What is Judicial Review?
Judicial review is an audit of the legality of decision-making by public bodies.
The scope of judicial review is limited both in its availability and function: the role of the court is not to re-make the decision being challenged, or to inquire into the merits of that decision, but to conduct a review of the process by which the decision was reached in order to assess whether that decision was flawed and should be revoked. The process of bringing a claim is streamlined, and 'interested parties', who are neither applicants nor defendants, are often included in the proceedings when they have an interest in the outcome.
Which decisions can be judicially reviewed?
All bodies exercising functions of a public law nature are susceptible to challenge. It is the nature of the act or decision being challenged, rather than the identity of the body in question or the source of its powers, that matters.
This means that the boundary between public bodies, whose decisions can be subject to judicial review, and the private sector, whose decisions generally are not, is constantly evolving.
Commercial judicial review
Historically judicial review has been perceived primarily as a remedy for aggrieved individuals in immigration and planning cases. However in recent years it has been used more widely by commercial parties to challenge a variety of public law decisions, from EU Directives and primary legislation, to the decisions of regulatory authorities, both statutory and non-statutory including industry trade associations, the Financial Conduct Authroity, Prudential Regulatory Authority and HM Revenue and Customs.
City regulatory bodies, even those that are non-statutory, may be reviewable, but generally only where such bodies have been "woven into the fabric of public regulation" and all other remedies have been exhausted.
For commercial bodies, decisions relating to the procurement of commercial contracts by public bodies may be challengeable by way of judicial review, but possibly only where there has been a suggestion of fraud, corruption or bad faith, irrationality or a failure to follow a statutory process.
A party must have sufficient interest in the matter to which the judicial review relates in order to be involved in the process.
Although the courts have avoided defining exactly what amounts to a sufficient interest, the general trend over recent years has been toward a liberalisation of this requirement, with the courts increasingly unwilling to dismiss a meritorious application for lack of standing.
Pressure groups will generally be treated as having sufficient standing. This approach may be narrowed, however, in future. There is a current Government consultation looking at reforming the test for standing.
Timing and alternative remedies
An application for permission to apply for judicial review must be made promptly and in any event not later than three months from the date when grounds for the application first arose. The time limit has recently been further reduced to six weeks for planning decisions and to one month in public procurement cases.
However, there is an expectation that judicial review will be the remedy of last resort and parties which fail to engage with the pre-action protocol or to exhaust alternative methods of resolving their dispute, without recourse to the Courts, risk sanction, usually in costs, except where the court is satisfied that good reasons for not imposing a sanction exist.
Grounds for judicial review
Judicial review can be sought on the grounds that a decision is:
- illegal - arises when a decision-maker misdirects itself in law, exercises a power wrongly, or improperly purports to exercise a power that it does not have, which is known as acting 'ultra vires';
- irrational - a decision may be challenged as unreasonable if it "is so unreasonable that no reasonable authority could ever have come to it";
- procedurally improper – a failure to observe statutory procedures or natural justice; or
- in breach of legitimate expectation, either procedural or substantive) – when a public body is, by its own statements or acts, required to respond in a particular way but fails to do so. There cannot, however, be any expectation that the body will act unfairly or beyond its powers and the need to observe expectations must not fetter the public authority.
The question of remedies is often critical in judicial review proceedings, as it may determine not only whether it is worthwhile bringing a claim, but also whether permission will be granted to bring the claim.
One or more of six forms of final relief are available, and all are discretionary. These are:
- an order quashing the decision in question (quashing order);
- an order restraining the body under review from acting beyond its powers (prohibitory order) – this is rare as an injunction will usually suffice;
- an order requiring the body under review to carry out its legal duties (mandatory order);
- a declaration;
- a stay or injunction;