Judicial Review
This factsheet is designed to explain how you can challenge decisions made by public bodies
by Judicial Review, the grounds for a challenge and the remedies available to individuals.
What is Judicial Review?
• Procedural unfairness
Judicial Review is a process that allows individuals or organisations to
challenge the lawfulness of policies, decisions or actions made by a
public body or those exercising a public function. For example, the
decision to withdraw or cut funding to a care package for a disabled
person or vulnerable adult without reason may be open to challenge by
Judicial Review.
• Breach of human rights
On an application for Judicial Review the Administrative Court will
conduct a review of the process by which the decision was made to
determine whether it was valid.
Examples of bodies that can be judicially reviewed:
Irrationality / unreasonableness
If a decision is so irrational or outrageous such that no reasonable body
would have made it, it can be challenged by Judicial Review.
In assessing the reasonableness of a decision, the courts will look at
whether the public body took into account irrelevant matters or failed
to consider something it should have.
Illegality
A decision can be challenged as unlawful or illegal if it can be shown
that a public body has acted ultra vires, which is by exercising a power
it does not have, or by exercising a power incorrectly. For example, if a
public body has made a decision that it has no power to make, a Judicial
Review of that decision may be appropriate.
• Maintained schools and governing bodies
• Regulatory or supervising bodies
• Local authorities
• NHS trusts
A public body may also act illegally if it incorrectly interprets the law or
fails to apply the law properly, such as by failing to adhere to a specific
requirement under a relevant statute.
• Chief constables
• Prison governors
• Government departments
Procedural unfairness
• Some tribunals
Grounds for Judicial Review
Public bodies have a duty to act fairly and in accordance with the rules of
natural justice. For example, it is expected that similar cases will be dealt
with in the same way.
Judicial Review is not an appeals process and decisions cannot be
challenged just because you do not agree with them.
If a decision is made that appears to be biased or unfair it is open to
challenge by Judicial Review.
A challenge against a public body can be made on any of the
following grounds:
Breach of human rights
• Coroners’ courts
A public body will be acting unlawfully if it breaches any of the rights
contained in the Human Rights Act 1998.
• Irrationality / unreasonableness
• Illegality
Southampton
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Lymington
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Richmond
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London
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Remedies available
Urgent cases
The appropriate remedy will depend on the particular circumstances of
each case, but there are six forms of relief that can be requested:
There are guidelines for Judicial Review cases which require urgent
attention.
• Quashing order
The pre-action protocol can be dispensed with but only if there are
good reasons for doing so. It is still good practice to notify the public
body that you are making a Judicial Review application and explain
your reasons for doing so. Usually this is done by sending them a copy
of the claim form.
• Prohibiting order
• Mandatory order
• A declaration
• A stay or injunction
• Damages
A quashing order is usually requested to quash the decision in question
together with a mandatory order directing the public body to re-take
the decision again.
A declaration can be issued to set out the legal position or rights of the
parties. It will usually state what the public body got wrong in making
the decision initially and they will be expected to take necessary steps
to act in accordance with the declaration.
In addition, a court has powers to grant interim relief, requiring
something to happen or not to happen pending a final decision. For
example, if the claim is around the suitability of a care package, the
court could order that a specific provision be put in place pending the
final outcome of the Judicial Review proceedings.
Procedures and time limits
Any application for a Judicial Review must be brought promptly and
no later than three months of the date of the decision that is being
challenged. This means the claim form must be issued within this
time limit.
Judicial Review is a last resort. The court will expect you to have
exhausted the local appeals or complaint processes first, before
making your claim.
There is a pre-action protocol for Judicial Review which should be
followed prior to the issue of the claim form. The aim is to avoid
unnecessary litigation by setting out steps that ought to be followed
by both parties. For example, the person challenging the decision
should send a letter of claim to the public body setting out the issues
in dispute, giving the public body 14 days to reply. If the matter can be
resolved at this stage then there is no need to issue formal proceedings.
If there is no response to the letter of claim from the public body, or
the response is not sufficient, an application can be made to the court.
On receipt of a claim form for Judicial Review, a judge will need to
grant “permission” for the claimant to proceed. This means that a
judge will determine whether there is any reasonable grounds for a
Judicial Review. A substantive hearing can only take place if permission
is granted.
Legal representation
We are a leading law firm offering a full range of commercial and
private client services with expertise in:
•Education
• Health and social care
• Court of Protection matters
•Personal injury and clinical
negligence claims
• Disability discrimination
• Healthcare law
• Tax and trusts
•Employment
• Housing issues
You will also need to tell the court why the matter is urgent. If
emergency provisions are required, you can apply to the court for
interim relief pending the outcome of the proceedings.
Children / minors
In cases involving a child or a young person under the age of 18 an
adult will have to act as a Litigation Friend to bring the action on the
minor’s behalf.
Timescale
Judicial Review cases will be dealt with in accordance with the court
timetable. Unless an urgent application has been made it may take
some time for a hearing date to be fixed depending on the availability
at court.
Negotiations with the public body can take place while you are
waiting for a hearing date. Most cases are capable of settling without
the need for a formal hearing.
Funding your case
If you have been directly affected by the decision you are challenging,
or represent someone who was, it may be possible to get public
funding (Legal Aid). A detailed explanation on public funding and how
you can qualify is outside the scope of this factsheet, but if you think
you might be eligible please contact us for more information.
Judicial Review is a complex area of law and there are strict time limits
in place. Legal representation will ensure that you are properly guided
through the process.
Moore Blatch is able to provide full support and assistance to
individuals who wish to challenge a decision made by a public body
by way of Judicial Review. We have particular expertise in challenging
decisions made by Local Authorities or Clinical Commissioning
Groups in relation to health or social care provisions.
If you are seeking to challenge a decision made by a public body then
please visit our community care pages at www.mooreblatch.com. We
will provide an initial assessment as to the likelihood of a successful
claim entirely free of charge.
Alternatively, for more information about
Judicial Reviews, please contact us on 023 8071 8000
or email [email protected]
www.mooreblatch.com
The content in this factsheet has been produced by Moore Blatch LLP. This factsheet is intended to set out general information; it is not intended to be a replacement for detailed legal advice.
To the extent permitted by law, Moore Blatch LLP will not be liable by reason of breach of contract, negligence or otherwise, for any loss or consequential loss occasioned to any person acting,
omitting to act, or refraining from acting in reliance upon this material, or arising from or connected with any error or omission in this material. Consequential loss means any loss of antic
ipated profits, damage to reputation or goodwill, loss of expected future business, damages, costs or expenses payable to any third party or any other indirect losses. The copyright in this
material belongs to Moore Blatch LLP and it may not be reproduced in any form (in whole or in part) without the prior permission of Moore Blatch LLP. Authorised and regulated by the
Solicitors Regulation Authority.
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