What is Judicial Review?

What is Judicial Review?

Judicial review (“JR”) is a legal process which enables an individual to challenge a breach of public law. Public law governs the relationship between an individual and the state, and it is there to ensure that public bodies act in ways that are lawful, fair, rational and compatible with the rights of individuals who are affected by their actions.                                                                                                                                       Here are five things to know about JR

1. Judicial Review is powerful tool. But it is also a last resort.

When an individual believes that a public authority, or a body carrying out a public function (‘a Body’) has acted unlawfully or incompatibly with their human rights, there are multiple ways in which that person can seek to challenge their decision making/actions. These include:

1. Complaints procedures/Ombudsmen schemes
2. Appeal processes (e.g. to an independent tribunal)
3. Asking a public body to review its decision
4. JR

The courts consider JR to be a ‘remedy of last resort’, and therefore any individual who wishes to bring a JR will be expected to have shown the court that they have exhausted all the other remedies available to them, such as the options listed above at points 1 – 3, prior to resorting to JR proceedings.

Once an individual has exhausted the other remedies and JR is deemed to be an appropriate next step, data would suggest that JR is a (relatively) successful tool for claimants. Findings from the Public Law Project show that around three-quarters of JR cases that are withdrawn following a settlement before the case gets to court will settle in the claimant’s favour. Furthermore, once cases do proceed to a final hearing, over half of them will settle before the hearing, and three-quarters of those cases will settle in the claimant’s favour.

Despite this, it is important to stress that claimants may find that alternative remedies to JR are cheaper and more effective in resolving their matter. They may indeed run aground in a JR application if they proceed without first attempting to resolve the matter in an alternative way.

2. Not all decisions are challengeable and not all bodies can be challenged.

Per the Civil Procedure Rules, part 54.1(2)(a):

[…] a ‘claim for judicial review’ means a claim to review the lawfulness of – 

1. an enactment; or 

1. a decision, action or failure to act in relation to the exercise of a public function. 

When bringing a JR therefore, a claimant will be required to identify i) the source of the Body’s authority to act and ii) the nature of its authority, iii) and the capacity of the Body they wish to challenge.

1. The source

Bodies are given authority to act via a range of sources, these can include primary legislation (i.e. an act of Parliament) secondary legislation (i.e. regulations or directions), common law (decisions developed over time by courts), European Union law (as appropriate post-Brexit) and Human Rights law.

Claimants should be aware that a distinction can be made by a Body subject to whether the source is a ‘law’ or ‘guidance/policy’. If the source in question is guidance/policy for example, a Body may lawfully state that it has derogated from this guidance for a good reason, particularly as guidance/policy does not have the same status as a law. A Body will still need to show good reason for departing from the guidance/policy, however. In contrast, laws dictate how a Body must act, and a failure to follow this may be easier to evidence as a straightforward error of law.

1. The nature

Furthermore, claimants should be aware of the nature of the authority of the Body, as a distinction can also be made between a ‘duty’ and a ‘power’. The applicable law may place a Body under a duty to act in a particular way, i.e. that the Body must act in that way. A power on the other hand, also known as a discretion, will mean that a Body can consider its discretion, but is not obliged to use its discretion.

• The capacity

Not all decisions taken by a Body are governed by public law and will therefore be subject to a JR challenge. For example, a Body may act as a private individual (e.g. as an employer) and a dispute with another private individual would be subject to private law (employment law) rather than public law.

The meaning of ‘exercise of a public function’, per the CPR, could include decisions/actions taken in the course of policing, running a prison, hospitals, education for example.

It should also be noted that there can be instances where private bodies exercise public functions, such as where a private company runs a prison. This may still be amenable to judicial review.

3. Not everyone can bring a JR

To bring a JR, you must have ‘standing’, which relates to who can actually bring a claim.

‘Standing’ is defined in Section 31(3) of the Senior Courts Act 1981 as an individual who has ‘sufficient interest’ in the matter. Sufficient interest has been taken to mean that an individual is directly affected by the actions of the Body in question, or, for the purposes of the Human Rights Act 1998, is a direct/indirect ‘victim’. Notably, pressure and public interest groups (such as Liberty and the Good Law Project) have also demonstrated standing and been able to bring JRs, therefore standing is not purely confined to single individuals.

4. JRs are expensive

Funding a JR is expensive, and proceedings can cost anything from £20 – 50,000 for a straightforward case going to final hearing. For more complex cases, the costs will potentially be much more.

Claimants have a few options available to them in terms of funding their case. This can include:

• Paying privately

An individual can enter into an agreement with their legal representatives regarding whether they are to pay under a traditional hourly payment or under a fixed fee agreement.

• Legal aid

It is possible to obtain legal aid in JR cases. Per schedule 1 of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’), a claimant will have to show that their JR application has the potential to benefit the individual, a member of their family or the environment.

A claimant’s eligibility will also be subject to strict means criteria i.e. that the claimant does not have a monthly gross income that exceeds £2,657, and has a monthly disposable income of less than £316 or not exceeding £733 and disposable capital not exceeding £8000. If a claimant is in receipt of a state benefit such as Universal Credit, this is deemed as a ‘passporting benefit’ and the claimant will not have to carry out an income assessment, but will have to carry out a capital assessment.

• Conditional Fee Agreement (‘CFA’)

More commonly known as ‘no win, no fee agreements’, the claimant enters into an agreement with the lawyer that the lawyer will act at the risk of not getting paid. The client will agree to pay the lawyer their full fee (and potentially a success fee) if they win their case, or will not be liable for costs if they lose. Claimants will be liable for disbursement costs, however.

CFAs have different variations and also include CFA lites and a discounted CFAs.

• Crowdfunding

Raising money though crowdfunding campaigns has grown in popularity in recent years. This method can be incredibly effective, especially where public campaigns harness the interest of the public and/or the media. However, not all cases will be suitable for funding.

5. There are strict (and short) time limits

A JR must be brought ‘promptly and in any event not later than 3 months after the grounds to make the claim first arose…’ (CPR 54). Parties cannot, between themselves, extend this time limit. For matters relating to planning and procurement, time limits are even shorter (no later than six months after the grounds to make the claim first arose).

Where a matter relates to a continuing failure or unlawful action, the court may permit a challenge to be brought after the standard three-month period. However, the claimant must bring the application to the attention of the court in a timely manner after the policy/decision is applied to them.

Our lawyers at Saunders law are experts in actions against the police and public authorities and we are passionate about assisting members of the public to protect their rights. For advice about initiating Judicial Review proceedings, or if you have been affected by any of the issues mentioned above, please contact us on 020 7632 4300 to discuss your concerns.