The note has been amended to reflect the amendments that have been made to CPR 54 to reduce the time limits for filing a claim form for judicial review in planning and procurement cases by the Civil Procedure (Amendment No. 4) Rules 2013.
Judicial review: a quick guide
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.
What is judicial review and why is it necessary?
Judicial review is used to challenge public law decisions
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.
Which decisions can be judicially reviewed?
Decisions of public bodies and other bodies exercising public law functions
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)).
Who can make a judicial review claim?
A party must have sufficient interest in the matter to which the claim relates
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)).
On what grounds can a claim be made?
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:
- Misdirects itself in law.
- Exercises a power wrongly.
- Acts ultra vires (www.practicallaw.com/8-200-5902).
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:
- It "is so unreasonable that no reasonable authority could ever have come to it" (Wednesbury unreasonableness (www.practicallaw.com/6-200-9152)). The courts are very reluctant to find that a decision was Wednesbury unreasonable, particularly where the decision-maker is an expert.
- The decision-maker took into account irrelevant matters or failed to consider relevant matters.
This ground arises, if the decision-maker has not properly observed:
- The relevant statutory procedures, such as a failure to consult or to give reasons.
- The principles of natural justice in the decision-making process (for example, if the decision-maker has shown bias or has failed to hear an affected party).
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).
What is the procedure for making a judicial review claim?
The claimant should follow the Pre-Action Protocol for judicial review
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.
Public body does not have the legal power to change the decision being challenged.
Shorter time limits in CPR 54.5(5) or (6) apply. These are that a claim relating to a planning decision must be filed within six weeks and a claim challenging a procurement decision must be filed within 30 days (see Legal update, The Civil Procedure (Amendment No 4) Rules 2013 made implementing judicial review reforms (www.practicallaw.com/4-531-6889)).
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)). For an example of a response to a letter before claim, see Standard document, Response to letter before claim: judicial review (www.practicallaw.com/6-523-0960).
If the claimant is satisfied with the defendant's response, that is the end of the matter. Note that if the case settles at this stage, the court will have no jurisdiction over costs and the claimant should seek to deal with that costs that may have been incurred in drafting a pre-action protocol letter in any settlement agreement. For more information, see Practice note, Pre-action protocols: an overview: Recovering pre-action costs (www.practicallaw.com/5-204-9196).
The parties must observe strict time limits
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 or the shorter time limits specified by CPR 54.5(5) and (6). 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).
A claim may only be brought with the permission of the court
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.
What remedies can a claimant apply for?
Remedies that are specific to judicial review proceedings
- A quashing order to set aside the decision.
- A mandatory order requiring the public body to carry out its legal duties.
- A prohibiting order restraining the public body from acting beyond its powers.
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)).
Other general remedies that are available
- A declaration setting out the rights or legal position of the parties. This is generally only available if other remedies are inappropriate or the subject matter affects a large number of people.
- A stay or injunction. An injunction is often granted as an interim remedy to prevent a public body from acting on a decision. When a matter is urgent, the claimant may seek an expedited permission hearing (see Practice note, A practical guide to the judicial review procedure: Interim relief and expedition (www.practicallaw.com/9-376-4010)).
- Damages are only available if another established cause of action is available for which damages may be sought. The claim for judicial review may include a claim for damages to avoid the need to bring parallel proceedings. For more information, see Practice note, Damages in judicial review (www.practicallaw.com/6-523-6740).
The following resources are available.
- An introduction to judicial review (www.practicallaw.com/1-376-4820).
- A practical guide to the judicial review procedure (www.practicallaw.com/9-376-4010).
- Disclosure in judicial review (www.practicallaw.com/5-508-3988).
- Damages in judicial review (www.practicallaw.com/6-523-6740).
- Urgent judicial review applications (www.practicallaw.com/1-524-2201).
- Judicial review and public procurement (www.practicallaw.com/7-520-7619).
- Decision-making by public bodies: Avoiding legal challenge (www.practicallaw.com/6-383-9998).
- Local government: statutory powers and duties and their proper exercise (www.practicallaw.com/2-384-0606).
- High Court fees: a quick guide (www.practicallaw.com/3-205-8040).
- Service of the claim form and other documents: an overview (www.practicallaw.com/3-382-5813).
- Issuing a claim for judicial review (www.practicallaw.com/1-385-1704).
- Defending a claim for judicial review (www.practicallaw.com/4-385-1712).
- Procedure for applying for judicial review: flowchart (www.practicallaw.com/1-385-2628).
- Letter before claim: judicial review (www.practicallaw.com/5-503-0768).
- Response to letter before claim: judicial review (www.practicallaw.com/6-523-0960).
- Judicial review: defendant's summary grounds of resistance (www.practicallaw.com/8-505-4055).
- Disclosure in judicial review: witness statement in support of an application for specific disclosure (www.practicallaw.com/4-505-5617).
- Disclosure in judicial review: draft order for specific disclosure (www.practicallaw.com/1-505-5652).
- Court of Appeal ruling in unitary dispute (www.practicallaw.com/6-385-5525).
- Limiting access to disabled children's services is unlawful (www.practicallaw.com/7-385-3535).
- Stansted judicial review fails (www.practicallaw.com/8-385-3568).
- Camden Academy judicial review fails (www.practicallaw.com/6-384-9619).
- Ruling on judicial review of OFT decision to close a Competition Act investigation (www.practicallaw.com/2-384-6260).
- No general duty to give reasons for administrative decisions (www.practicallaw.com/0-384-3738).
- Ensuring decisions are compliant with the European Convention on Human Rights (www.practicallaw.com/9-384-4502).
- Friends of the Earth's judicial review of Government's fuel poverty strategy (www.practicallaw.com/1-384-1550).
- Protective costs orders: principles and procedure (www.practicallaw.com/6-383-8748).
- Has the Court of Appeal extended the scope of protective costs orders? (www.practicallaw.com/4-382-4243)