Judicial review process

The concept of judicial review

Judicial review (JR) is the process of challenging the lawfulness of decisions of public authorities, usually local or central government.  The court has a "supervisory" role - making sure the decision maker acts lawfully.  It is important to understand that a JR is not a re-run on the merits of the decision but a challenge to the lawfulness of the decision that was made.

Note - there is a very similar procedure known as "statutory appeal" which applies to certain types of decision, particularly planning decisions made by the Secretary of State or Planning Inspectorate on the Secretary of State's behalf.  The crucial practical point to remember in those cases is that you have a fixed six week time limit in which to issue court proceedings.  See below.

If a JR claim is successful the usual result is that the decision is "quashed" or nullified.  In turn this usually means that the decision has to be taken again.  In planning cases, this means that the application will be reconsidered having rectified any defects found eg. with EIA or other required information.  This can result in exactly the same decision being taken - so victories in JR can be pyrrhic.

If that were always the case, there would be no point in the procedure (or in us being in business).  In practice, however, the effect of a decision being quashed and a new decision being taken, often following a proper procedure (such as having environmental impact assessment (EIA) or factors properly taken into account), means that at least a better, and often a substantively different, decision results.  In other words you achieve something.

We find that where there is a legal problem with a decision, there is often a substantive one too.  It may well mean that in practice the decision cannot lawfully be taken again with the same results.  The instinct of residents who feel they have been treated unfairly is often right.  Overall, the adage "no smoke without fire" applies in the field of JR/public law.

Time limits

JR requires permission from the Court.  See below.  One of the most important requirements is that the application for permission for JR has to be made within the time limits set by the Court rules.  From 1 July 2013 all planning cases must be started within 6 weeks from the date of the decision.  For non-planning cases the time limit may continue to be that a claim is prompt and in any event within 3 months.  The time limits are strictly applied.  People are still advised to take legal advice urgently whenever a decision that concerns them is made - or even may be made in the future.

A particular problem in planning cases was that there could be different possible dates from which to count time.  For example, you could have an "EIA screening decision" on whether to have EIA or not (which the average person, even one actively concerned about the planning application in question, may be unaware of, or unaware of its significance), a resolution by the planning committee to grant planning permission, and then, often many months later, the permission itself.

Overall while there may be 6 weeks in planning cases and up to three months in non-planning law cases to take action, you cannot be dilatory or look as though you are acquiescing in a decision.  It is worth considering action as soon as you possibly can.

In statutory appeals cases the time is fixed at six weeks. It is usually very clear from when that time runs. Even if outside that timeframe, however, all may not be lost, as the European Court of Justice's decision in our Wellscase illustrates.

Pre-action protocol

The first step in the JR procedure is to write a formal letter to the proposed defendant setting out your proposed claim and what you are seeking.  This is known as a pre-action protocol (or PAP) letter.  Normally a response is expected within 14 days. However, in cases challenging a grant of planning permission, the 6 week time limit to issue a claim does not leave much time for pre-action correspondence, although you must try to complete it if possible.

Permission

If the response to the PAP is unsatisfactory you may lodge a JR claim in the Administrative Court (which is a branch of the High Court handling, among other things, JR cases).  The first stage is to apply for "permission" to apply for JR.  The test for obtaining permission to proceed is that you have an arguable case.  The court will weed out cases where it cannot see any arguable error of law.  Another test at the permission stage that can be important, but is usually not a problem, is that you have "standing" - in effect, a genuine interest in bringing the case, rather than being a mere busybody.

In statutory appeal cases, permission is not necessary.  The disadvantage of this is that you become immediately exposed to substantive costs of the other side if you lose.  In practice problems arise when clients approach us at the 11th hour (within a fixed six week time limit) and we have to file proceedings without having time to consider the merits of the claim, either ourselves or with counsel.  Usually the Treasury Solicitor (who represents the Secretary of State, the normal defendant in these cases) will allow some grace to consider the position after filing but before committing to more extensive costs.  But in all cases, JR or statutory appeal, it is best to avoid the problem by taking advice as soon as possible after the decision you may wish to challenge is made.

The process of applying for permission

In principle, this is simple - you complete a short claim form, setting out your facts, your grounds (why you consider the decision was unlawful) and certain other details; you provide documents explaining the background to the case and relevant legal provisions; and you lodge these papers with the Administrative Court with a modest fee.  In practice, however, this permission stage can involve a lot of work, considering documents, chronology, and analysing what legal grounds you have (or don't have) to apply for JR.  We will usually recommend involving counsel to advise and draft the statement of facts and grounds.

Once issued, you serve the defendant and any interested party (for example, holder of the planning permission you seek to challenge) with the papers.  They can (and almost always do) submit "summary grounds of defence" to explain why it is unarguable and permission should not be granted.  In practice, though there is no provision for this in the rules of procedure, you the claimant then have a short window of opportunity to reply to those defences.

The court then sends the papers to a judge for a decision on paper. If permission is refused, you can "renew" the decision to be heard in open court. The other parties may or may not attend. Our experience is that permission is often refused on paper but granted upon renewal in open court. Sometimes the judge will order that the matter be referred to open court anyway.

The substantive stage

If permission is granted, the claim proper can proceed. How complex this turns out to be depends on the circumstances. In principle one awaits evidence from the defendant, and interested party. In our experience interested parties tend to put in large amounts of evidence in an effort to show how much care was (they say) in fact given to making the decision in question and how much money they would lose if the decision were quashed. These factors should not sway a court if the decision has, in fact, been made unlawfully - but, inevitably, they often do.

Therefore it is necessary to be prepared to undermine this sort of evidence. For example, to show that however carefully the decision was made, it was still unlawful. This can often be for failure to comply with EIA procedural requirements. Or that the interested party may have spent a lot of money - but did so before the relevant decision was made, or continued spending it even though on notice of the challenge. 

Sometimes - particularly in urgent cases, or in straightforward cases that should not take long to argue, or in cases that are so complex that it is difficult for a judge to quickly determine agreeability - a judge may order that both the permission stage and substantive stage be heard at the same time ("a rolled-up hearing").  This is more likely to happen where one party has made an application for the case to be expedited (ie. heard sooner).  A rolled-up hearing has the advantage of getting the matter dealt with quickly and in practice is cheaper than the more drawn-out, two stage procedure.  However, it can have costs disadvantages.

The culmination of the second stage, the final hearing, will however usually take place a few months after receipt of evidence from the other parties and the claimant filing any further evidence. A few weeks before the date fixed, counsel for both sides will submit "skeleton arguments" - summaries of the respective legal cases. The judge should pre-read these and essential parts of the papers. If this is done, the hearing itself can proceed quite rapidly. JRs seldom take more than three days and many in our experience are over within one day.

Costs

Although going to court is certainly expensive, the relative speediness of the judicial review process means that costs are not the "telephone numbers" one reads about in the papers for libel cases and so forth where the case goes on for a long time, usually due to the need for witnesses appearing in person. In JR, evidence is almost always given on paper. 

Rules about costs are complicated.  However, they are becoming more favourable for claimants in environmental cases, they are generally less of a practical and procedural obstacle.  However, the general rule remains that the loser pays the winner's costs.

Sometimes the amount of costs that have to be paid is assessed on the spot ("summary assessment"), or it may be to detailed argument before a specialist costs judge.

More information about costs is in the funding section of this website.

Judgment

The judge may deliver judgment there and then, ex tempore, or orally shortly afterwards, or it may be "handed-down" in writing later. Handed-down judgments are more satisfactory as they are usually better thought through, and one also does not have to expend time and costs for the time it takes to attend delivery of an oral judgment. With oral judgments, a transcript can be obtained, but may have to be paid for.  After judgment is given, there is usually argument about who pays the costs, and whether permission should be given to appeal the decision.

Appeal

Judges usually refuse permission to appeal, and one has to apply to the Court of Appeal directly for permission. For details of appeals to the Court of Appeal and beyond, see the appeals section.

References to the European Court of Justice

European law is to the effect that where the answer to a point is not clear in the European jurisprudence, a domestic court may refer it to the CJEU for a "preliminary ruling". Lower courts may refer; courts of "last instance" (which usually means the Supreme Court of the United Kingdom, though it can mean the Court of Appeal) must refer. High Court judges usually reach their own decisions and leave it to a higher appeal to make a reference, if at all. Sometimes, see for example Wells, the judge realises that the point is not clear, that it will anyway be appealed leading to a reference eventually, and so decides it is more efficient to refer to the CJEU at the High Court stage.

A reference to the CJEU can take several years to be completed and then the original dispute often may still need to be heard in the UK courts. However, more often than not the answer from the CJEU is helpful to the claimant and worthwhile in terms of its influence on domestic environmental decision-making.