This was the very issue considered recently by the High Court in Aireborough Neighbourhood Development Forum v Leeds City Council (Rev 2)  EWHC 45 (Admin).
The case concerned an unincorporated association constitutionally established with an objective of promoting development in the local area including, through its designation as a neighbourhood forum, the production of a neighbourhood plan. Do unincorporated associations have legal capacity to bring judicial reviews and statutory challenges in public law, and if they do then what may be the benefits of incorporating the association?
Upon review of the case law on the issue of unincorporated associations as litigants, Mrs Justice Lieven concluded that they do have legal capacity to bring both judicial reviews and statutory challenges. Specifically, she identified a distinction on the issue of capacity between public law claims and private law claims. She noted:
“In private law the individual has to be able to show that they have a legal right which has been infringed, therefore it is fundamental that they have legal capacity to sue. In contrast the critical question in judicial review or statutory challenge is whether the claimant is a person aggrieved or has standing to challenge, which is not a test of legal capacity but rather one of sufficient interest in the decision not to be a mere busybody”.
She also noted that the Interpretation Act 1978 defines a ‘person’ as a body of persons corporate or unincorporated and that there is no contrary definition within the legislation for statutory challenges (such as Planning and Compulsory Purchase Act 2004 which was the subject of the present case).
Should you incorporate your local interest group before filing?
Whether to use an unincorporated or incorporated association to bring a judicial review or statutory challenge is a question that will need careful consideration and discussion with your legal advisors. An unincorporated association may raise some of the following issues:
- Who has control and/or authorisation of the association to bring the claim on its behalf? Who is instructing the legal team on the matter?
- Who are the members of the association? What is the association’s purpose/objectives and does it have sufficient interest to complain against the public decision in question? Is there a written constitution?
- How is the claim to be funded both as to its own costs and the risk of adverse cost orders? Is there a separate bank account for the association? Is there crowd funding? Do you need to apply for a cost capping order to limit adverse cost risk liability?
- Expect the respondent authority to raise issues like security of costs orders or undertakings (ie. payment of funds into court to ensure cost orders can be met) and/or non-party cost orders (ie. where litigation funders or wealthy members of the association are ordered to pay any adverse costs orders).
- Do you have time to incorporate the association? Statutory challenges have tight timescales for filing a claim (ie. 6 weeks) and therefore the process of incorporation may not be practicably achievable.
In the present case, the Aireborough Neighbourhood Development Forum though an unincorporated association had a written constitution, a bank account, a steering group (ie. authorised persons to act on the association’s behalf) and an identifiable membership. These should be considered all key steps to address the above identified issues where an unincorporated association intends to bring a judicial review or statutory challenge.
Lessons: An unincorporated association does have legal capacity to bring a public law claim by judicial review or statutory challenge. However, it is important for a smooth claim that the association is properly constituted with clear litigation funding arrangements. It is important that you discuss and take advice from your legal advisors at the earliest stage possible to avoid complications especially where timescales for the claim are short.