JUDICIAL REVIEW: THE PROCEDURE
Introduction to Administrative Law and Judicial Review
The mandate and missions of the State administration requires that government, local authorities or courts are able to use special public prerogatives for example to purchase property compulsorily or to impose imprisonment. These powers are, of course, granted to public authorities almost exclusively by means of statutes which – at least in theory – delineate the extent and scope of those powers.
Judicial review is often seen as the major way in which the legality of administrative action is controlled. It is the cornerstone of administrative law. This is the mechanism by which the courts are able to scrutinise the decision-making processes and the legality of actions or decisions taken by public authorities and officials. Under judicial review proceedings, judges are thus capable of examining the legality of public decisions.
Similar procedures exist in a large number of other European states. This is an approach which stresses the role played by the law in the control of administrative activities, and is underpinned by the doctrine of ultra vires which imposes on public bodies the obligation to lawfully act within the limits of the powers given to it.
Historically, the massive expansion of the administrative state over the last hundred years, with the state taking on responsibility for education, health provision, energy, social services and housing; logically imposed on public bodies to operate within the bounds of legality. Consequently, administrative law is defined as the legal framework through which public bodies may deliver better, in other words more transparent and fair, public services.
Judicial review has evolved along with important jurisprudential developments in the 1960’s. Initially restricted to certain domains, it now touches almost every aspect of public decision-making such as, for example: planning, financial services, immigration and asylum, public transport, social security, university discipline, controls on broadcasting, and environmental regulation.
The definition and objectives of Judicial Review
In the words of H. Barnett: “Judicial review represents the means by which the courts control the exercise of governmental power. Government departments, local authorities, tribunals, state agencies and agencies exercising which are governmental in nature must exercise their powers in a lawful manner”. Accordingly, as stated earlier, the rationale behind judicial review stems from the core principles of the Rule of law.
The Rule of law imposes on rulers to respect and act in compliance with law. As a result, for example, those exercising power can only act on the basis of a legal provision, subjected to the will and limited to the terms provided for by Parliament, as a justification of their action. Judicial review ensures that this principle is respected. Lord Phillips famously stated: “The common law power of the judges to review the legality of administrative action is a cornerstone of the rule of law in this country and one that the judges guard jealously”.
Throughout the development of case law on judicial review, key elements of this procedure have arisen. Firstly, judicial review can be brought against one or several bodies, regardless of their rank in the hierarchy of the administration (from a Secretary of State to a Parole Board). We will see below that judicial review proceedings may also be introduced against bodies that are not, in a strict sense, public authorities.
Judicial review is not confined to “executive actions” of governmental bodies; it can also include reviewing the decision-making process of judicial bodies of inferior courts. It should be noted that judicial review, technically speaking, is brought in the name of the Crown.
General principle: The objective of judicial review is not to appellate a public law decision on the merits but rather to examine the legality of the decision-making process.
Chief Constable of the North Wales Police v Evans , 1 WLR 1155
Facts: The claimant argued that he was unjustly dismissed as a probationary constable. The Chief Constable interviewed him and asked him to resign rather than formally firing him on the grounds that Evans married a woman much older than himself, that he was keeping four dogs in a police council house, which had a one dog limit, and that he and his wife lived a “hippy” lifestyle. He tried to challenge the legality of the decision under judicial review.
Ratio: The Court found the probationer police constable to have been unlawfully induced the claimant to resign, but the court could not order his reinstatement.The House granted instead a declaration: “affirming that, by reason of his unlawfully induced resignation, he had thereby become entitled to the same rights and remedies, not including reinstatement, as he would have had if the chief constable had not unlawfully dispensed with his services under regulation 16(1)”. Lord Brightman concluded: “Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power be itself guilty of usurping power”.
Application: In this case, the Court made it clear that the purpose of judicial review was not to question a decision itself. Courts should not serve as appellate jurisdictions but rather as operators of a review of the legality of decision-making processes. As Lord Green MR stated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223: “it is not an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local have contravened the law by acting in excess of the powers which Parliament has confided in them”.
Modern debates over Judicial Review
Historically, the British constitutional system has been compared by Dicey to the French constitutional system which distinguishes administrative and civil jurisdictions. In the UK, it was decided that state officials were held to account before ordinary courts, without such separation.
However, this view has been reversed later on along with the modern development and nature of judicial review. The High Court historically has exercised the power of judicially controlling the actions of public authorities. In 2000, the Crown Office List, a branch of the High Court in charge of the processing of judicial review applications, was renamed the “Administrative Court”. In addition to this, section 22 of the Crime and Courts Act 2013 allows immigration, asylum and application for nationality to be transferred from the Administrative Court to the Upper Tribunal. Therefore, though changes have been made to confer to specialist judges the examination of judicial review cases, there is still no clear-cut separation between two different orders of jurisdictions as it is the case in France.
Judicial review is subject to many criticisms as it has been devised by the judges, for the judges and against the executive. Indeed, judicial review is a product of common law. It is the courts themselves, and not Parliament, who created, defined and significantly expanded judicial review. Judges are not elected and because of social inequalities, not representative of the society. Accordingly, judges do not enjoy the same legitimacy than MPs or elected members of the executive.
To some extent, striking down decisions of the administration can be seen as a form of judicial activism, especially regarding the recent developments that extended the powers of judges under judicial review. However, it should be remembered that the executive is neither elected per se, and the powers of judges to review the legality of its action is strictly limited, as it will be developed below.
Amenability of a Decision to Judicial Review
As a general rule, only public law decisions are amenable to judicial review. The typical situation in which judicial review is the appropriate legal course of action is when a government body is carrying out a public function. However, both non-governmental bodies and inferior courts are also subject to judicial review.
It is generally accepted that public law decisions of government ministers and departments are subject to judicial review.
Bodies subject to judicial review
General principle: The Home Secretary’s actions, as actions of any other government minister, are subject to challenges in judicial review.
R (Venables and Thompson) v Home Secretary  UKHL 25
Facts: The claimants argued that the Home Secretary had unlawfully decided not to release them from prison, after they were convicted of murder as children. The Home Secretary took into account public petitions demanding the murderers to be imprisoned for life. They sought to challenge this decision under judicial review.
Ratio: The House of Lords held by 3 votes to 2, that the Home Secretary acted unlawfully by taking into account irrelevant considerations (a public petition) and failing to take into account relevant considerations (progress in detention). Lord Steyn considered the following: “The Home Secretary misunderstood his duty. This misdirection by itself renders his decision unlawful”.
Application: Governmental bodies are traditionally subject to judicial review. In this case, the House of Lords made it clear that judicial review can be brought against any public body, regardless of their rank in the hierarchy of the administration.
In addition to public bodies of central government, decisions of local authorities and devolved institutions are also subject to judicial review. The scope of judicial review encompasses inferior courts’ decisions including The Crown Court, The Magistrates’ Court, The Coroners’ Court, the Election Courts and Tribunals.
Judicial review also represents a possible course of legal action against decisions of non-governmental bodies exercising public law powers. Historically, the courts looked at the source of a body's power when deciding whether it would be subject to judicial review. If the body was created by or exercised power pursuant to statute, its decisions would normally be considered amenable to judicial review. However, in addition to the source of powers, courts nowadays look at the nature of such powers, determining whether or not they are de facto governmental in nature.
General principle: If a private body is exercising a public law function, or if the exercise of itsfunctions has public law consequences, these elements may be sufficient to bring the body within the reach of judicial review.
R v Panel of Take-overs and Mergers, ex parte Datafin  QB 815
Facts: The claimant sought judicial review of a Panel which was a non-governmental body and had not been established by an Act of Parliament or under royal prerogative. It was a body established to regulate the City Code in London.
Ratio: The Court of Appeal underlined that judicial review was an adaptable procedure and could be extended to a body which performed public law duties. The Panel was a powerful body taking important decisions on the regulation of the financial activity of the City of London. Accordingly it was a de facto public body that was subject to judicial review. Lloyd LJ stated: “If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review (...) if the body is exercising a public law function, or if the exercise of its functions have public law consequences, then that may be sufficient to bring the body within the reach of judicial review.”
Application: For the first time, judicial review was accepted to challenge actions of a body that was not, per se, part of public administration. This extensive approach has been reinforced by the Civil Procedure Rules Part 54.1(2)(a)(ii) which defines judicial review in terms of a claim to review the lawfulness of a decision or action “in relation to the exercise of a public function”.
Application of the Datafin principle
General principle: Not all non-governmental regulatory authorities exercise public functions. Only those exercising governmental functions.
R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan,  2 All ER 853
Facts: In this case, the decision of the Jockey Club was being challenged under judicial review. This private body regulated horse racing in Britain (licences and authorisations were provided for race meetings).
Ratio: The Court of Appeal held that, although the decision of the Jockey Club affected the public, it was not a public body (in terms of history, constitution and membership) and did not exercise governmental functions. It noted that the powers of the Jockey Club to regulate horse racing were derived from an agreement between private parties.
Application: It should be noted that not all regulatory authorities exercise public functions. This case should be contrasted with R v Panel of Take-overs and Mergers, ex parte Datafin  QB 815 where the defendant was a powerful body regulating financial activity, which was considered by the Court of Appeal to be a public law duty.
General principle: Powers which are sufficiently public in nature are powers that the administration of the State would have to exercise in the absence of performance by a private body.
R v Chief Rabbi of the United Hebrew Congregation of GB and Commonwealth, ex parte Wachmann,  2 All ER 249
Facts: On the ground of suspected adultery, the Chief Rabbi of the Jewish religion exiled the claimant from the religion. The latter sought to challenge this decision under judicial review.
Ratio: The High Court refused to subject the functions of the Chief Rabbi to jurisdiction of judicial review. It noted that for a body to be amendable to judicial review, it must have some connection to government. The functions of the Chief Rabbi were in essence religious and spiritual and were such that the government would not seek to discharge them in his absence.
Application: One has to look at the traditional conception of public law duties when appreciating the public nature of powers exercised by non-governmental bodies. The body will not be subject to judicial review if the function performed is not likely to be otherwise performed by the State. However, it should be noted that even if private regulatory authorities are not subject to judicial review, courts, in the course of private law proceedings, may also apply certain administrative principles (for instance the duty to act fairly, see Nagle v Feilden , 2 QB 633).
The O'Reilly principle
The exclusivity principle provides that public law rights should be enforced through judicial review (Pt. 54 of the Civil Procedure Rules). The aim of this principle is to protect the administration from unrestricted potential challenge of its action. It also prevents “busybodies” to introduce abusive legal actions.
General principle: Where a claimant argues that a public law issue is at stake, he must use the special judicial review procedure to enforce this public law right. Bringing a public law issue by any other ordinary action would amount to an abuse of process of the court.
O'Reilly v Mackman  2 AC 237
Facts: Four prisoners were convicted to disciplinary penalties by the Visitors Board. In order to challenge this decision for alleged bias, they decided to use private law proceedings.
Ratio: The Court held that the prisoners had used the wrong procedure. It noted that judicial review was the exclusive procedure for challenging public law decisions and that private law matters were to be dealt with by ordinary action. Accordingly, it would be contrary to public policy to evade the procedural protection afforded to public bodies under judicial review. Lord Diplock however conceded that: “I have described this as a general rule (…) there may be exceptions, particularly where the invalidity of the decision arises as a collateral issue in a claim from infringement of a right of the claimant arising under private law, or where none of the parties objects to the adoption of the procedure by writ or originating summons”.
Application: In this case, the Court laid down a general principle which was intended to be restricted with legitimate exceptions, as Lord Diplock announced it. The court determined that judicial review was the exclusive procedure for challenging public law decisions and that private law matters were to be dealt with by ordinary action. To bring a public law challenge any other way would amount to an abuse of process of the court.
General principle: Where private rights depended upon prior public law decisions, the judicial review process should ordinarily be used.
Cocks v Thanet District Council  UKHL 10
Facts: The claimant, a homeless person, argued that he had a right to be provided with accommodation under the Housing (Homeless Persons) Act 1977. He sought to enforce the obligation on the respondent to house him permanently by an action in the county court. The defendant claimed that this was an abuse of process as he should have used judicial review.
Ratio: The House of Lords held that it would be an abuse of court process to allow the claimant to seek relief in respect of his claim otherwise than by an application for judicial review. Where the action impugned the authority’s performance of its statutory duties as a pre-condition to enforcing private law rights, the correct way was to do so within judicial review proceedings. The authority’s decision could not be challenged by an ordinary action.
Application: In this case, the House of Lords applied the principle laid down in O'Reilly v Mackman  2 AC 237, making it clear that in cases involving private and public rights, where private rights depended upon prior public law decisions, the exclusivity principle should be applied.
Exceptions to the O’Reilly rule: Mixed Public/Private Law
The principle of procedural exception is subject to several exceptions which allows for a flexible application.
General principle: It is not an abuse of process for a claimant to use ordinary proceedings to enforce a private law right where it incidentally involved challenging a public law decision.
Roy v Kensington and Chelsea and Westminster Family Practitioner Committee (FPC)  1 AC 624
Facts: The claimant, a doctor practicing for the NHS, suffered a reduction of practice allowance of 20% by the Family Practitioner Committee because he was not dedicating enough time to his NHS missions. The claimant brought a private action against the Family Practitioner Committee for breach of contract. The respondent sought to have the action struck out as an abuse of process given that he should have introduced judicial review.
Ratio: The House of Lord considered that it was not an abuse of process to use ordinary proceedings to enforce a private law right where it incidentally involved challenging a public law decision. In the present case, the claimant’s main purpose was to enforce a private law right and the challenge of a public law decision was merely incidental. In the words of Lord Lowry, delivering the unanimous opinion: “an issue, which was concerned exclusively with public right, should be determined in judicial review proceedings. However, where a litigant was asserting a private law right, which incidentally involved the examination of a public law issue (the FPC's decision), he was not debarred from seeking to establish that right by ordinary action. Dr Roy had a bundle of private law rights, including the right to be paid for work done, which entitled him to sue for their alleged breach. It was not an abuse of the process of the court to proceed as Dr Roy had done”.
Application: In this case, the House of Lords limited the scope of application of the principle of procedural exclusivity. One should look at the main purpose of the claimant where both private law and public law rights are involved.
General principle: Respondents have a right to invoke a public law issue and challenge a public law decision in their defence in private law proceedings.
Wandsworth London BC v Winder  AC 461
Facts: A local council brought private legal proceedings against a council tenant for arrears of rent and possession of his flat. The respondent argued that the recent increase of rents, through a resolution of the local council, were abusive and ultra vires.
Ratio: The House of Lords held that, even though the respondent did not initiate the proceedings, he had a right to challenge the local authority’s decision in his defence. In the present case, it considered that the local Council had acted unreasonably.
Application: The House of Lords accepted a defence based on the unlawfulness of a public decision to discharge defendant from an obligation under private law. It should be noted that this right to raise a public law issue in an individual’s defence also exists in criminal proceedings (see Boddington v British Transport Police  2 AC 143).
Another exception to the procedural exclusivity principle is the consent of the parties. As announced by Lord Diplock in O'Reilly v Mackman  2 AC 237, where the parties to a case jointly agree that a remedy can be sought under ordinary private procedures, the principle of procedural exclusivity cannot be applied against their will.
Standing in judicial review
The question here is to determine who can seek judicial review? A claimant should have sufficient interest in judicial review. This is the traditional locus standi which is one of the first requirements for introducing any legal proceedings. Section 31(3) of the Senior Courts Act 1981 stipulates that: “The court shall not grant leave unless it considers that the applicant has sufficient interest in the matter to which the application relates”.
General principle: In complex cases on judicial review, standing may be assessed at the substantive hearing together with the merits.
IRC v National Federation of Self-Employed and Small Businesses  AC 617
Facts: A national organization representing small businesses sought judicial review on the Inland Revenue’s treatment of a category of workers that were given amnesty of past tax. The organization argued that this treatment was unlawful as it constituted discrimination between taxpayers. The Court of Appeal considered that they had standing.
Ratio: The House of Lords held that the organization had no standing to seek judicial review, thereby overturning the Court of Appeal’s findings. It noted that a mere body of taxpayers did not have sufficient interest in asking the Court to investigate the tax affairs’ of other taxpayers. As Lord Scarman stated: “It is wrong in law, as I understand the cases, for the court to attempt an assessment of the sufficiency of an applicant’s interest without regard to the matter of his complaint. If he fails to show, when he applies for leave, a prima facie case, or reasonable grounds for believing that there has been a failure of public duty, the court would be in error if it granted leave”.
Application: In this case, the House of Lords made a distinction between the assessment of the standing of simple cases that can be definitively decided at leave stage and more complex cases which require an assessment when full factual and legal information about the case is available.
Two categories of individuals may seek judicial review. The first category is individuals who are directly affected by a public law decision. Standing raises no issue where a decision was taken following an individual request of the claimant. For instance, where a public body refuses a construction permit for the claimant, they will have no difficulty to prove that they have been directly affected by this decision. However, individual “busybodies” (for example a friend who is upset on the claimant’s behalf) cannot pretend to have been directly affected by the decision. The second category is an exception to this rule.
General principle: Individuals with a genuine public or constitutional interest in actions of a public body may have standing to challenge it in judicial review.
R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Rees-Mogg  1 W.L.R. 386
Facts: A peer in the House of Lords, also former editor of an important Newspaper having written multiple articles on European affairs, sought to challenge in judicial review the decision of the Foreign Secretary to ratify the Maastricht Treaty. The question of standing arose.
Ratio: The House of Lords rejected the claimant’s arguements on the merits. However, it accepted that the claimant had standing to challenge the decision as an individual with a genuine constitutional interest. As Lord LJ noted: “we accept without question that Lord Rees-Mogg brings the proceedings because of his sincere concern for constitutional issues”.
Application: This second category of individuals who may seek judicial review is an exception to the busybodies’ rule. Where claimants cannot demonstrate that they had been directly affected by a public law decision, they can submit that they had a constitutional interest in challenging such a decision.
In the context of genuine public interest see R (Feakins) v Secretary of State for the Environment, Food and Rural Affairs  EWCA Civ 1546, where Dyson LJ considered that “if a claimant has no sufficient private interest to support a claim to standing, then he should not be accorded standing merely because he raises an issue in which there is, objectively speaking, a public interest”.
It should be noted that Section 6(1) of the Human Rights Act 1998 creates a new head of incompatibility with human rights in judicial review proceedings, where standing is established if the claimant proves to be a “victim” for the purposes of Section 7 of the HRA.
Groups and organizations
Groups and organisations include inter alia associations, federations, foundations, NGOs, and pressure or interest groups. As for individuals, groups or organisations having standing in judicial review are divided into two categories. They are recognised bodies who are not only acting in their own interest but rather for the general public interest.
The first category of groups having standing in judicial review is composed of groups acting on behalf of the public interest. On this issue there had been jurisprudential debates over the appreciation of the action of such groups on behalf of the public interest when introducing judicial review proceedings.
General principle:Individuals who have no standing to challenge a public law decision cannot pretend to acquire it just because they formed themselves into a group or a company.
R v Secretary of State for the Environment, ex parte Rose Theatre Trust Co Ltd  1 QB 504
Facts: An interest group sought judicial review of a decision refusing to schedule a theatre as an ancient monument. The group consisted of people with expertise in archaeology, theatre, literature, and other fields, and also included local councillors and an MP.
Ratio: The Court held that the claimant had no standing in judicial review as members of the public in general had insufficient interest in challenging the refusal of scheduling the building in judicial review. Schiemann J held that individuals who did not have standing would not gain it just because they formed themselves into a group or a company in order, as he saw it, to engineer this status.
Application: In this case, the Court adopted a quite restrictive approach to standing which has been heavily criticised following this judgement. Its authority should be assessed globally together with later case-law.
General principle: An organization may have standing where in the absence of its involvement in the proceedings, the people it represents might not have an effective way of bringing the disputed issues to court.
R v Secretary of State for the Environment, ex parte Greenpeace Ltd (No 2)  4 All ER 329
Facts: Greenpeace, a well-known NGO advocating for environmental protection sought judicial review to challenge decisions to vary authorisations concerning radioactive waste in Cumbria. The question of standing arose.
Ratio: The claimant was granted standing by the Court. It noted that the pressure group was a well-established organisation protecting the environment and noted that it had 2500 members in the region affected by the public law decision. The court’s view was that, without Greenpeace’s involvement, the people it represented might not have had an effective way of bringing the disputed issues to court. Individual members of the organization did not have the same expertise as the organization. Claims brought individually would have resulted on far less well-informed challenges of the decision.
Application: In this case, the Court adopted a rather liberal approach on standing. In the further development of case-law on this issue, this approach has been quite predominant (see, for example, R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd  1 WLR 386).
The second category of groups that has standing in judicial review is groups acting on behalf of the interests of its members. These groups include trade unions, professional bodies or associations representing residents of a neighbour-hood.
Noteworthy, not only private persons can bring proceedings in judicial review against public law decisions but also public bodies. There are multiple examples in the courts case-law including a local government against a decision from a central authority or a Police department against a decision of the Magistrates’ Court (see R (Chief Constable of Great Manchester Police) v Salford Magistrates Court and Hookway  EWHC 1578).
Part 54.5(1) of the CPR provides that: “a claim must be filed (a) promptly and (b) in any event no later than 3 months after the grounds to make the claim first arose”. The time limit for bringing a judicial review complaint is short and strictly applied. Part 54.5(2) of the CPR stipulates that time cannot be extended by agreement between the parties.
The time limit is not particularly short compared to other European countries. For example, in France, the time limit to bring a recours pour excès de pouvoir before administrative courts is two months. This requirement of promptness ensures good administration. The administration cannot function properly if its actions are eternally challengeable before the courts.As a consequence, judicial review can sometimes be rejected because it was not filed promptly. However, under Section 26(1) of the Senior Courts Act 1981, a Court may only do so if it “considers that the granting 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”.
Since 2013 and following the 4th Amendment of the Civil Procedure, special rules regarding time limit for judicial review apply to planning decisions (6 weeks) and public procurement (30 days).
An ouster clause is a provision included in a piece of legislation to exclude judicial review of acts and decisions of the executive. As result, the clause strips the courts of their supervisory judicial function over disputed action of a public body. Courts are generally reluctant to enforce such clauses considering that it represents a threat to the Rule of law.
General principle: Total ouster clauses are to be construed as narrowly as possible.
Anisminic v Foreign Compensation Commission  2 AC 137
Facts: The Foreign Compensation Act 1950 provided that determinations of the Foreign Compensation Commission (FCC) “shall not be called into question in any court of law”. The claimant sought judicial review of a determination of the FCC, on the ground of illegality.
Ratio: The House of Lords held that the ouster clause did not prevent the claimant from challenging the decision under judicial review. It noted that Ouster clauses (like those in the Foreign Compensation Act 1950) had to be construed as narrowly as possible such that the claim was not barred.
Application: The decision illustrates the courts' reluctance to give effect to any legislative provision that attempts to exclude their jurisdiction in judicial review. Even when such exclusion is relatively clearly worded, courts will generally hold that it does not preclude them from scrutinising the legality of the decision.
Partial ouster clauses on time limit are generally accepted. They provide that for a specific action of a public body, the time limit for challenging it under judicial review is shorter than the normal time limit of 3 months. In this respect, the Section 54.5(3) Civil Procedure Rule provides that the normal time limit does “not apply when any other enactment specifies a shorter time limit for making the claim for judicial review”.
Exhaustion of Alternative Remedies
The exhaustion of alternative remedies is another requirement for a judicial review application to be amenable.
General principle: In principle, judicial review is not granted if an alternative remedy is available to the claimant.
R v Inland Revenue Commissioners, ex parte Preston  AC 835
Facts: The applicant was involved in a tax dispute with the Inland Revenue Commission. His claims were rejected in first instance. In most cases, the remedy of a taxpayer lies in the appeal procedures provided by the tax statutes. However, he decided to bring a claim under judicial review. The Court had to determine if this was possible.
Ratio: The House of Lords granted judicial review considering that the appeal procedure did not operate in the circumstances of his case. However, it emphasised that the taxpayer is expected to use the appeal procedure, where it is available, rather than resort to judicial review.
Application: When appreciating the admissibility of a judicial review application, one has to look at the alternative legal remedies available to the claimant. All of them should be exhausted or unavailable for a case to be amenable under judicial review.
Procedure in Judicial Review
The claimant (formerly the applicant) for judicial review, before bringing his case to the Court, should try to achieve a settlement with the public body. The Pre-action protocol requires the claimant to first write to the future defendant identifying the issues at stake. The claim for should be transmitted to the Court containing the public law decision being challenged and the remedy sought.
The second phase of the procedure is permission to apply for judicial review. This is a filtering system which requires claimants to ask the Court for permission to apply. In practice, permission is granted to arguable cases. Indeed, it is a first prima facie assessment of the merits of a case. If the permission is rejected, the claimant can request reconsideration at an “oral renewal”. If this is again rejected, the claimant can appeal to the Court of Appeal.
Most of the cases are rejected at the permission stage. In 2015, the Ministry of justice said that: “The proportion of all cases lodged found in favour of the claimant at a final hearing has reduced (…) to 1% in 2013 and has remained the same in 2014”. However, it should be noted that it also reported that the vast majority of cases that settled (before the permission at the pre-action stage) did so in favour of claimants.
The final stage, the substantive hearing, enables the Court to assess whether or not the defendant has infringed one or more of the grounds of judicial review. The assessment of the grounds of review will be studied in the next chapters. It should be noted, however, that it rests on the claimant to prove that the defendant has acted unlawfully.
Judicial review is often seen as the major way in which the legality of administrative action is controlled. It is the cornerstone of administrative law. Judicial review is the mechanism by which the courts are able to scrutinise the decision-making processes and the legality of actions or decisions taken by public authorities and officials.
The Rule of law imposes on rulers to respect and act in compliance with law. Accordingly, the rationale behind judicial review stems from the core principles of the Rule of law.
The purpose of judicial review was not to question a decision itself. Courts should not serve as appellate jurisdictions but rather as operators of a review of the legality of decision-making processes.
As a general rule, only public law decisions are amenable to judicial review. Judicial review can be brought against any public body, regardless of their rank in the hierarchy of the administration.
Judicial review also represents a possible course of legal action against decisions of non-governmental bodies exercising public law powers. Powers which are sufficiently public in nature are powers that the administration of the State would have to exercise in the absence of performance by a private body.
A claimant should have sufficient interest in judicial review. This is the traditional locus standi which is one of the first requirements for introducing any legal proceedings. Individuals, groups and public bodies may have sufficient interest to seek judicial review.
The exclusivity principle provides that public law rights should be enforced through judicial review. This principle is subject exception is subject to several exceptions which allows for a flexible application.
In principle, judicial review is not granted if an alternative remedy is available to the claimant.
The time limit to bring a judicial review is 3 months after the grounds to make the claim first arose. Since 2013 and following the 4th Amendment of the Civil Procedure, special rules regarding time limit for judicial review apply to planning decisions (6 weeks) and public procurement (30 days).
The Pre-action protocol requires the claimant to first write to the future defendant identifying the issues at stake in order to try to achieve a settlement. The second phase of the procedure is permission to apply for judicial review.