Judicial review is the procedure by which decisions of public law bodies and those of other bodies carrying out public law functions may be challenged through the English courts.

With the growth of regulation, these decisions have increased in importance as has the use of the judicial review procedure to effect a challenge. In addition judicial review can sometimes be the only way of making a challenge to legislation emanating from the EU with a realistic prospect of success. Often the decisions in question are of major effect and in some cases business critical.

The grounds for challenge of decisions can very briefly be categorised as follows:-

  • Irrationality – the decision was one that no reasonable authority would have come to (the well-known Wednesbury test);
  • Illegality – the decision was made through the exercise of a power wrongly or the decision was ultra vires ( beyond the powers of the body);
  • Procedural unfairness – the body did not follow the correct procedure such as failure to consult or give reasons;
  • That there was a legitimate expectation the body would act in another way – this is unusual.

There are strict and very short time limits for commencing court proceedings. The usual rule is that proceedings are issued promptly and in any event within three months from the when the grounds of claim arose. There are cases in which it has been held that issuing proceedings at 3 months was too late.

In 2013 the time limit was shortened for planning matters to up to six weeks and for certain procurement matters to 30 days.

Claims can only be pursued with the permission of the Court. The first stage is that the Court considers on the claim documents on their own if there is an arguable case. This acts as a filter for weaker cases. If the Court does not give permission, one can renew the application by seeking a hearing to ask the Court for permission again.

Once permission is granted the case proceeds as normal with the defendant being allowed to serve a defence and the parties serving such further documents and taking part in a substantive hearing as the Court directs.

The Government has made it clear that it is unhappy about the great increase in judicial review applications in recent years. A good part of this increase was due to applications in the immigration field which has been addressed by those matters being dealt with in other ways including by Upper Tier Tribunals.

Following a consultation process, the Government introduced further changes to the judicial review procedure in its Criminal Justice and Courts Bill 2013-14. The Bill has had its second reading in the House of Commons and recently passed through committee stage unchanged in this respect. After a third reading in the House of Commons the Bill will pass to the House of Lords where perhaps it will undergo greater scrutiny.

The Bill contains proposed changes to limit the scope of judicial review which have attracted substantial criticism.

  1. On an application for permission for judicial review the Court must refuse permission if it appears highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.
  2. When dealing with the substantive judicial review application and deciding whether any remedy should be granted the Court should refuse if it appears the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.

It seems the rationale is to try and filter out claims where there was what might be regarded as a minor technical breach. Critics think however that this will encourage decision makers not to act fairly, reasonably or comply with the rule of law. Further it allows the Court to impose its view on what have been if the claim had not arisen.

A further proposed reform is that a party will not be able to make a renewed application for judicial review at a hearing, if on the documents at the preliminary permission stage the Court decides that the application is totally without merit.

The reforms will also increase costs and costs risks to parties who bring claims. Some key measures are set out below.

  1. A large increase in Court fees to commence such claims (already brought into effect);
  2. 2.Changing the current rules so that on an renewed application for permission to bring a claim a defendant can seek its costs of its defence.
  3. Details of financial backers of claims are to be provided, so that the Court has these when  deciding whether costs orders should be made.
  4. Parties joining in others claims will not have their costs paid by other parties and risk costs orders being made against them if they cause others to incur greater costs. This could discourage a number of smaller parties grouping together to challenge a decision.

As a result of the consultation process the Government did not include in the Bill proposed changes that would limit the judicial review procedure to those who could not show sufficient legal standing (i.e. that they were affected) as opposed to being part of a campaign, for example to raise profile.

It is perhaps disappointing that the opportunity was not taken to clarify uncertainty in the law on when the time for bringing a claim begins to run.

A good deal will depend on how the reforms if made are implemented in the Court rules. However, from the above it will be seen that if the changes are brought about, pursuing judicial review claims will become harder, more costly and expose the parties to greater costs risk. The corollary for clients and advisers is that they continue to keep ahead of proposed decisions to be taken by public bodies or those exercising a public function and devote greater input into consultations, as this is likely to be the best way to avoid adverse outcomes or have account taken of their views.

By Jeremy Lederman