In my last blog post, we looked at what judicial review is and how an action is brought, as well as who can bring it. We also considered what decisions are subject to judicial review. In this blog post, we will be looking at what the procedure is for judicial review is and the stages it follows. However, we will start by quickly going over what judicial review is.
What is Judicial Review?
Judicial review is the process used to challenge decisions, actions and failures to act by public bodies. These bodies are those that carry out public functions, such as government departments and local authorities. An individual or a group can bring an action in judicial review, but they must be able to prove that they have “standing”. Essentially, this means that they must be affected in some way by the decision or are an organisation that is closely associated with the area of law the decision concerns.
There are a few different grounds on which judicial review can be brought. Firstly, a decision can be challenged if it is irrational, although this is generally quite hard to prove in practice, so an action will usually be brought for a different reason. Another reason is proportionality, which requires the public body to strike a balance between the needs of the state and the rights of the individual.
Additionally, if a public body acts illegally, this decision can be challenged. This also includes cases where they act beyond the powers allowed to them. Finally, a claim can be brought for procedural unfairness. Public bodies must be impartial and act fairly. They must also follow any procedural requirements and consult with affected parties as necessary.
During a judicial review, judges will examine the decision or action taken and decide whether the correct procedures were followed. They are not concerned with what the outcome is and are simply checking that the law has been followed. A successful claim under judicial review means that the decision is quashed and must be taken again, following the correct procedure. This does not necessarily mean that the decision will be reversed, just that it will be taken again.
Pre-Action Protocol
The first stage of judicial review is the pre-action protocol. At this point, the claimant needs to write a formal letter to the defendant, which must say why they are seeking judicial review and on what grounds. This should include the legal arguments they intend to use in court. The defendant usually then has 14 days to respond to this letter, after which it will proceed without their response.
Many claims actually stop at this point, as the defendant admits to the wrongdoing and offers a remedy themselves, which the claimant may or may not accept. Alternatively, the defendant may respond with a strong defence, making the claimant realise some point they have missed and drop the claim.
Applying to the High Court
If the claimant is not satisfied with the defendant’s answer, however, they may choose to start formal proceedings with the High Court. They will need to fill in a form for this, stating the facts of and any background to the case, as well as the grounds on which they plan to challenge the decision, of the ones stated above in the “What is Judicial Review” section.
Once a case has been issued, the claimant will receive a copy of the papers, after which they can state their summary grounds of defence. This, as well as all the other paperwork, will then be sent to the judge for a decision on whether the case will be heard. For this, the claimant must have an arguable case, meaning that they must have standing and there should be some sign of an error of law.
If the case does not pass this test, the claimant can still take the decision to open court, where the judge may reverse the decision on the papers and allow the case to be heard. The defendant may or may not attend open court to give their defence.
Going to Court
If the case received permission, the parties, including any concerned third parties, will usually have a few months to put together and submit any evidence to support their side of the case. This can include responding to arguments made, which may require further evidence. After this, the judge will examine the evidence before the hearing as well as the basic arguments each side intends to make. This should ensure the hearing itself is relatively quick.
Once the hearing is complete, the judge may give their decision in person on the day or soon after, but it is more likely to be received sometime later in writing. There may then be some debate about the division of costs and whether leave to appeal would be granted.
Appeal
Appeals are uncommon in judicial review cases. The losing party usually has to apply to the Court of Appeal, as judges rarely grant leave to appeal. However, the costs assigned to each party can be reviewed on appeal, as legal action cannot be prohibitively expensive.
Wrapping Up
I hope that this helps you to understand the process of judicial review, as this is a vital part of the justice system. In my next blog post, we will be looking at some of the advantages of common law, so come back in two weeks for that!
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