JUDICIAL REVIEW CLAIMS IN THE ADMINISTRATIVE COURT

A claim for judicial review is a two-stage process. The claimant must first seek permission to apply for judicial review. This application for permission will generally be dealt with first on the papers by a judge of the Queen’s Bench Division (Administrative Court), after the defendant has had an opportunity to serve its Acknowledgement of Service and Summary Grounds for Contesting the Claim. If permission on the papers is refused, the claimant may then renew his application at an oral hearing. If permission is granted as such a hearing, the matter then proceeds to a substantive hearing, following service of further evidence by the parties and Detailed Grounds for Contesting the Claim.

For a detailed discussion of judicial review, see the leading textbooks such as De Smith, Woolf and Jowell, Judicial Review of Administrative Action; Wade and Forsyth, Administrative Law; Lewis, Judicial Remedies in Public Law; Fordham, Judicial Review Handbook.

When to use Part 54. A claimant must use Pt 54 if he is seeking a mandatory order, a prohibiting order or a quashing order, or an injunction under the Senior Courts Act 1981 s.30 to restrain a person from acting in any office in which he is not entitled to act: Senior Courts Act 1981 ss.30, 31(1), Pt 54.2. This is so whether or not the claimant is seeking any additional other remedy: Pt 54.3(1). Mandatory, prohibitory and quashing orders are the new names for orders of mandamus, prohibition and certiorari.

A claimant may use Pt 54 where he is seeking an injunction or a declaration and must do so if he is also seeking a mandatory, prohibiting or quashing order: Pt 54.3(1). The court may rant a declaration or an injunction in a claim for judicial review if, having regard to the nature of the matters in respect of which relief may be granted by mandatory, prohibitory and quashing orders and the nature of the persons and bodies against whom relief may be granted by such orders and all the circumstances of the case it would be just and convenient for the declaration to be made or the injunction granted: Senior Courts Act 1981 s.31(2). A claimant may also use Pt 54 if he is seeking damages, restitution or the recovery of a sum due, but only if he is in addition seeking one or more of the other remedies mentioned above: Pt 54.3(2).

Part 54.1(2)(a) defines a claim for judicial review as a claim to review the lawfulness of an enactment or of a decision, action or failure to act in relation to the exercise of a public function. If a claim contains some elements which fall within the definition of judicial review and some elements which fall outside it, the court will often leave it to the claimant the choice of whether to use Pt 54; O’Reilly v Mackman [1983] 2 A.C. 237; Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 A.C. 624; Mercury Communications Ltd v Director General of Telecommunications [1996] 1 W.L.R. 48 [HL]; Clark v University of Lincolnshire [2000] 3 All E.R. 752, CA. However, it is important to bear in mind that the time limits for making an application for judicial review are short and that the procedure contains other important safeguards for defendants, such as the requirement for permission (see below). Although the court now has power to transfer proceedings into and out of Pt 54 (Pt 54.20), a claimant who issues Pt 7 or Pt 8 proceedings in an attempt to get round the Pt 54 time limits or other safeguards is liable to have his claim struck out for abuse of the process of the court; see Clark v University of Lincolnshire (referred to above); Jones v Powys Local Health Board (2009) 12 C.C.L. Rep. 68; cf. R v Chief Constable of the British Transport Police Ex p. Farmer [1998] C.O.D. 484.

Time limits. An application for judicial review must be made promptly and in any event not later than three months after the grounds to make the claim first arose: Pt 54.5(1). The time limit cannot be extended by agreement between the parties: Pt 54.5(2). Moreover, this is subject to any enactment which provides a shorter time limit for specific types of claim: Pt 54.5(3). When the claim seeks to quash a judgment, order or conviction, the date when the grounds to make the claim first arose is the date of the judgment, order or conviction: Practice Direction 54A para. 4.

If a claim is not made within time, the claimant can ask the court to extend time. The onus is on the claimant to show good cause for the delay. It is not on the defendant to show the delay has caused him prejudice. R v Dairy Produce Quota Tribunal Ex p. Caswell [1990] 2 A.C. 738, HL. If the claimant does not bring the proceedings promptly and in any event not later than three months after the grounds to make the claim first arose but permission to proceed with the judicial review is granted, the defendant can at the substantive hearing contend that relief should be refused on the ground that its grant would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration: Senior Courts ct 1981 s.31(6); R v Criminal Injuries Compensation Board Ex p. A [1999] 2 A.C. 330. It is important for the purposes of time limits to identify the correct decision being challenged; see R. (Burkett) v Hammersmith and Fulham LBC [2002] 1 W.L.R. 1593. This decision also left open the question whether provision in Pt 54.4(1) that the claim form must be filed “promptly” is sufficiently certain to comply with the right of a fair hearing within a reasonable time in art. 6(1) of the European Convention on Human Rights. However, the Court of Appeal has since confirmed that the requirement for promptness is compatible with the requirements of art. 6(1): see Hardy v Pembrokeshire CC [2006] Env. L.R. 28; Finn-Kelcey v Milton Keynes BC [2009] Env. L.R. 4.

Pre-Action Protocol. This protocol, which can be found on the website of the Ministry of Justice (as www.justice.gov.uk) , sets out a code of good practice and contains the steps which parties should generally follow before making a claim for judicial review. All claimants will need to satisfy themselves whether they should follow the protocol, depending upon the circumstances of their case. The protocol will not be applicable in urgent cases nor where the defendant has no legal power to change the decision under challenge. Where the use of the protocol is appropriate, the court will normally expect all parties to have complied with it and will take into account compliance or non-compliance when giving directions for case management of proceedings or when making orders for costs. However, even in emergency cases, it is good practice to fax to the defendant the draft Claim Form which the claimant intends to issue. A claimant is also normally required to notify a defendant when an interim mandatory order is being sought.

The protocol does not affect the time limit specified by Pt 54.5(1), and compliance with the protocol alone is unlikely of itself to be sufficient to persuade a court to allow a late claim, although it should be a factor taken into account.

The protocol states that before making a claim, the claimant should send a letter to the defendant. The purpose of this letter is to identify the issues in dispute and establish whether litigation can be avoided. Claimants should normally use the suggested standard format for the letter outlined at Annex A of the protocol. The letter should contain the date and details of the decision, act or omission being challenged and a clear summary of the facts on which the claim is based. It should also contain the details of any relevant information that the claimant is seeking and an explanation of why this is considered relevant. The letter should normally contain details of any interested parties (as defined in Pt 54.1(2)) known to the claimant. They should be sent a copy of the letter before claim for information.

Defendants should normally respond within 14 days using the standard format at Annex B of the protocol. Failure to do so will be taken into account by the court and sanctions may be imposed unless there are good reasons. Where it is not possible to reply within the proposed time limit the defendant should send an interim reply and propose a reasonable extension. Where an extension is sought, reasons should be given and, where required, additional information requested. If the claim is being conceded in part or not being conceded at all, the reply should say so in clear and unambiguous terms, and:

  • where appropriate, contain a new decision, clearly identifying which aspects of the claim are being conceded and which are not, or, give a clear timescale within which the new decision will be issued;
  • provide a fuller explanation for the decision, if considered appropriate to do so;
  • address any points of dispute, or explain why they cannot be addressed;
  • enclose any relevant documentation requested by the claimant, or explain why the documents are not being enclosed; and
  • where appropriate, confirm whether or not the defendant will oppose any application for an interim remedy.

The response should be sent to all interested parties identified by the claimant and contain details of any other parties whom the defendant considers also have an interest.

Avoiding proceedings. The pre-action protocol states that the parties should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation. Both claimant and defendant may be required by the court to provide evidence that alternative means of resolving the dispute were considered and the courts will have regard to this as well as the other parts of the protocol when determining costs. As well as following the pre-action protocol, parties should bear in mind the guidance of the Court of Appeal in R. (Cowl) v Plymouth City Council – Practice Note [2002] 1 W.L.R. 803, which emphasise the need in a public law context to consider alternative ways to resolve the dispute before resorting to litigation. This guidance was recently endorsed and reiterated by the Court of Appeal in R. (on the application of C) v Nottingham City Council [2011] 1 F.C.R. 127.

Standing and the “victim” test. A court may not grant permission to apply for judicial review unless the claimant has sufficient interest in the matter to which the claim relates: Senior Courts Act 1981 s.31(3). Whether a party has a sufficient interest is a mixed question of fact and law: see R v Inland Revenue Commissioners Ex p. National Federation of Self Employed and Small Businesses Ltd [1982] A.C. 617, in which the House of Lords also found that it was generally undesirable for the courts to consider standing as a preliminary issue. If permission is granted, standing can be considered again at the substantive stage.

When the application for judicial review includes a claim that a public authority has acted or proposes to act in a way which is made unlawful under s.6 of the Human Rights Act 1998, the claimant must also establish that he is a “victim” of the unlawful act for the purposes of art. 34 of the European Convention on Human Rights: see ss.7(1), (7) of the Human Rights Act 1998.

Permission. A claimant needs the court’s permission to proceed with a judicial review. Permission is needed even if the proceedings are commenced as a private law claim and subsequently transferred to the Administrative Court: Senior Courts Act 1981 s.31(3), Pt 54.4. The question of permission will generally be considered without a hearing in the first instance: Practice Direction 54A, para. 8.4. The court will serve its decision on the parties: Pt 54.11.

An applicant requires permission to proceed with a judicial review application in the Upper Tribunal: Tribunals, Courts and Enforcement Act 2007 s.16(2). The application for permission is usually considered on the papers first, and the Upper Tribunal is required to send to the applicant, each respondent and any other person who provided an acknowledgement of service (and may send to any other person who provided an acknowledgement of service) (and may send to any other person who may have an interest in the proceedings) written notice of its decision and the reasons for any refusal, or any limitations or conditions on the grant of permission: Upper Tribunal Rules r.30(1).

If permission on the papers is refused, or granted on limited grounds or subject to conditions, the applicant may apply for the decision to be reconsidered at a hearing. Such an application must be made in writing and must be received by the Upper Tribunal within 14 days after the date on which the Upper Tribunal sent written notice of its permission decision to the applicant: Upper Tribunal Rules r.30(4), (5). The parties entitled to attend the permission hearing must be given at least two working days’ notice of the hearing: Upper Tribunal Rules r.36(2)(a).

If permission is refused, or is granted subject to conditions, the claimant may request that the decision be reconsidered at a hearing: Pt 54.12. Such a request must be filed within seven days after service of the court’s reasoned decision refusing to give (unconditional) permission: Pt 54.12(4). A defendant or interested party who has not acknowledged service of the claim form in accordance with Pt 54.8 will not be allowed to take part in the permission hearing unless the court allows him to do so: Pt 54.9(1)(a).

If permission is refused at the oral hearing, the claimant may apply to the Court of Appeal for permission to appeal: Pt 52.15(1). The claimant must use the appellant’s notice N161: Pt 52 Practice Direction para. 5.1. The application must be made within seven days of the Administrative Court decision: Pt 52.15(2). On the application, the Court of appeal may, instead of giving permission to appeal, give permission to apply for judicial review: Pt 52.15(3). Where the Court of Appeal gives permission to apply for judicial review, the substantive hearing will be in the Administrative Court unless the Court of Appeal orders otherwise: Pt 52.15(4). If the Court of Appeal refuses permission to appeal, there is no further appeal to the Supreme Court: Access to Justice Act 1999 s.54(4), Pt 52 Practice Direction para. 4.8.

Where the court grants permission to apply for judicial review, it may also give directions: Pt 54.10. The court will serve the order granting permission, and any directions, on the claimant, the defendant and on any other person who filed an acknowledgement of service: Pt 54.11.

Neither the defendant nor any interested party may apply to set aside the grant of permission: Pt 54.13.

Permission to proceed with a claim for judicial review must be obtained from a High Court judge (usually one of the Queen’s Bench Division who has been assigned to hear matters listed in the Administrative Court Office List) (CPR, r. 54.4; Senior Courts Act 1981, s. 31(3)). To grant permission the court has to be satisfied that:

  • there is an arguable case for review;
  • the claimant has a ‘sufficient interest’; and
  • there has not been ‘undue delay’.

Traditionally the test for the grant of permission has been that a claimant must demonstrate to the court upon ‘a quick perusal of the papers’ that there is an arguable case for granting relief (R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617).

Permission should be granted if on the material available the court considers, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the claimant. The Court of Appeal has held that the test to be applied in deciding whether to grant permission is whether the judge is satisfied that there is a case fit for further investigation at a full with-notice hearing of a substantive claim for judicial review (R v Secretary of State for the Home Department, ex parte Begum [1990] COD 107). However some judges seem to apply more stringent criteria and require a claimant to demonstrate something approaching a reasonable prospect of success or a strong prima facie case.

Permission will be refused where an application is frivolous, vexatious or hopeless; or a claim is made by ‘busybodies with misguided or trivial complaints of administrative error’ (R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617); or a claim is misconceived, unarguable or groundless.

Response. The defendant and any other person served with the claim form who wishes to contest the claim or to support it on additional grounds must serve detailed grounds and any written evidence within 35 days after service of the order giving permission: Pt 54.14. There is no prescribed form for the detailed grounds. Where the party filing detailed grounds intends to rely on documents not already filed, he must file a paginated bundle of those documents when he files the detailed grounds: Practice Direction 54A para. 10.1.

Disclosure. Disclosure is not required unless the court orders otherwise: Practice Direction 54A para. 12. Disclosure will be ordered to the extent that the justice of the case requires it: O’Reilly v Mackman [1983] 2 A.C. 237.

Relief. Where the court makes a quashing order, it may remit the matter to the decision maker and direct it to reconsider the matter and reach a decision in accordance with the judgment of the court or, insofar as any enactment permits, substitute its own decision for the decision to which the claim relates: Pt 54.19(2), Senior Courts Act 1981 s.31.

Judicial review claims in the Upper Tribunal

The Upper Tribunal (Administrative Appeals Chamber) has jurisdiction to deal with classes of claim specified by direction where certain other conditions are met: Tribunals, Courts and Enforcement Act 2007 ss.14, 18. Such a direction was issued by the Lord Chief Justice with effect from November 4, 2008, specifying two classes of judicial review claim to be dealt with in the Upper Tribunal, namely applications relating to decisions of the First-tier Tribunal in certain Criminal injuries Compensation Scheme appeals: and applications relating to certain decisions of the First-tier Tribunal where there is no right of appeal to the Upper Tribunal (unless, in either type of case, the application seeks a declaration of incompatibility under s.4 of the Human Rights Act 1998): see Lord Chief Justice’s Direction Classes of Cases Specified under s.18(6) of the Tribunals, Courts and Enforcement Act 2007.

Applications for judicial review or for permission to apply for judicial review specified under s.18(6) brought in the High Court which satisfy other specified conditions must be transferred to the Upper Tribunal and certain other such applications may be so transferred if it appears to the High Court just and convenient to do so: Senior Courts Act 1981 s.31A.

Judicial review claims in the Upper Tribunal follow a broadly equivalent procedure to those brought in the High Court, and are governed by The Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) (“the Upper Tribunal Rules”). The person bringing the claim is referred to as the applicant: Upper Tribunal Rules, r.2. There is a two stage process, in which the applicant must first seek permission to apply for judicial review. The respondent has the opportunity to respond by serving an Acknowledgment of Service and summary of grounds for opposing the application. Permission is usually considered by a judge of the Upper Tribunal on the papers first, and if permission is refused the applicant may renew his application at an oral hearing. If permission is granted, the matter proceeds to a substantive hearing, following the service of any further evidence by the parties and detailed grounds for contesting the claim.

Time limits. The principal time limit for judicial review claims in the Upper Tribunal is equivalent to that in the High Court, that is to say applications must be made promptly and (unless a shorter time limit is specified on any other enactment) must be received by the Tribunal no later than three months after the date of the decision, action or omission to which the application relates: Upper Tribunal Rules, r.28(2). However, an application for permission to bring judicial review proceedings challenging a decision of the First-tier Tribunal may be made later than that tie if it is made within one month after the date on which the First-tier Tribunal sent written reasons for the decision or notification that an application for the decision to be set aside (itself made in time) has been unsuccessful: Upper Tribunal Rules, r.28(3). The Upper Tribunal may extend time for bringing a judicial review claim: Upper Tribunal Rules r.5(3)(a). There is an equivalent provision to s.31(6) of the Senior Courts Act 1981 giving the Upper Tribunal power to refuse permission or to refuse any relief where it considers that there has been undue delay and that granting the relief would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration: Tribunals, Courts and Enforcement Act 2007 s.16(4), (5). See further above in relation to High Court judicial review claims.

Standing. As with the High Court, the Upper Tribunal may not grant permission to apply for judicial review unless the applicant has sufficient interest in the matter to which the application relates: Tribunals, Courts and Enforcement Act 2007 s.16(3). See further above in relation to High Court judicial review claims.

Relief. The Upper Tribunal has power when determining judicial review cases to grant mandatory, prohibiting and quashing orders, declarations and injunctions. Where it grants such relief, this has the same effect as, and is enforceable as if it were, the corresponding relief granted by the High Court on an application for judicial review: Tribunals, Courts and Enforcement Act 2007 s.15(1), (3). In deciding whether to make such orders, the Upper Tribunal must apply the principles that the High Court would apply in deciding whether to grant such relief in a judicial review application: Tribunals, Courts and Enforcement Act 2007 s.15(4), (5).

The Upper Tribunal may also make an award of damages, restitution or the recovery of a sum due if the application includes such a claim and the Tribunal is satisfied that the High Court would have made such an award if the claim had been made in a High Court action: Tribunals, Courts and Enforcement Act 2007 s.16(6).

Where the upper Tribunal makes a quashing order, it may remit the matter back to decision maker with a direction to reconsider the matter and reach a decision in accordance with the findings of the Upper Tribunal, or, in the case of the decision of a court or tribunal quashed on the ground that there has been an error of law, it may substitute its own decision where, without the error, there would have been only one decision that the court or tribunal could have reached: Tribunals, Courts and Enforcement Act 2007 s.175. A decision substituted by the Upper Tribunal has effect as if it were a decision of the relevant court or tribunal.

Requirement for prompt commencement

In a claim for judicial review the claim form must be filed promptly, and in any event not later than three months after the grounds to make the claim first arose (CPR, r. 54.5(1)). This time limit may not be extended by agreement between the parties (r. 54.5(2)). Where the High Court considers that there has been undue delay in making a claim for judicial review, the court may refuse to grant permission or any relief sought in the claim if it considers that the grant of the relief sought would be ‘likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration’ (Senior Courts Act 1981, s. 31(6)).

PROCEDURE ONCE PERMISSION HAS BEEN GRANTED

Defendant’s evidence and evidence in reply

If permission is given to proceed with a claim for judicial review, the order granting permission will be served on the defendant and any other person who filed an acknowledgement of service (CPR, r. 54.11). Any of those persons who wish to contest the claim, or to support it on additional grounds, must, within 35 days after service of the permission order, file and serve the detailed grounds for contesting or supporting and their written evidence (r. 54.14(1)). If it is intended to rely on documents not already filed, a paginated bundle of the new documents must be filed with the detailed grounds (PD 54A, para. 10.1). In judicial review proceedings, CPR, r. 54.14(1), applies instead of r. 8.5(3) to (6) (r. 54.14(2)). The 35-day time limit can be extended or shortened on application to a master of the Administrative Court Office or a High Court judge (r. 3.1(2)(a)). The 35-day time limit applies both to written evidence and to detailed grounds for contesting the claim or supporting it on additional grounds (R (J) v Newham London Borough Council [2001] EWHC 992 (Admin), The Independent, 10 December 2001). Failure to serve within the time limit may be dealt with by the general discretion of the court to extend time, subject to the overriding objective. Any evidence in reply should include details of facts which the defendant intends to rely upon, its answers to issues raised by the claimant, a response to the claimant’s evidence, and should exhibit all documents relevant to the decision challenged which have not been exhibited with the claimant’s evidence and which the defendant wishes to rely upon at the substantive hearing. The written evidence should also make clear if there is any factual conflict between the claimant and the defendant. The written evidence should be filed in the Administrative Court Office.

Permission to proceed with a judicial review claim is permission to proceed on specified grounds only. The claimant will not be able to rely on other grounds without further permission from the court (r. 54.15). Notice of intention to rely on additional grounds must be given to the court, and to any other person served with the claim form, no later than seven clear days before the hearing (or the warned date if one has been given) (PD 54A, para. 11.1). Where there is good reason to allow argument on an additional ground, permission should be granted. Each case should be considered on its facts. In exercising discretion, a judge should bear in mind that if permission to rely on a ground is refused, the Court of Appeal on an appeal from the hearing at first instance would not be able to consider it (R (Smith) v Parole Board [2003] EWCA Civ 1014, [2003] 1 WLR 234).

Interim remedies

Although most forms of interim remedies are available in judicial review proceedings, obtaining interim remedies is more restricted than in private law actions. Generally the most appropriate time to apply for interim remedies is at the stage of applying for permission but a court may grant interim remedies to any of the parties during the course of judicial review proceedings. (If interim remedies are sought after the substantive application has been dismissed, pending appeal, it will be necessary to show that the appeal has a good prospect of success).

Injunctions are the main type of interim relief ordered in judicial review proceedings. To obtain an interim injunction in a civil case, it must be established that the claimant has a serious issue to be tied on the merits and that the ‘balance of convenience’ favours the making of an interim order (American Cyanamid Co. v Ethicon Ltd [1975] AC 396; see chapter 37). The balance of convenience test involves the court considering whether there is an adequate alternative remedy in damages, the interests of the general public to whom the duties are owed, the importance of upholding the law of the land, and the duty upon certain authorities to enforce the law in the public interest. There is a presumption in favour of a cross-undertaking in damages (PD 25A, para. 5.1(1)). The approach to applications for interim injunctions in judicial review proceedings is similar to that adopted in applications for interim injunctions in private law claims (R v Kensington and Chelsea Royal London Borough Council, ex parte Hamell [1989] QB 518). However, where public bodies are concerned the balance of convenience may be more difficult to make out – i.e. ordinary financial considerations may be qualified by recognition of the interests of the general public (Smith v Inner London Education Authority [1978] 1 All ER 411). Usually an application is for a prohibitory injunction to prevent a public body from doing something. Where a mandatory injunction is sought, the order will not be granted unless the court has a high degree of assurance of the merits of the case

SUBSTANTIVE HEARING

Listing the hearing

If the parties agree about the final order to be made in a claim for judicial review, the claimant must file at the court two copies of a document signed by all the parties setting out the terms of the proposed agreed order, together with a short statement of the matters relied upon as justifying the proposal and copies of any authorities or statutory provisions relied on (PD 54A, para.17.1. The court will consider the documents and will make the order if satisfied that the order should be made (para. 17.2). If the court is not satisfied that the order should be made, a hearing date will be set (para. 17.3). Where the agreement relates to an order for costs only, the parties need only file a document signed by all the parties setting out the terms of the proposed order (para. 17.4).

Oral evidence

In judicial review proceedings the Administrative Court may, either under CPR, r. 32.1, or its inherent jurisdiction, hear oral evidence and order the cross-examination of witnesses (R (G) v Ealing London Borough Council [2002] EWHC 250 (Admin), [2002] ACD 48). In practice, the courts very rarely allow cross-examination in judicial review cases on the basis that it is not usually required in the interests of justice (Khera v Secretary of State for the Home Department [1984] AC 74; George v Secretary of State for the Environment (1979) 77 LGR 689). Generally, the applications to cross-examine will be successful only where they are necessary in relation to disputes over the factual circumstances, in particular, applications based upon procedural impropriety where there is a material conflict of evidence about the procedure followed by the defendant, or where bad faith and/or bias is alleged against the defendant. In the absence of cross-examination the defendant’s evidence of the facts must be assumed to be correct, unless there are documents which show that this evidence cannot be correct. Therefore, the proper course of action for a claimant who wishes to challenge the defendant’s evidence is to apply for cross-examination of the relevant witness, despite the general practice of not permitting cross-examination (R (McVey) v Secretary of State for Health [2010] EWHC 1225 (Admin), [2010] ACD 95).

Expert evidence

The general approach to evidence in judicial review proceedings is that fresh evidence can only be adduced in very limited circumstances (R v Secretary of State for the Environment, ex parte Powis [1981] 1 WLR 584). However, in some cases fairness may require that new expert evidence is used, although such cases will be very rare. Expert evidence will be allowed only to explain technical processes, and not to give an opinion on the reasonableness of the expert tribunal’s decision, which would amount to an attempt to challenge the technical judgment of the tribunal on the merits of the case (R (Lynch) v General Dental council [2003] EWHC 2987 (Admin), [2004] 1 All ER 1159).

Substantive judicial review applications in civil matters are therefore generally heard by a single judge sitting in open court. There may be cases involving regulatory issues in which a private hearing may be ordered in the light of CPR, r. 39.2(3)(a) or (c), in circumstances involving confidential information or significance or where there is a special reason to fear that reporting of the case may be unbalanced (R (Amvac Chemical UK Ltd v Secretary of State for the Environment Food and Rural Affairs [2001] EWHC 1011 (Admin), [2002] ACD 219). A substantive application in a civil case is heard by the Divisional Court only in exceptional circumstances such as where the application raises questions of difficulty, complexity or importance. Occasionally, the hearing may be before a judge in chambers. In exceptional cases the Court of appeal may, where it deal with an appeal against refusal to give permission to proceed with a claim for judicial review, hear the substantive application (e.g. as in British Airways Board v Laker Airways Ltd [1984] QB 142). However, usually the substantive hearing is heard by a different judge or court from that which granted permission.

REMEDIES

All the remedies available in judicial review proceedings are subject to the discretion of the court, so that even if a case is proved the court may refuse any or all of the remedies sought by the claimant. The High Court may exercise its discretion under the Senior Courts Act 1981, s. 31, to make the prerogative mandatory, prohibiting and quashing orders and provide the private law remedies of injunction, declaration, damages, restitution or the recovery of any sum due. The Administrative Court may make a declaration of incompatibility under the Human Rights Act 1998, s. 4. These remedies may be sought individually (except that a judicial review claim may not seek a money remedy alone: CPR, r. 54.3(2)), alternatively or in combination. Declaratory and injunctive relief are obtainable in proceedings for judicial review even when one of the prerogative orders is capable of being granted (R v Secretary of State for Employment, ex parte Equal Opportunities Commission [1995] 1 AC 1).

The discretionary nature of remedies

All public law remedies are discretionary, i.e. even though the claimant has standing to commence judicial review proceedings, the decision or action in question is reviewable, and the grounds for review are proved, the court may yet decide not to award the claimant all or part of the remedies requested. The court has withheld remedies on a number of grounds.

A court may refuse relief because of the claimant’s conduct or motives, for example, where the claimant suppressed or misrepresented material facts in presenting the claim (R v Kensington Income Tax Commissioners, ex parte Princess Edmond de Polignac [1917] 1 KB 487), or delayed in commencing proceedings. The time limits set out in CPR, r. 54.5(1) and the Senior Courts Act 1981, s. 31, must be adhered to strictly and therefore undue delay may result in the refusal of any relief. The court may also refuse to grant relief if it believes the likely effect of a remedy will serve no practical purpose, e.g. in cases where the public body has already remedied its position to meet the claimant’s demands (R v Gloucestershire County Council, ex parte P [1994] ELR 334) or where a public body shows that it is doing all it can to comply with its statutory duty. The quashing of a challenged planning permission may be withheld where it is impossible to sever the part to which the claimant’s challenge relates from the rest of the planning permission, which was lawfully granted. In those circumstances relief would simply take the form of a declaration that the local authority had failed to consult properly before granting planning permission (R (Guiney) v Greenwich London Borough Council [2008] EWHC 2012 (Admin), LTL 15/8/2008). Breach of a statutory provision may have such an insignificant effect that the court may refuse relief (as in R v Dairy Produce Quota Tribunal, ex parte Davies [1987] 2 CMLR 399). In exercising its discretion, the court will take into account whether others will be directly or indirectly affected by its decision – e.g. a decision which has the potential to affect a large number of individuals such as an inquiry into a new motorway. Therefore reliance upon a decision by third parties may also induce the court not to grant the remedy claimed.

Quashing order

A quashing order deprives the decision which is being reviewed of all legal effect and the decision challenged is therefore effectively set aside. Until a decision is quashed, it is deemed to possess a ‘presumption of validity’ and is disobeyed at the claimant’s risk pending the substantive judicial review hearing (F. Hoffmann-La Roche & Co. AG v Secretary of State for Trade and Industry [1975] AC 295).

A quashing order is available to quash the decisions of inferior courts or tribunals and any other public body ‘having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially’ (per Lord Atkin in R v Electricity Commissioners, ex parte London Electricity Joint Committee Co. (1920) Ltd [1924] 1 KB 171). The courts have subsequently accepted that a quashing order is not confined to the review of decisions of a judicial nature (R v Hillingdon London Borough Council, ex parte Royco Homes Ltd [1974] QB 720). The court will consider the nature of the power exercised in order to determine whether this test has been satisfied. A quashing order may be claimed against a broad range of administrative decision-makers, e.g. local authorities, legal committees and ministers of the Crown and may relate to administrative decisions and delegated legislation.

When a quashing order is sought and the court is satisfied that there are grounds for quashing the decision it may in addition remit the matter to the decision-maker and ‘direct it to reconsider the matter and reach a decision in accordance with the judgment of the court’ (CPR, r. 54.19(2)(a)). This power may be used to ensure that a decision is reconsidered and a new decision made. However, there is no guarantee that a different result will be reached: the decision-maker is justified in reaching the same result again provided that the matter is reconsidered in accordance with the law. Where the court considers that there is no purpose to be served in remitting the matter to the decision-maker, it may, subject to any statutory provision, take the decision itself (r. 54.19(2)(b)). (However, where a power is given by statute to a tribunal, person or other body, it may be the case that the court cannot take the decision itself).

Prohibiting order

A prohibiting order presents the decision-maker from acting or continuing to act in excess of jurisdiction. Therefore, if a public body threatens to make an unlawful decision which could be quashed had it been made, the court may make a prohibiting order to prevent the decision being made. For example, a local council was prohibited from increasing the number of taxi licences in breach of an undertaking to consult the local professional association (R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299).

Mandatory order

A mandatory order requires an inferior court or tribunal or a person or body of persons charged with a public duty to carry out its judicial or other public duty. A mandatory order may compel a court or tribunal to state its case (R v Watson, ex parte Bretherton [1945] KB 96) and to give reasons for its decision where it was required to do so by statute (Brayhead (Ascot) Ltd v Berkshire County council [1964] 2 QB 303). This includes the provision of adequately intelligible reasons (Earl Iveagh v Minister of Housing and Local Government [1964] 1 QB 395). A mandatory order can compel a public body to exercise its discretion in accordance with the law, though the court is reluctant to use the remedy in this way (e.g. R v Barnett London Borough Council, ex parte Nilish Shah [1983] 2 AC 309).

Injunctions

Under the Senior Courts Act 1981, s. 31(2), in judicial review proceedings the court may make a declaration or grant an injunction if it considers that it would be just and convenient having regard to:

  • the nature of the matters in respect of which a remedy may be granted by way of a mandatory, prohibiting or quashing order;
  • the nature of the persons and bodies against whom a remedy may be granted by way of such an order; and
  • all the circumstances of the case.

Declarations

A declaration may be granted in judicial review proceedings in the circumstances set out in the Senior Courts Act 1981, s. 31(2).

Declaratory relief and any other private law remedy may be granted by a court even if none of the prerogative remedies is available, provided the case is within the realm of public law.

The court has a broad discretion to grant declaratory relief (Barnard v National Dock Labour Board [1953] 2 QB 18). Declarations may be sought in order to challenge the legality of decisions taken or polices adopted by a public body, to challenge delegated legislation, to determine the ambit of public law obligations, to pronounce upon questions of law and the compatibility of primary legislation with EU law (R v Secretary of State for Employment, ex parte Equal Opportunities Commission [1995] 1 AC 1).

Damages

Damages arising from any matter to which a judicial review claim relates may be awarded if the court is satisfied that they would have been awarded in an ordinary claim started at the same time as the judicial review claim (Senior Courts Act 1981, s. 31(4)).

APPEALS

An appeal against the decision of the High Court is a substantive hearing or a judicial review claim lies to the Court of Appeal and therefore to the Supreme Court in the normal way.