Frequently asked questions about Judicial Review

Posted on 14th April 2020

There has been much press attention about Judicial Review claims after the recent actions of Gina Miller; firstly when she sought to challenge the legality of the Secretary of State for Exiting the European Union regarding the withdrawal from the EU without an Act of Parliament; and secondly when she sought to challenge the lawfulness of the proroguing of parliament.

Hodge Jones & Allen Solicitors are regularly instructed in claims for Judicial Review. Here we set out some answers to frequently asked questions.

What is Judicial Review?

Judicial Review is a legal remedy available only in the High Court. It can be used to challenge certain decisions, actions or failures to act of public bodies, such as local authorities in the exercise of their public functions.

It is also a way of compelling a public body to make a decision or to exercise discretion where the law has placed them under a duty to do so.

Judicial Review has certain limits. It is not a further right of appeal nor is it available where the applicant has an alternative remedy available (e.g. statutory review or appeal in the county court), or simply because the applicant has missed the time limit to bring an appeal.

Who can apply for Judicial Review?

Generally, you must have a sufficient interest to apply for Judicial Review. As such, your personal rights must be affected by the decision under challenge – this includes individuals, corporations and partnerships.

Public bodies can also bring a claim for Judicial Review.

Is there a time limit to bring a claim?

An application for Judicial Review should be started no later than three months after the grounds to make the claim first arose.

What is the Queen’s role in proceedings?

The Queen has no involvement in the proceedings though her name will be included in the case title as a matter of formality. For example, The Queen (on the application of the Claimant v Defendant.

Retaining her name in the claim title reflects the historical position where Her Majesty’s Judiciary, on her behalf, acted in a supervisory capacity.

What can the Court do?

Judicial Review is a two-stage process:

  1. Permission in the Administrative Court of the Queen’s Bench Division of the High Court must be sought to make an application for Judicial Review
  2. If permission is granted then the Court will go on to consider the substantive claim. Quite simply, the Court will either allow the claim, or dismiss it.

If the claim is allowed, the claimant will have sought a “remedy”, there are 6 remedies available to a claimant which are set out in CPR Part 54. These are:

  • Mandatory Order: an order compelling a public body to act
  • Quashing Order: an order that sets aside a decision so it has no legal effect
  • Prohibiting Order: an order prohibiting a public body from taking an action
  • Ordinary Declarations: A statement setting out what the law is
  • Declaration of Incompatibility: A declaration to inform Parliament that an aspect of the law is not compatible with the European Convention of Human Rights 1950
  • Injunctions: an order or act, or refrain from acting in a particular way
  • Damages: The Court has the power to award a party damages

Is Legal Aid available to bring a claim?

Legal aid is generally available for Judicial Review claims subject to a number of conditions and discretions of the Legal Aid Agency. The rules are more complicated than the rules for bringing a Judicial Review itself.

The Legal Aid Agency will consider whether the claim is in scope, has merits and whether the claimant is financially eligible.

A proposed claimant ought to contact a firm, without delay, that holds a legal aid contract in the relevant case category who can advise you further, for example, housing, discrimination or a general public law contract. This information can be obtained from the Law Society.

Can my claim be funded by a “no win, no fee agreement”?

This will be down to the individual law firm to decide. However, the reality is that this is very unlikely as the prospects of success are difficult to determine and the remedy sought is entirely at the discretion of the Court.

There are many rules and accompanying guidance when bringing a claim for Judicial Review. It is strongly advisable to seek independent legal advice before commencing any claim.

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