What is a judicial review?
A judicial review is part of the administrative law in England and Wales and is a type of court proceeding but it is usually held within an administrative court. In these hearings a judge will conduct a review of a decision or action or a failure to act by a public body that provides a service. Judicial reviews are only available when there are no other methods of resolution or challenge to the decision.
When attending a judicial review, the judge will review the facts and determine whether the law has been applied correctly and whether the right procedures have been implemented and followed. Success at a judicial review hearing will depend on the claimant proving;
The public body was under a legal duty to take action or reach a decision in a particular way and was or is unlawfully refusing to do so
A decision or action made by a public body is beyond the powers it has been given in the law
Judicial reviews concern the supervision of administrative decision making and it can be an effective and fast method of persuading a public body to reconsider their decision or place an obligation on them to take action that should be taken. The decision of the court must be followed.
The decision reached by a judicial review can be used by other people.
A court can only act in a supervisory capacity and any remedy to the situation is only discretionary.
Even if the claimant can prove the unlawful behaviour, the review may not reach the conclusion that the claimant hoped for. Courts have limited powers to award any financial compensation. In addition, if a case is not urgent the timescales to reach court are lengthy, taking a number of months or in some instances years before a hearing is held.
The judicial review itself can be extremely complicated and the procedures defined by the court are not meant to be used by people who are not solicitors or counsel and the process is very expensive. It is for these reasons that anyone considering pursuing a judicial review should seek legal advice from a professional who has specialist judicial review knowledge. Free legal advice is available to those who are claiming income related benefits or on a low income.
Which Decisions Can be Challenged by a Judicial Review
Any decision that has been made by a public body in a public law capacity can be challenged under a judicial review. Public bodies include;
Government departments, local authorities, health authorities, chief constables, prison governors, certain tribunals, a magistrate, coroner, county court or board of school governors
If the public body is not carrying out a public duty, is under a supplier contract or it acts in a negligent manner, its actions are not governed by public law. It is becoming increasingly common for a public function to be contracted to a private company and if a private company carries out a public function, any acts or omissions are administered through public law.
Alternatives to a judicial review
There are a number of alternatives which can prove as effective as a judicial review and if there are other avenues of challenging a decision or delay then it is expected and indeed, encouraged that you use them.
Alternatives could include;
- Right of appeal against a decision in dispute, but there are usually strict timescales for appealing so you must ensure that you submit your appeal in good time. Additionally, not all decisions carry the right of appeal so before raising an appeal, check that you are able to do so.
- Appeals are often the best method of dealing with a dispute because tribunals can look at the issue in detail. If the appeal is won, the tribunal can set aside the original decision.
- An internal appeal or a dispute procedure
- Submitting your complaint to the relevant ombudsman
All of the alternatives to a judicial review are free and do not involve the risk of accruing significant costs or having to pay the other side’s costs if you lose.
As with any form of legal proceedings, there are timescales attached to a judicial review if you feel that it is the right course of action. Judicial reviews must be brought before the court as quickly as possible and in all cases within three months of the initial decision or action which is being challenged. These strict timescales mean that applications should be submitted as soon as possible once it has been determined that a judicial review is the most suitable.
Late applications will not be considered and the following excuses are not accepted;
- Failure to comply with the law even if you have been advised incorrectly
- A lengthy delay in seeking initial advice
- Delay by the public body if you cause the delay
In urgent cases, judicial reviews can be expedited.
Grounds for a judicial review
A public body can generally act in ways that the law allows them to do. Laws are defined by Acts of Parliament and implemented through rules, orders and regulations. A public body may also provide guidelines on how they can use their legal powers.
Although guidance and policies do not necessarily have to be followed, as a matter of good practice, they should be followed, provided that there is good reason not to follow the law.
Additionally, public bodies must apply laws which regulate their decision making abilities. If they fail to comply with the law, decisions, actions or failure to act can be deemed as being unlawful.
Public bodies should never act in such a way that it is unfair and abuses their power. If there are certain processes and procedures which have been defined by law so they can reach a decision, these must be followed.
If you have received a decision by a public body the hearing must be fair and you should be provided with an opportunity to argue your case effectively. Public bodies should be impartial or take sides and consultation must be undertaken in order to reach a decision.
They are also accountable for keeping their promises unless there are genuine and good enough reasons not to do so.
Irrationality and Proportionality
Courts can intervene to quash a decision where they believe it is unreasonable. However this is very difficult to prove.
Administrative Court Procedures
When a claimant makes a claim for a judicial review, there are specific procedures that courts have to follow;
- A judicial review claim can proceed as far as possible based on agreed facts
- Both parties are required to cooperate fully with the court
- Courts can where they see fit, bring other issues into the dispute which may not have been raised
- Courts can also demonstrate a degree of deference to the person making the decision
Once proceedings have been heard, courts can grant particular remedies if the claimant is successful. Court remedies for judicial reviews include;
- Quashing – Where the decision is overturned
- Prohibition – Prevents a public body from taking an unlawful decision
- Injunction – Temporary order requiring a public body to carry out or not carry out a particular action until a final decision has been made
- Mandatory order – Ensures that a public body takes action that the law states it must do
- Declaration – Courts can outline what the law is or what each party is rightfully allowed to do
- Damages – Where the public body has breached human rights, the court can award damages
- Discretion – All remedies are discretionary, even if the court finds that the public body has acted incorrectly
If permission is given to bring a claim for a judicial review, the case will be sent for a final hearing. There is a fee that you will have to pay at this stage which is currently £215 within 7 days of being awarded the decision to proceed. Within 35 days of the decision, the defendant must respond outlining the basis on which they are building their defence including any evidence that they would like to rely on.
Cases are then scheduled for a hearing before a judge in an Administrative Court. Full hearings are very formal involving lawyers making arguments which will cover the decision, any policy or practice which have been challenged. It is unlikely that you will be asked to provide evidence and you may not even need to attend. Once the proceedings are drawing to a close, the judge will give their final judgement and the decision of the court which brings the judicial review to its conclusion.
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