Judicial Review 2017-09-20T20:01:03+00:00

Judicial Review

What is a Judicial Review?

 There are limits on power in the UK, which goes back to the time of Magna Carter.  Where a public body makes a decision members of the public (and corporate entities) may ask a Court to review those decisions, within certain restrictions.  Understanding all aspects of judicial review work is necessary in order to successfully ask a Court to review a decision.  Trying to undertake a judicial review yourself can be a costly exercise with no ultimate outcome.

A Court may review a decision or the refusal/failure to make a decision.  The decision (or refusal/failure) must be made by a public body.  For instance, if the Home Office makes a ruling that someone is not allowed to enter the UK from the United States, they would potentially have a right to review.

However, a Judicial Review in the High Court may only be taken when every last appeal avenue has been exhausted.  So, if the Home Office rejects someone’s application to enter the UK, they can go through the immigration Tribunal system.  Only after all appeals in that process are complete can a Judicial Review be possible.  That can be a very long process.

A decision taken by a local council about the allocation of funds in the care system, for example, is one that would attract Judicial Review rights.  There is usually an appeal’s process within the council, but once a final decision by the council is made, anyone impacted by the ruling may ask the High Court to consider the decision and make a determination.

Judicial Reviews of a decision taken by a public body may only be made to the High Court and may only be started if the High Court grants permission for the application to be heard.  A Judicial Review can only be brought under three headings:

  1. Illegality
  2. Irrationality (often referred to as Wednesbury reasonableness).
  3. Procedural impropriety.

It is the Court’s role to investigate how a decision was made and taken (or refusal/failure to make a decision) and to identify whether there are an error in law or fact and/or to determine if the decision taken is lawful and reasonable.

That can be an expensive process.

“The discretionary power of the Home Secretary to give directions … imposing restrictions on freedom of expression is subject to judicial review, a remedy invented by the judges to restrain the excess or abuse of power. On an application for judicial review, the courts must not substitute their own views for the informed views of the Home Secretary.”

Lord Templeman

R v Secretary of State for the Home Department, ex parte Brind [1991] AC 696, at 751.

What Decision Are Reviewable?

As noted, the decisions must be a decision taken by a public body.  This on its own can be challenging.  A recent case involved a judicial review against an independent reviewer of the Financial Conduct Authority’s review into the historic sale of interest rate hedging products.  The argument was that the independent reviewer (appointed and paid by the Bank) was operating on behalf of and utilising the functions of the FCA, thus making it a reviewable decision.  The High Court rejected this: R. (on the application of Holmcroft Properties Ltd) v KPMG LLP [2016] EWHC 323 (Admin).

Courts will consider various cases, even if the decision making body is not strictly a public body.  If in doubt, check with a solicitor.

Who Can Bring A Judicial Review?

 Only a person or body that is sufficiently impacted by or connected to a decision can bring judicial review proceedings.  So, for example, a decision taken by Leeds City Council to spend £1 million on a gold plated bust of the Council Leader could not ordinarily be challenged by a council tax payer in Glasgow, but potentially could be challenged by a Council Tax payer in Leeds, as there is no apparent connection to Glasgow, but is a connection to a Leeds Council tax payer.

Who can bring a decision is usually quite apparent: R. (on the application of Rahman) v Local Government Election Court [2016] EWHC 1280 (Admin) Lord Justice Lloyd Jones at paragraph 10.  However, sometimes it is not as clear-cut, and every case should be considered very carefully by experienced lawyers before work is undertaken on a threat of judicial review.  It is very disappointing to spend tens of thousands in getting the case ready to be later told by the court that the claimant has no locus standi (no standing) with which to bring the claim.

 Outcome of a Judicial Review

 It is essential that you appreciate and understand what a Court can do in a review.  The principal issue is, the court cannot substitute its own decision for the decision it is reviewing.

A Court has full discretion on a remedy it can provide, but they must come within six principal headings. Three of these are specific to judicial review proceedings:

  1. An order quashing the decision in question (quashing order).
  2. An order restraining the body underreview from acting beyond its powers (prohibiting order).
  3. An order requiring the body underreview to carry out its legal duties (mandatory order).

(CPR 54.2 and section 31(1), Supreme Court Act 1981).

The three other general remedies available are:

  1. A declaration.
  2. A stay or injunction.
  3. Damages
    (CPR 54.3 and sections 31(2) and (4), Supreme Court Act 1981).

For the most part, Judicial Review proceedings tend to be taken so as to seek an order rather than damages, but damages are available in some cases nonetheless.

Time To Bring A Claim

 The rule in regards to the time limit to bring an application or permission to judicially review something is contained in the Civil Procedure Rules 54.

Judicial Review is very particular and only allows a case to be brought if it is brought promptly following a decision or failure to make a decision (CPR 54.5(1)), but no later than three months after the decision is made.  Some areas have different time periods that apply.

This timeframe can be very difficult in the modern age, because a decision can be put onto a website and the whole world is deemed to be informed of that decision at that time.  Not seeing something on a public website may not assist you in court.  One case we were involved with had to be stopped before it began because a Council had put a new rule about back-dating care home fees in certain circumstances (thus locking a large number of care homes out of the back-dated payments) on its website.  Despite that there was no logical way that the care homes could have known it was there, it was the view of the solicitors and barristers that putting it on the website started the clock, and we were instructed just after the sixth month, making a Judicial Review unlikely.

The Courts can be very stringent in regards to this rule.  There have been cases decided wherein the decision was taken but not made publicly available, but the court found the three-month period for starting the case to run from the date of the decision and not the date at which it was made public (again involving a council).

It is therefore essential that if a decision is made and you wish to challenge it, you urgently speak to a solicitor that understands judicial review.  Trying to write to the body and seek agreement or seek to have them change their decision will only result in time being lost. If you are not prompt in issuing your application – even if you issue it before the three-month date – a Court may reject your application.  It is far better to speak to experienced solicitors like Muldoon Britton first and identify the best course of action.

Process

 The first step for a judicial review is to send a letter of claim pursuant to the pre-action protocol for judicial review.  It is imperative that this is done with speed.

Whilst waiting for a response the case should be evidenced.  This usually involved witness statement evidence being produced and all documents and information relating to a decision (or refusal/failure to make a decision) being identified and collated.  The application for permission to bring the judicial review needs to be perfected during this period. This is in most cases going to involved a significant amount of work, with the attendant costs.

Experienced barristers must be used from day one to ensure that the right evidence is produced and that it is produced in such a way as to best assist the Court.

When considering a judicial review, you must appreciate the time scales involved. An application for permission must be issued promptly.  That is an expensive process with the added down-side that the other side – the public body – may simply respond to your letter of claim by withdrawing their decision or providing a decision (or amending one already made).  At that stage your original judicial review application must stop.  This usually means a very large amount of work and costs will have been expended and the letter from the otherside removes the decision/failure to make a decision, with no way of recovering the costs incurred.  But if those substantial costs are not incurred, it is often the case that an application for permission could not be issued.  You must consider this issue very carefully.

Instruct Muldoon Britton

Muldoon Britton is a litigation only firm.  Kalvin Chapman in the Manchester office has worked for a Council, for the Department for Health and, in private practice, had the Child Support Agency as a client.  Muldoon Britton is made up of litigators, whose only job is to fight for the rights of clients.

As a litigation only firm we have no conflicts with any public body (including local councils) in the same way that we have no conflicts with any banks.  We are free to fight on behalf of our clients.

We have the knowledge and experience.  We understand central & local government decision processes.  We know and understand the litigation process.  It is essential that you do not waste any time, because every day counts on a potential judicial review case. Call our Manchester office on 0161 826 6922.

Examples

(on the application of Ingenious Media Holdings Plc) v Revenue and Customs Commissioners [2016] UKSC 54

Ingenious was the subject of litigation involving tax avoidance or tax mitigation.  In June 2012, after an off-the-record interview with a senior HMRC officer, a newspaper published two articles about film schemes and tax avoidance.  Ingenious was named, and it was agreed that HMRC had passed their name to the newspaper.  Ingenious claimed a straightforward claim for breach of the common law duty of confidentiality and issued an application for permission to review the decision of HMRC to pass their name to the newspaper.  The High Court rejected their application, but this was reversed on appeal at the Supreme Court.

R. (on the application of Nash) v Barnet LBC [2013] EWCA Civ 1004

The claimant sought permission to pursue a judicial review in respect of a respondent local authority’s decisions to outsource a number of its functions and services was out of time.  The LA awarded contracts and the claimant sought to challenge this.  This was rejected by the High Court as being out of time, and the Court of Appeal determined that the reviewable decision was the decision not to consult on the out-sourcing, meaning that the application for permission had been brought substantially out of time.

R. (on the application of Bevan & Clarke LLP) v Neath Port Talbot CBC [2012] EWHC 236 (Admin)

The Local Authority awarded a 5.7% funding increase for the financial year 2011/12.  The care home operators sought to review that decision, claiming it did not amount to the actual cost of funding (as charged by the Claimant).  The application was refused.  Such decisions are amenable to judicial review, but what sums the care home operator charged was a private matter between them and their residents.  The fee increase by the Local Authority was allowed even when considering that the Local Authority had, in setting the fee, considered its own resources and the impact of awarding a higher fee increase.