Reviewed by PLC Public Sector in October 2012.
A quick guide to judicial review, including who can apply for a review, what decisions can be reviewed and the remedies which may be granted.
This is one of a series of quick guides, see Quick guides.
Judicial review is the procedure by which the courts examine the decisions of public bodies to ensure that they act lawfully and fairly. On the application of a party with sufficient interest in the case, the court conducts a review of the process by which a public body has reached a decision to assess whether it was validly made. The court’s authority to do this derives from statute, but the principles of judicial review are based on case law which is continually evolving.
Judicial review is a remedy of last resort. Although the number of judicial review claims has increased in recent years, it can be difficult to bring a successful claim and a court may refuse permission to bring a claim if an alternative remedy has not been exhausted. A claimant should therefore explore all possible alternatives before applying for judicial review.
The courts can challenge the decisions of government ministers and departments, industry regulators, local authorities and other public bodies. The boundary between public bodies and the private sector can be unclear and the public/private law divide is constantly blurring. In deciding whether a particular body is a public body for the purposes of judicial review, the court considers the functions that it performs and whether those functions have public law consequences (see Practice note, An introduction to judicial review: Which decisions can be judicially reviewed? (www.practicallaw.com/1-376-4820)).
It is not clear what exactly amounts to a sufficient interest, but the courts have identified a number of factors which are relevant, such as, the importance of maintaining the rule of law, the nature of the breach of duty and the extent of the claimant's interest in the issues. It would appear from recent cases that pressure groups or individuals with no private interest, who raise an issue of public importance that would not otherwise be raised, are also considered to have sufficient standing (see Practice note, An introduction to judicial review: Locus standi and public interest (www.practicallaw.com/1-376-4820)).
The grounds for judicial review are constantly evolving but those which are currently available can be categorised under four heads.
Illegality arises when a decision-maker:
For further information, see Practice note, An introduction to judicial review: Illegality (www.practicallaw.com/1-376-4820).
A decision may be challenged as irrational, if:
This ground arises, if the decision-maker has not properly observed:
A flawed consultation process is now a common ground for judicial review claims (see Practice note, An introduction to judicial review: Procedural fairness (www.practicallaw.com/1-376-4820)).
A public body may, by its own statements or conduct, be required to act in a certain way, where there is a legitimate expectation as to the way in which it will act. A legitimate expectation only arises in exceptional cases and there can be no expectation that the public body will act unfairly or beyond its powers (see Practice notes, An introduction to judicial review: Legitimate expectation: procedural and substantive (www.practicallaw.com/1-376-4820)) and Legitimate expectations (www.practicallaw.com/6-504-2351).
The aim of the Pre-Action Protocol for Judicial Review (www.practicallaw.com/0-422-1540) (Protocol) is to avoid unnecessary litigation. It may only be dispensed with if the circumstances of the claim are urgent or the public body does not have the legal power to change the decision being challenged.
The Protocol requires the claimant to send a letter before claim to the defendant (see Annex A, Pre-action protocol for judicial review). The purpose of this letter is to give the defendant the opportunity to consider the claim and put the matter right rather than have its decision or action judicially reviewed. For an example of a letter before claim, see Standard document, Letter before claim: judicial review (www.practicallaw.com/5-503-0768). The defendant should respond within any reasonable time limit specified and sanctions may be imposed if no response is made (see Practice note, A practical guide to the judicial review procedure: Pre-action considerations: Pre-action Protocol for judicial review (www.practicallaw.com/9-376-4010)).
If the claimant is satisfied with the defendant's response, that is the end of the matter.
If the claimant wishes to proceed with the claim, they must file a claim form promptly and, in any event, within three months of the date on which the grounds for the claim first arose. Filing within three months does not necessarily amount to prompt filing and, where there is undue delay, the court may refuse permission for the claim to proceed or may refuse relief. However, where a claim involves the enforcement of an EU directive, a claimant no longer has to overcome the hurdle of promptness. For more information on the decisions in Case C-406/08 - Uniplex (UK) Limited v NHS Business Services Authority and R (Buglife) v Natural England  EWHC 746 (Admin), see Legal updates, ECJ judgment on limitation periods for bringing procurement challenges (www.practicallaw.com/7-501-3490) and Buglife case clarifies no promptness test for environmental judicial review (www.practicallaw.com/2-506-2181) (affirmed in R (Berky) v Newport City Council and Others  EWCA Civ 378, see Legal update, Issues associated with issuing judicial review proceedings "promptly" (Court of Appeal) (www.practicallaw.com/9-518-8115)). The defendant must file an acknowledgment of service within specified time limits, if it intends to contest the claim. For an example of a summary grounds of resistance, see Standard document, Judicial review: defendant's summary grounds of resistance (www.practicallaw.com/8-505-4055).
For details of the procedure to be followed, see Practice note, A practical guide to the judicial review procedure (www.practicallaw.com/9-376-4010).
If the court is satisfied on the basis of the paper application that there are reasonable grounds for a judicial review, it grants permission for the claim to proceed to a substantive hearing (see Practice note, A practical guide to the judicial review procedure: The substantive hearing (www.practicallaw.com/9-376-4010)).
Permission will be granted if the court considers there is an arguable ground for judicial review. If permission to proceed is granted, the defendant has no right of appeal. Success at this stage may therefore lead to negotiations with the defendant and the possibility of a settlement.
Typically, a claimant would seek a quashing order, together with a mandatory order directing the public body to take the decision again in accordance with the court's judgment (see Practice note, An introduction to judicial review: Quashing, prohibiting and mandatory orders (www.practicallaw.com/1-376-4820)).
A claimant should also consider applying for a protective costs order which would require the defendant to meet the costs of both parties or some other specified amount of costs (see Practice note, A practical guide to the judicial review procedure: Protective costs orders (www.practicallaw.com/9-376-4010)).
The following resources are available.