Administrative Determination

What is judicial review?

It is an action brought against:

a public trunk; or;
a body exercising a public function
(together referred to every bit a "public body" in this document)

to get the courts to review the lawfulness of an enactment, decision, act or omission in relation to the exercise of a public function.¹

The courts are not concerned with the merits of a conclusion, only rather the way in which it has been made. The process seeks to ensure that public bodies act in accordance with their legal obligations and do not corruption their powers. Failure by a public body to deed lawfully or adequately in making a conclusion may render that decision invalid.

Who may exist the subject of a judicial review?

The sort of determination-makers whose decisions can be challenged may include government ministers, local or central government authorities and departments, local NHS trusts, various courts and tribunals. These sorts of decision-makers may exercise legislative or prerogative powers.

Nonetheless, it is of import to note that the courts will examine the nature of the act or determination in question to determine whether it involves a trunk exercising powers with a sufficient "public element"². In certain circumstances, decisions past Metropolis regulators, trade associations, and commercial organisations contracted to carry out a public torso's statutory functions accept all been held to be reviewable.

Who may apply for judicial review?

To bring a judicial review, a claimant must have a "sufficient interest" in the matter to which the merits relates.³ This is oftentimes referred to as "standing".

It may be the case that a claimant has a straight financial or legal interest in the upshot of the application which will get in easier to show "sufficient interest". All the same, the courts have generally adopted a liberal arroyo when determining whether a party has "sufficient interest" at the permission phase as it is desirable that claims in the public involvement are brought earlier the courts. For instance, campaign groups acting in the public interest may be able to demonstrate sufficient interest if the issues they promote are affected.

Whether a claimant has "sufficient involvement" is considered at a preliminary "permission" stage. This is a filtering mechanism that happens in advance of a full hearing on the grounds of review and remedies.

Interested Parties & Interveners to judicial review

If "direct affected" by a judicial review claim, a third political party volition be accounted to exist an "interested party" and can participate in the proceedings, rather than bringing separate judicial review proceedings themselves. The merits course must fix out the name of whatsoever person the claimant considers to exist an "interested party". It must be noted that the courtroom loses jurisdiction to hear them every bit interested parties if they cease to exist "straight affected", whether by reason of the main merits changing, or by reason of them advancing different claims. If the court loses jurisdiction, it cannot make any decisions in relation to the interested parties.

The courts also have the power to permit any person to file evidence or make representations at the judicial review hearing whether or not they are direct affected by the merits⁴. Such a person is referred to every bit an "intervener".

Procedure

Judicial review claims proceed in two main stages: the permission stage and the substantive phase. In order to weed out claims without merit, a party must be granted permission from the court to progress its claim for judicial review; if permission is granted then a substantive hearing of the claim volition follow.

Compliance with the Pre-Action Protocol for Judicial Review

If a claimant is considering bringing an action for judicial review information technology should start by complying with the Pre-Action Protocol for Judicial Review, as failure to do and then may have cost implications. It should also consider whether at that place are any bachelor alternatives to judicial review, such as a statutory complaints process.

Commencing Proceedings

Proceedings themselves are commenced past filing a claim form⁵ for judicial review with the Administrative Court⁶. This must be done promptly and non subsequently than 3 months after the grounds to brand the merits arose^seven. The three month fourth dimension limit may not be extended past agreement betwixt the parties^viii , or because parties are complying with the requirements of the Pre-Action Protocol. The time limit is reduced to six weeks for planning decisions and 30 days in public procurement cases. It is important to note that a court may determine that a claim form was not filed "promptly" fifty-fifty if information technology is filed within the 3 calendar month deadline.

The nature of judicial review means that, unlike near claims, evidence must exist submitted (usually in the form of a witness statement and supporting documentation) at the very beginning of the claim along with the claim form. The claimant has a duty to disclose all cloth facts. If the claimant decides to use for a Judicial Review Costs Capping Social club (JRCCO) it is normally applied for at this stage either in the claim grade itself or in an accompanying certificate⁹.

The claimant must serve the claim form on whatever accused and any interested party within seven days after the date of event. The defendant must and then file an acknowledgement of service, as must any interested parties served with the claim form who intend to accept function in the proceedings. An acknowledgement of service must also be served on the claimant and any other person named on the claim form after it has been filed.

If the person filing the acknowledgement of service intends to contest the claim then the class must set out a summary of grounds for doing so. If the accused intends to contest the claim because it is of the view that information technology is highly probable that the upshot for the claimant would non have been essentially unlike if the comport complained of had not occurred, the defendant must prepare out a summary of its grounds in the acknowledgement of service. If the court agrees with the defendant'south position, then unless a public interest exception applies, the court must refuse to grant relief and may not make an award to the claimant for damages, restitution or recovery of the sum due.

If a defendant or interested political party fails to file an acknowledgement of service ¹⁰, this does non preclude them from participating in the noun hearing if permission is granted.

The Permission Stage

The estimate will normally consider the claimant's application for permission on newspaper and will appraise:

whether there is an arguable instance;
whether the claimant has standing; and
whether the merits has been brought inside the requisite time limit.

This ordinarily takes place within 3 or four months of the claim being lodged. The majority of claims are refused at the permission phase.

If permission is refused, the claimant can request that the decision is reconsidered at an oral hearing unless the court records in its order that the application was totally without merit ¹¹. If a defendant or interested party failed to file an acquittance of service, they will not be able to participate in this oral hearing unless the courtroom permits them to do then.

The Substantive Stage

If permission is granted, directions will commonly be given by the court with regard to the futurity bear of the proceedings including the service of further evidence. The general dominion is that the defendant or any other person served with the claim form must file and serve detailed grounds for contesting or supporting the claim along with whatsoever written evidence relied upon within 35 days of the order granting permission to continue. Whatsoever person may apply for permission to file evidence or make representations at the hearing of the judicial review but whatever such awarding must be made promptly.

The defendant is said to have a very high duty of candour to the court ¹² to set up out the relevant facts and details of the controlling procedure. The court tin can also make an order for standard or specific disclosure if such an gild is necessary to deal fairly and justly with the case, although such orders (especially orders for standard disclosure) are relatively rare.

The claimant and its legal advisors accept a duty to reconsider the merits of the claim later a review of the accused'southward evidence.

Hearings unremarkably take place 6 to 9 months after permission is granted. They can range from a few hours to several days depending on the issues to be decided. Usually, there is no oral witness evidence or cantankerous-examination of witnesses but rather the hearing is taken upwardly with oral submissions from the respective parties' representatives.

Grounds for judicial review

The main grounds for judicial review are:

Illegality

The conclusion-maker must empathize, and comply with, the police that regulates his decision-making ability. A decision-maker may human action illegally where it:

acts ultra vires past exercising powers across those prescribed to information technology;
misdirects itself in police force by taking business relationship of considerations outside those information technology may lawfully consider or by failing to take into consideration relevant factors which information technology is required to consider;
uses a power given to it for an improper purpose;
either abdicates or unlawfully delegates responsibleness for its conclusion to another; or
fetters its discretion e.1000. by rigidly post-obit policy guidelines when exercising a discretionary power instead of maintaining an open mind and addressing itself to the particular facts at hand.

Irrationality or "Wednesbury unreasonableness"

Information technology is unlawful for a public body or decision-maker to make a decision which is and so unreasonable that it is perverse or irrational. A decision is irrational if it is "and so unreasonable that no reasonable authority could ever take come to it" ¹³. Lord Diplock said that this "applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to exist decided could take arrived at information technology" ¹⁴

The threshold for this examination is very loftier, the rationale existence that the function of judicial review is not to assess the claim of a conclusion but to review the procedure by which a conclusion was made. As a upshot, irrationality remains a hard ground on which to bring a successful judicial review.

Procedural impropriety

Procedural impropriety covers a failure to human action within the minimum standards of procedural fairness and natural justice imposed by English law. Procedural unfairness arises if the conclusion-maker has shown bias (or where there was a existent possibility of bias), ^fifteen or where the decision-maker fails to observe relevant statutory procedures in relation to the exercise of its powers such as an obligation to requite reasons for a decision or an obligation to carry out a consultation.

An increasingly common ground for judicial review is where a flawed consultation process has restricted a party'south right to exist heard. An acceptable and lawful consultation process should:

be undertaken when proposals are at an early stage;
provide sufficient information to allow respondents to engage and respond in an informed way;
allow adequate fourth dimension for consultees to respond; and
have into account responses in a fair and open-minded way.

Although in that location is no full general duty on public bodies or decision-makers to give reasons for their actions or decisions, there is an increasing trend for them to do so and a failure to provide reasons for a conclusion may render the decision vulnerable to claiming.

Legitimate Expectation

A legitimate expectation arises where a public authority has represented that it volition acquit itself in a particular way. It may be either:

procedural - for instance where a promise of observe or consultation before a modify of policy has been fabricated; or
substantive - for example where the expectation is that the public say-so will provide a sure benefit or commodity.

It may ascend out of a clear hope, past practice, or (more rarely) previous policy. The public body may be required to human action in the relevant way if a legitimate expectation is plant by the court.

The courts have had little difficulty in recognising that procedural legitimate expectations exercise arise, however noun legitimate expectations will exist upheld simply in exceptional circumstances. The courts are more than wary of requiring a public body to confer a substantive benefit upon an individual considering of the discretion that public government must have to change their practice and policies.

The courts have indicated that the promise must have been articulate, with a pressing and focused bear upon. Adhering to the promise must not fetter or impairment the ability of the public authority to continue its business, and to frustrate it must constitute unfairness amounting to an abuse of power ¹⁶.

Human being Rights

Information technology is arguable that the Human Rights Act 1998, which provides that "information technology is unlawful for a public authority to human activity in a style which is incompatible with a Convention right," ¹⁷ has created an independent ground for judicial review. It may therefore exist possible to challenge a decision on the basis that it infringes human rights, although the claimant must show that he or she is (or would be) a victim of the unlawful act ^xviii.

A claimant under this ground must, therefore, be directly affected by the measure in question ¹⁹. The "victim exam" is a stricter test than simply showing "sufficient interest" in the matter. For example, pressure level groups acting in the public interest would not satisfy the victim test.

The relevant test under this ground is proportionality. In club to act in a proportionate style, a public authorization must remainder the legitimate aims of the state on the i hand with the protection of an individual's human rights on the other.

Judicial Review Procedure

Judicial Review Procedure image

Remedies

If a judicial review claim is successful in that location are a number of types of remedy bachelor:

Prohibiting lodge: the torso nether review is restrained or prevented from doing something
Mandatory social club: the body under review is required to do something
Quashing lodge: the decision is set bated as invalid and returned to the initial decision-making body for afterthought. Information technology is important to note, withal, that the court cannot supplant a decision with its own. Once the decision returns for reconsideration, information technology volition not necessarily outcome in a dissimilar outcome, unless the original effect was held to be unreasonable or unlawful
Annunciation: the court may set out the rights or legal position of the parties (generally only if other remedies are inappropriate)

It is of import to be enlightened that the above remedies are discretionary and fifty-fifty if the claimant is successful in showing that a controlling body has acted unlawfully, the court may not be inclined to grant the remedy sought.

In addition to the to a higher place, damages may likewise be available but simply where in that location is some other established cause of action divide to the footing for judicial review, such as misfeasance in public role, breach of statutory duty, or a individual action in tort. A split up crusade of action in damages likewise arises for breach by a public body of an private'due south rights under the Homo Rights Human action 1998 ²⁰.

Prior to a full hearing, the court may besides grant an interim injunction to protect the position of the parties where there is an imminent risk of damage or loss, and other remedies would not be sufficient.

Costs

Every bit with other types of proceedings, the general dominion is that the loser pays the winner's costs in judicial review. However, the court has a degree of discretion in the costs' honour information technology makes. The court may take into account when deciding how to accolade costs non just the general rule just may also consider, amidst other matters, the conduct of the parties, any failure to follow the designated pre-action steps and the position and funding of the parties. An interested party is generally unable to recover its costs, unless information technology can prove that information technology has brought something to the proceedings that could not have been covered past the main parties, such as show on a crucial outcome (although it may recover its costs of filing an acquittance of service in certain circumstances). An intervener volition too usually accept to pay its own costs and may too take to pay the costs of the main parties to the judicial review in circumstances, where taken as a whole, their evidence and representations had not been of 'meaning assistance' to the court ²¹.

The High Court and the Court of Entreatment have the jurisdiction to make a JRCCO if specific criteria are satisfied ²² . Usually, a JRCCO will specify a limit on the amount that a claimant can exist ordered to pay in respect of the other side'due south costs if the claimant loses. If a JRCCO is granted the club must be coupled with a direction placing a limit on the amount that the claimant, if successful, can recover from the defendant ²³ .

A JRCCO may only be fabricated subsequently permission to apply for judicial review has been granted and can only be practical for past the claimant. The court should be satisfied that the proceedings are in the public interest, and that without the JRCCO the claimant would withdraw the awarding for judicial review or cease to participate in the proceedings and information technology would be reasonable for information technology to do then ²⁴ .

Please note that different rules apply to environmental law claims. There are also specific rules governing whether an intervener can recover its costs or exist ordered to pay costs, although these will only utilise in infrequent circumstances ²⁵ . In practice, this means that an intervener will normally pay its own costs.

Criminal Justice and Courts Human activity 2015 (CJCA 2015) - matters still to be implemented

In 2013 the Government proposed sure reforms to judicial review and these formed sections 84-92 of the CJCA 2015. Sections 84 and 87-92 received Royal Assent on 12 February 2015 and are at present in force. However ss.85-86 of the CJCA 2015, which relate to the financing and costs of cases, are controversial and they are not notwithstanding in force. In summary, these sections provide that the High Court shall non allow the judicial review merits to proceed unless information about the financing of the application has been provided to the court. There is currently no indication of when they will be in forcefulness.

Reform

The Government proposed certain reforms to judicial review in the Criminal Justice and Courts Bill in 2014 in order to endeavour to reduce the number of unmeritorious judicial reviews. Nonetheless, a number of the proposed reforms were seen to be controversial. Following agreement by both Houses the Beak received Royal Assent on 12 Feb 2015 and is now an Act of Parliament.

Amongst others, the Human action introduces the post-obit relevant reforms although they are not in force yet and we accept no indication as to when they will be:

The court must refuse (i.due east. taking away the court'south discretion) to grant permission or relief in judicial review proceedings where it appears to the court to be highly likely that the result would not take been substantially different if the behave complained of had not occurred. Although, a new exam has been introduced in that the court may disregard this requirement if they consider that it is appropriate to do so for reasons of infrequent public interest
The High Courtroom shall not grant leave on an application for judicial review unless information about the financing of the application has been provided to the court in accordance with rules of the court. Such information may include details well-nigh the source, nature and extent of financial resources available to the applicant. Still, merely a person whose financial support exceeds, or is likely to exceed, a level set out in rules of the courtroom has to be identified.

Key Points

Judicial review is not concerned with the claim of decisions, only rather whether decisions have been made lawfully and fairly.
All alternative remedies must outset exist wearied (time permitting).
Proceedings must be commenced promptly and in any upshot no after than three months subsequently the grounds to make the claim first arose. The timescales are tighter in respect of planning decisions and for public procurement (6 weeks and xxx days, respectively).
Claimants must demonstrate that they have a "sufficient interest" in the decision being challenged.
Decisions of public bodies and other bodies or persons performing a public function may exist field of study to judicial review.
Claimants must testify one or more than of the grounds for judicial review.
Remedies are discretionary and even where a claimant successfully demonstrates grounds for judicial review, the courtroom may decline to grant the remedy sought.

Bird & Bird & Judicial Review

We offer clients cognition and expertise in administrative police backed by a formidable dispute resolution practice. Our contempo experience includes:

NHS SBS: acting for NHS SBS in judicial review proceedings brought by UNISON following the decision by ten main care trusts to outsource services to NHS SBS (R(on the application of UNISON) 5 NHS Wiltshire Primary Care Trust [2012] EWHC 624).
Environmental Services Association (ESA): important judicial review ruling concerning recycling collections and whether the Section of Environment Nutrient and Rural Affairs' (Defra) had properly transposed the Waste Framework Directive into United kingdom of great britain and northern ireland domestic regulation (R(on the awarding of United kingdom of great britain and northern ireland Recyclate Ltd) v Secretarial assistant of State for the Environs Food and Rural Affairs [2013] EWHC425).
Government section: acting as an interested party in judicial review proceedings brought by various claimants in relation to the decision of local authorities to levy fees in relation to local land searches.
Leading UK-based supplier of traffic control systems: acting in a dispute with liquidators concerning the nature and extent of their liability to the Traffic Department and entitlement to by and future payments.
Wharf T&T (stock-still line services provider): in judicial review proceedings taken out by PCCW confronting the Part of the Telecommunications Authority (OFTA), in which Wharf intervened as an interested party.
Monarch Airlines: judicial review in relation to a decision past HMRC regarding air passenger duty.
Easyjet : judicial review in relation to a determination by the Civil Aviation Authority (CAA) regarding the airport charges at London Gatwick Drome.

Civil Process Rules (CPR) 54.1
R five Console on Takeovers and Mergers, ex parte Datafin plc [1987] QB 815
Senior Courts Deed, section 31(3)
CPR 54.17
Form N461
Planning-related judicial review claims forms must be issued in the Planning Court
CPR 54.5
CPR 54.5(2)
For more than data nigh JRCCO's please run into the department on 'Costs' in this knowhow cursory
CPR 54.8(2)(a)(ia)
CPR 23.12 and CPR 54.12(seven)
The Secretary of Land for Strange and Commonwealth Affairs v Quark Fishing Limited Neutral Commendation No [2002] EWCA Civ 1409
Associated Provincial Motion picture Houses Ltd v Wednesbury Corp [1948] 1 Thou.B. 223
Council of Ceremonious Service Unions & Others 5 Minister for the Civil Service [1985] A.C. 374
Porter v Magill [2001]
R v N and East Devon Health Dominance, ex p. Coughlan [1999]
Department 6(one) HRA 1998
Section 7(1) HRA 1998
Klass 5 Germany (1978)
Section eight, HRA 1998.
S.87 CJCA 2015
Ss.88-xc CJCA 2015
S.89(2) CJCA 2015
South.88 CJCA 2015
South.87 CJCA 2015

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Source: https://www.twobirds.com/en/disputes-plus/know-how-briefs/articles/2017/judicial-review