judicial review

Judicial review is a process by which English courts exercise its jurisdiction to review the decisions of administrative bodies to ensure that decisions affecting the rights of individuals are lawful. Courts exercise this jurisdiction in respect actions, failures to act and decisions of public bodies which have a public duty to perform. Such persons include Ministers of the Crown, Inland Revenue Commissioners, local authorities, companies set up by a local authorities charged with performance of a public duty, police authorities and disciplinary bodies exercising statutory powers. Private or domestic tribunals (tribunals such as the Jockey Club) determining disputes are not within the jurisdiction of the Court. Claims for judicial review are not made for the primary purpose of claiming damages or pecuniary loss.

Any person who has sufficient interest in the decision may apply for judicial review. In essence, where a person’s personal interests are affected by the decision, that person is likely to have standing to apply for review. Broadly speaking, the court has jurisdiction to conduct judicial review on a number of grounds, including:

1. An excess of jurisdiction, whereby the tribunal exceeded its jurisdiction or made its decision without any jurisdiction to do so. Public bodies have defined areas within which they may discharge their authority. For instance, where the jurisdiction is defined, the preconditions for the exercise of that jurisdiction must be adhered to. Similarly where procedures for the hearing are defined, those procedures must be adhered to. Limitations are also likely to apply to the matters or facts which may be taken into account by the tribunal; consideration of matters or facts outside that remit, or deciding the matter on the basis of the application of incorrect criteria (for instance, it relied on an error of law to arrive at the decision) are likely to render the decision subject to challenge by judicial review if those matters are material to the decision.
2. An error on the face of the record, whereby an error of law appears on the record. The error usually manifests itself in the reasons for the decision.
3. Failure to comply with the rules of Natural Justice. Such failures include a failure to give proper notice of the specific claims against a person as well as failing to grant a fair opportunity to be heard to defend the claims. The measure of time and opportunity to defend the claims will rely upon the extent that the decision alters the legal rights or obligations which are enforceable in a private law setting, or the extent that the decision deprives an individual of a benefit or advantage which he had in the past.
4. The decision is so unreasonable that no reasonable tribunal directing itself on the law could have reached the decision.

Authorities delegated power to decide matters are not permitted in turn to delegate that power, unless permitted by the enabling statute.

Judicial review is conducted within strict timetables which differ from the usual Rules of Court. These timetables may not be extended by agreement between the parties. The permission of the Court must be obtained in order to extend time. The first of these timetables is that the Claim Form must be filed promptly after the decision, and in any event no later than 3 months from the date of the decision to be reviewed. The Court is likely to be minded to extend this timetable where the delay is able to be explained and to deny access to the Court would cause substantial prejudice or hardship to the claimant or any member of the pubic, as a class or otherwise.

Proceedings for judicial review are commenced in accordance with Part 8 of the Civil Procedure Rules. The Claim Form commencing the judicial review proceedings and evidence in support must include:

1. statement of the grounds for bringing the claim for judicial review.
2. detailed statement of the facts relied on.
3. copy of any order or decision which the claimant seeks to have quashed.
4. an approved copy of the reasons for reaching that decision where the claim for judicial review relates to a decision of a court or tribunal.
5. copies of any documents on which the claimant proposes to rely.
6. copies of any relevant statutory material.
7. a list of essential documents for advance reading by the court.
8. an application for directions if directions are to be sought.

If the claimant is not able to include any of the foregoing, it must include an explanation of why the materials are omitted.

After issue of the proceedings and Acknowledgements of Service are filed, the Court progresses to decide whether to refuse permission to proceed or allow the review to proceed. Even if the Court decides that it will allow proceedings to continue, the Court is at liberty to impose conditions upon the parties participating in the judicial review. In the event that the Court refuses permission, the applicant for the review may request that the Court’s decision is reconsidered at a hearing, however if permission is grant to proceed, the defendants and/or other parties served with the proceedings are not entitled to apply to appeal or apply to set the decision aside. If the Court refuses permission or allows the permission subject to conditions, the Court will provide reasons for doing so. The Court may also order that the claim continue as if it had not been made as a claim for judicial review, that is under Part 7 of the Civil Procedure Rules.

Assuming permission has been granted, the judicial review will continue, with the directions likely to require the defendant to file evidence within 35 days setting out why the claim is contested, giving detailed reasons. Other persons served with the claim form may file and serve additions reasons supporting the claim.

A skeleton argument is required to be filed and served by the claimant not less than 21 days before the hearing, along with the trial bundle. The defendant is required to file its skeleton argument not less than 14 days before the hearing. Skeleton arguments should ordinarily contain:

1. time estimate for the hearing, including an estimate for the time to deliver judgment;
2. list of issues to be considered;
3. list of the legal points to be made, accompanied by references to the authorities relied upon with page references;
4. chronology of events;
5. list of documents to be read in advance of the hearing and a time estimate for that reading; and
6. list of persons referred to in the skeleton argument.

After the Court has reviewed the decision, the Court may make orders:

1. dismissing the claim.
2. that the decision of the tribunal is quashed (i.e. certiorari) and remit the decision to the decision-maker, and direct that the decision be made in accordance with the judgment of the Court (i.e. mandamus).
3. finding that the previous inaction by a tribunal was unlawful and direct that the tribunal act to carry out its public duty (i.e. mandamus). Disobedience of such an order is a contempt of court.
4. that the tribunal is not to act outside its jurisdiction (prohibition).
5. declaring the rights of the claimant or granting an injunction.
6. its own decision be substituted for the decision which is the subject of the proceedings, provided the relevant enactment permits this course.

Claims for judicial review must be made within 3 months of the date that the decision to be reviewed is made. A court will be reluctant to allow judicial review to proceed unless all other avenues of review have been exhausted. It is therefore an avenue of last resort, to be taken after avenues of appeal of the tribunal’s decision are taken.

Usage: The publican sought judicial review of the decision of the licensing authority.

Related Words: Claim Form; evidence in support; Civil Procedure Rules; Part 7 Claim; Part 8 Claim.