It is a common misconception - fuelled perhaps by headlineworthy cases reported in the media - that judicial review is a remedy solely for aggrieved individuals in immigration and planning cases. Although there may have been some truth to this in the past, judicial review today is commonly used by businesses to challenge many different aspects of public law. The increased regulation of industry and commerce, combined with a growing PFI and public procurement market, has led to an increased number of challenges both to legislation itself and also the decisions of national and local government, regulatory authorities and other bodies exercising a public function. As such, it is a vitally important area of the law that all businesses should be aware of.

What is judicial review?

Judicial review is the main way that the courts supervise bodies exercising public functions to ensure that they act lawfully and fairly. It has three main aims:

  • Supervise administrative action
  • Restrain abuse
  • Secure compliance with the law

The availability of judicial review is determined by the nature of the act or decision being challenged, rather than the identity of the organisation in question. The remedy would therefore not be available in connection with a decision made by an employer about an employee - even if the employer was a public body - but would potentially be available against a private company which has been contracted to carry out a public function. This is a much more complicated area than it used to be and is constantly evolving.

One of the most important elements of judicial review is that it is concerned with processes rather than outcomes. Accordingly, the court will not consider/ review whether the ‘correct’ decision was reached, but whether the decision-maker applied the correct process in reaching its decision. In doing so, the court will examine whether there was any illegality, irrationality or procedural impropriety/ unfairness on the part of the decisionmaker, and also whether a person has a legitimate expectation that the decisionmaker will act in a certain way.

Who can bring a claim for judicial review?

In order to bring a claim, a party must have ‘sufficient interest’ in the outcome of the proceedings. The courts have avoided defining exactly what this means over the years, but it is usually interpreted quite liberally as the courts have become increasingly unwilling to dismiss a meritorious application for lack of standing. Accordingly, it is not necessary to be the direct victim of a decision and this can be seen from the fact that pressure and public interest groups are often permitted to bring judicial review claims if their members have an interest in the outcome.

Timing

A claim for judicial review must be made promptly and, in most cases, not later than three months from the date when grounds for the application first arose. This time limit is even shorter in planning cases and certain public procurement cases where it is six weeks and thirty days respectively.

It is therefore vital that an aggrieved party acts quickly; not only can the three month time limit not be extended by the parties, but it is perfectly possible that a court could strike out a claim on the basis that a party did not act promptly even though a claim was brought within three months. However, at the same time there is an expectation that judicial review will be the remedy of last resort and parties who fail to exhaust other methods of resolving their dispute risk costs penalties unless the court is satisfied that good reasons exist for not doing so.

Procedure

Although the procedure for a judicial review claim is similar to that for ‘normal’ court claims, there are a number of important differences, almost all of which help to streamline the process and reduce costs. Perhaps the most significant difference is the existence of the ‘permission stage’, during which a judge will review the papers - after the defendant has filed an acknowledgment of service in response to the claim form - to determine whether the claim has sufficient prospects of success to be allowed to proceed further. This helps to weed out unmeritorious claims at an early stage, thereby saving time and costs all round.

Remedies

Judicial review is a discretionary remedy and therefore even if a public body has acted unlawfully, there is no absolute right to relief. However, if the court is satisfied that some form of relief is appropriate then the principal remedies are as follows:

  • quashing order - where the original decision is set aside
  • mandatory order - which requires the public body to do something
  • prohibitory order - which stops the public body from doing something
  • a declaration - a statement of the law
  • a stay or injunction - which requires something to be done (or not); and
  • damages

It is, however, extremely rare for damages to be awarded in judicial review actions; compensation is generally sought in the usual way in separate court proceedings. It is also important to be aware that only very occasionally will the court change a decision that has been reasonably arrived at by the relevant public authority. Much more often, the court will require the public authority to reconsider its decision because its procedure was at fault and this may or may not result in the same outcome at the end of the day.

Notwithstanding this, there are still several sound reasons for bringing judicial review proceedings, including:

  • The considerable commercial impact of decisions by public bodies (whether they be regulatory determinations or rules, legislative restrictions or procurement decisions) will often make it worthwhile bringing an application, even if this may seem somewhat speculative at the time. Particularly given the discretionary and continually evolving nature of judicial review
  • The speed and efficiency of judicial review proceedings compared with other court proceedings
  • The early examination of the merits during the permission stage, which provides an indication of whether a judicial review application is worth pursuing
  • It may be an important step in a more substantial tactical battle. For example, success at the permission stage of a judicial review may encourage negotiations with the relevant public body and increase the likelihood of an overall settlement
  • Lower legal costs - including significantly lower court issue fees - particularly when compared to the amount of money at stake, due to the relatively expedited process and the absence of automatic disclosure and oral examination of witnesses.