One can challenge decisions for failures based on those types of reasons. Judicial review (JR) is the procedure used. The court has a "supervisory" role - making sure the decision maker acts lawfully. (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 his 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.)
The usual result from the JR procedure is that the decision is "quashed" or nullified. In turn this usually means that it has to be taken again. 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)), 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. 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 judicial review/public law.
Permission
Because people have faith that they can always turn to the courts when they don't like a decision, the Administrative Court (which is a branch of the High Court handling, among other things, JR cases) has a "permission" sytem. The first step in JR is to apply for permission to proceed, on the basis 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 it is best to avoid the problem by taking advice as soon as possible after the decision you may wish to challenge is made.
One of the most important requirements is that the application for permission for JR has to be make "promptly or in any event within three months" after the decision in question is taken. Working out how time ran used to cause serious difficulties (and to a lesser extent still does). 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 is 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.
It is galling to have a JR rejected on the basis of failure to challenge a much earlier stage in the process. Fortunately the law has been clarified by the House of Lords such that it is clear that time runs from the date of grant of permission itself. This was in a case of ours called Burkett (see case transcripts on this website). We got fed up with arguments about time limits and attempts to have our clients' claims thrown out for not having acted quickly enough! The House of Lords has however still left it unclear whether one has a full three months, or whether there is an overriding "promptness" requirement. In most cases there will probably be full three months, but 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 Wells case illustrates.
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, 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. Except in the most urgent cases, we will 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 so-called "summary grounds for contesting the claim" (= defences) 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 comment on those defences.
The court then sends them for a judge for a decision on paper. If permission is refused, you can "renew" (= appeal) the decision 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.
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 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 he did so before the relevant decision was made, or continued spending it even though he was on notice of the challenge. The claimant has this opportunity to counter the other side's evidence.
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 quickly determine agreeability - the substantive case is heard at the same time as the issue as to whether it is arguable, i.e. whether permission should be granted. This has the advantage of getting the matter dealt with quickly and in practice is cheaper than the more drawn-out, two stage procedure. However, there is a greater costs risk.
The culmination of the second stage, the final hearing, will however usually take place a few weeks or 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 exchange "skeleton arguments" - summaries of the respective legal cases. The judge should pre-read these and essential parts of the documentary material. 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.
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 always given on paper. There are circumstances where witnesses may have to appear in person but, although we have come close, we have never actually encountered these.
More information about costs is in the funding section of this website.
The judge may deliver judgment there and then, or 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. Even with oral judgments, a transcript is usually available within a week or two afterwards. After judgment is given, there is always argument about who pays the costs, and whether permission should be given to appeal the decision.
The usual order is that the loser is ordered to pay the winner's costs. However, in a recent case of ours, Davey, the Court of Appeal has given guidance to the effect that in cases brought essentially in the public interest a reduced or no order for costs may be appropriate. It is also sometimes possible to obtain protection against adverse costs orders in public interest cases in advance. See further, the funding section of this website. Sometimes the amount of costs that have to be paid is assessed on the spot ("summary assessment"), or it may go to detailed argumment before a specialist costs judge.
Appeal
Judges usually refuse permission to appeal, and one has to apply to the Court of Appeal direct. For details of appeals to the Court of Appeal and beyond, see the appeals section.
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 ECJ for a "preliminary ruling". Lower courts may refer; courts of "last instance" (which usually means the House of Lords, though it can mean the Court of Appeal) must refer. High Court judges usually reach their own decisions and the reference is made, if at all, further up. 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 decide it is more efficient to refer to the ECJ at the High Court stage.
