You May Need a Judicial Review
Judicial review is the legal mechanism by which the High Court supervises the lawfulness of decisions made by public bodies. There is a strict 3-month time limit and a pre-action protocol must be followed.
Quick Answer
Judicial review must be brought promptly and in any event within 3 months of the decision challenged (shorter time limits apply to planning and procurement decisions). A pre-action protocol letter must be sent to the public body first. You need 'standing' (be sufficiently affected). Legal aid is available in some cases. This is a complex, costly procedure โ exhaust all other remedies first.
Full Explanation
Judicial review is the supervisory jurisdiction of the Administrative Court (part of the King's Bench Division of the High Court) over public bodies exercising public functions. It is governed by Part 54 of the Civil Procedure Rules and section 31 of the Senior Courts Act 1981. Judicial review is not an appeal on the merits โ the court does not substitute its own decision for the decision-maker's. Instead, it reviews the lawfulness of the process: was the decision made legally, rationally, and procedurally fairly?
The grounds of judicial review are classically described as illegality (the decision-maker acted outside their powers), irrationality or unreasonableness (the decision was so unreasonable no reasonable authority could have reached it โ Wednesbury unreasonableness from Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), and procedural unfairness (the person affected was not given a proper opportunity to be heard or the decision-maker was biased). Since the Human Rights Act 1998, a further ground is incompatibility with Convention rights.
The time limit is strict and jurisdictional: the claim must be filed promptly and in any event within 3 months of the date of the decision. For planning decisions (under the Town and Country Planning Act 1990 s.288), the limit is 6 weeks. For procurement challenges, it is 30 days. The court has power to extend time in exceptional circumstances but rarely does so in the absence of compelling justification.
Before issuing proceedings, the claimant must send a pre-action protocol letter (PAP letter) to the proposed defendant. The PAP sets out the decision challenged, the grounds of challenge, and the remedy sought, and invites the defendant to respond within a specified period (usually 14 days for urgent cases, 21 days generally). The defendant's response may resolve the dispute without the need for proceedings.
Proceedings begin at the permission stage. A High Court judge (usually on the papers) considers whether the claim is arguable. Many claims are refused permission at this stage. If permission is granted, the case proceeds to a substantive hearing. Remedies available include quashing orders (quashing the unlawful decision), mandatory orders (requiring the authority to act), prohibiting orders (preventing unlawful action), and declarations.
Legal Basis
- ยงSenior Courts Act 1981 s.31 โ judicial review jurisdiction
- ยงCivil Procedure Rules Part 54 โ judicial review procedure
- ยงAssociated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 โ Wednesbury unreasonableness
- ยงHuman Rights Act 1998 โ Convention rights as grounds of challenge
- ยงPre-Action Protocol for Judicial Review (CPR Practice Direction)
What To Do
Send a Pre-Action Protocol Letter
Before issuing proceedings, send a PAP letter to the public body's legal department. The letter should identify the decision being challenged, the grounds, the remedy sought, and a reasonable response deadline (usually 14โ21 days). Keep a copy and proof of delivery.
File the Permission Application
If the PAP response is unsatisfactory (or there is no response), file a claim form (N461) at the Administrative Court within the limitation period. The form must be accompanied by a detailed statement of facts and grounds, all relevant documents, and a skeleton argument if required.
Attend the Permission Hearing
A judge will consider the permission application, usually on the papers. If refused, you may renew the application orally (at an oral renewal hearing). If permission is granted, the case proceeds to a substantive hearing.
Consider Applying for Urgent Relief
If the unlawful decision is causing immediate harm, you may apply for an urgent stay of the decision or interim relief. This requires a very clear case and typically requires an undertaking in damages. Urgent JR applications can be filed on a same-day basis.
Important Deadlines
Important Warnings
Judicial review is very expensive โ costs can exceed ยฃ50,000 in a contested case. Even if you win, you may not recover all your costs. Legal aid is available in limited circumstances through the Legal Aid Agency.
The court will refuse permission if all other remedies (complaints procedures, statutory appeals, ombudsman routes) have not been exhausted โ always try alternative routes first.
A Cart judicial review challenges a decision of the Upper Tribunal refusing to grant permission to appeal a First-tier Tribunal decision โ this is now subject to a very high threshold following R (Cart) v Upper Tribunal [2011] and subsequent legislative reform under TCEA 2007.