What is a judicial review?

31st August 2023

Judicial review is a court process whereby the courts supervise public and other bodies exercising public functions to ensure that they are lawful and fair.

It applies to actions or decisions that involve a public law element and involves a review of whether that act or decision is valid, flawed or otherwise impaired.

What decisions are open to review?

All bodies exercising functions of a public law nature are potentially susceptible to a challenge by way of judicial review. This includes local authorities and industry regulators, but also extends to non-statutory bodies and private organisations that are authorised to carry out public functions such as private health bodies.

A number of factors are considered when determining whether an act or decision is judicially reviewable. Those include, amongst others, whether there are other appeal processes or rights to challenge the decision and the public importance of the function being performed by the body.

Judicial review claims often involve one of the following arguments:

  • Illegality: where a decision maker misdirects itself in law, exercises a power incorrectly, or improperly exercises a power that it does not have.
  • Irrationality: a decision that “is so unreasonable that no reasonable authority could ever have come to it”. This often means that the claimant must show that the decision challenged is outside the range of reasonable responses of the decision maker.
  • Procedural Impropriety: where the decision maker has failed to comply with any statutory procedures, for example, by not publishing its decision within a certain timeframe, or failing to comply with a public sector equality duty before making a decision.
  • Unfairness: for example, by preventing the person affected by the decision from participating in the decision-making process, or has reached its decision with bias.
  • Legitimate Expectation: if a public authority is expected to act in a certain way due to a clear and unambiguous statement or regular conduct and fails to adhere to the claimant’s expectation.

What remedies are available?

There are three discretionary remedies that are exclusive to judicial review. Those remedies are:

  • 1. a quashing order, to quash the decision in question and refer the matter back to the decision maker to look at it again properly;
  • 2. a prohibiting order, which retains the body being reviewed from acting beyond its powers; and
  • 3. a mandatory order, which requires the public body to carry out its legal duties.

Additionally, the court also has scope to grant general remedies, which may include a declaration to clarify the law or incompatibility with human rights or, an interim injunction. Damages cannot be requested as a sole remedy and are rarely awarded by the courts.

Who can bring a claim for judicial review?

Judicial review is not limited to the party that a decision is against. Any party can instigate the process, provided that they have a “sufficient interest in the matter to which the application relates”, a phrase that is broadly interpreted by the courts.

However, in order to bring a claim for judicial review, a claim must be brought promptly. In most cases this means that a claim must be issued within three months from the date when the grounds first arose, but in others it must be brought within as little as 30 days. It is therefore essential to seek legal advice at the earliest opportunity if you feel that you have been aggrieved by an act or decision.

How does a Judicial Review differ from other types of court proceedings?

There are a number of distinctions between a judicial review and other types of civil claims, including:

  • a pre-action protocol that is exclusive to judicial review proceedings (the “Protocol“) that should be followed by the parties prior to commencing a claim;
  • the potential to depart from the Protocol and commence a claim immediately in very urgent cases (for example, where there is an urgent need for an interim order to compel a public body to act where it has unlawfully refused to do so);
  • the ability for anyone with a “sufficient interest” to instigate a challenge;
  • an early assessment by a judge as to whether the claim raises an arguable case before determining whether permission to proceed to a full hearing is granted;
  • the requirement for the parties to assist the court and to make “full and frank” disclosure of all relevant matters and issues; and
  • witnesses generally do not give oral evidence at hearings.

How can we help?

We have significant experience of advising public sector bodies and private organisations on the strategy and tactical nature of a judicial review claim.

For more information on how to pursue or defend a judicial review, please contact either Al Hussain or Trish D’Souza of our Commercial Disputes Resolution team.

Litigation & Dispute Resolution specialist lawyers

Contact us

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