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Public Law

For generations, Hodge Jones and Allen Solicitors have been at the forefront of the fight to protect the rights of vulnerable individuals and those who have been wronged. With the benefit of our many years of experience and our broad expertise, we act on behalf of those who seek to challenge decisions made by public bodies. Public authorities include housing authorities, government ministers, NHS Trusts, regulatory bodies, chief police constables, prison governors and courts and tribunals. In addition, private bodies exercising public functions will be subject to public law principles, this could include, for example, a private care home.

Decisions of public authorities may be subject to judicial review, the court process for challenging public law decisions. This is a complex process by which a decision is reviewed by a judge to establish whether a public body has complied with the law. Before issuing a claim for judicial review all other remedies (such as any complaints process including any Ombudsman’s scheme) must be exhausted.

Examples of areas subject to public law challenges in which we have expertise

  • Housing – Challenges to local authorities in the provision of accommodation
  • Education – Failure to provide appropriate educational support in accordance with a student’s needs
  • Unlawful Detention – Challenging an individual’s detention either under criminal or immigration powers
  • Immigration – Challenges to decisions not to give entry, leave or naturalisation within the UK
  •  Criminal records checks – Returning false positives on enhanced DBS check
  •  Provision of healthcare – Challenging decisions not to provide individuals with particular medication or treatment to meet their needs

In addition to acting for individual claimants in judicial reviews, we have experience of acting for core participants to public inquiries including the Grenfell Tower Inquiry and the Undercover Policing Inquiry.

We also have expertise in acting for organisations who wish to make third-party interventions in claims for judicial review. Notably, we have acted for Humanists UK in the right to die cases.

What are the principles of public law?

Public law at its heart allows individuals, through the courts, to keep in check the government. in terms of both the executive and the legislature. It is a constitutional guarantee which requires public bodies to act lawfully when making decisions and exercising their functions. As there is no written constitution in England and Wales, the interpretation of individuals’ rights and the acts of public bodies are kept under scrutiny by the Courts through the application of public law principles. The role of the Courts is supervisory, it is not to create new rights, or to take away rights provided by the legislature.

A wide range of bodies and individuals can be subject to challenges by way of judicial review, from, for example, the Prime Minister, to local authorities and private companies exercising public law functions.

In order to bring a claim for judicial review, an individual must demonstrate that they have a legitimate interest (or standing) in the decision under challenge. It is also necessary to demonstrate that any claim is not academic; for example, where a challenge is based upon the failure to follow a correct procedure it is necessary to demonstrate that if the correct procedure is followed a different decision is likely to be made. Claims for judicial review can be brought by organisations as well as individuals.

Traditional grounds for reviewing a public authority’s decision

The traditional grounds for judicial review are that the decision was unlawful, the authority has acted outside its powers or that the decision is so unreasonable as to be irrational. Public law challenges can also be brought for failures of public bodies to comply with the Humans Right Act 1998.

How is public law upheld?

The traditional process for dealing with public law cases is through a claim for judicial review being issued in the High Court. There are other avenues of redress for some cases, and it is important that these are exhausted prior to commencing judicial review proceedings. For instance, where appropriate, complaints about local authorities can often be directed to the Local Government & Social Care Ombudsman who may be able to resolve the issue quickly. Once all complaints avenues have been exhausted the first step is to comply with the Judicial Review Pre-Action protocol.

This involves writing a letter (commonly referred to as a letter before claim) to the authority you wish to challenge, setting out in a certain format the reasons why you are unhappy with their decision and how you would like it changed. The authority then has 14 days in which to reply.

If the response to the letter before claim does not resolve the issue, a claim for judicial review can then be filed with the Administrative Court using the claim form, and a modified Part 8 procedure from the Civil Procedure Rules applying Part 54. The sealed claim form and the relevant documents are sent to the defendant, who has 21 days to respond. A summary defence and acknowledgement of service will be sent by the defendant indicating what their position is. If they continue to defend the matter then the papers will be sent to a judge who will decide whether the case is arguable, if it is, then the matter will be granted permission and listed for the full hearing. If the judge determines that it is not arguable, then it may be possible to make an application for an oral hearing at which the application for permission to be reconsidered.

At the final hearing, your advocate will argue on your behalf why the decision under challenge was unlawful and the appropriate remedy. The defendant will have the opportunity to put their case, and the Court will then determine whether the claim for judicial review should succeed.
If a claim for judicial review is successful the judge may quash the decision, order that it is made in a certain way, award damages, or make a declaration. The role of the courts in a claim for judicial review is supervisory and the courts will very rarely retake the decision for the public body but will direct the public body to act in a certain way.

Which authorities must abide by public law?

All authorities that fall within the definition of being a public authority must ensure their decisions comply with their public law obligations or risk being subject to a claim for judicial review. A helpful guide produced by the Civil Service is the Judge Over Your Shoulder, which gives guidance to public authorities on making lawful decisions.

How can HJA help with claims against public authorities?

We are a specialist firm of solicitors, providing you with access to expert public law solicitors, with considerable experience. They have a proven track record over many years of succeeding with difficult and complex cases.

Our philosophy has always been to enable individuals to have access to justice where otherwise they might be denied it. We strive to right wrongs, achieve justice for all and get the very best result for our clients.

HJA have specialist solicitors to assist you with your public law claims. We are based in London but can assist individuals all over England and Wales.

Judicial Review – FAQs

How long do I have to challenge a decision by way of Judicial Review?
A challenge must be issued at the High Court as soon as reasonably practicable and in any event within three months. As such speed is of the essence, and delay even under the three months needs to be justified.

How long do I have to serve the issued Judicial Review?
The application must be sent to the defendant within seven days and a certificate of service filed with the Court recording the same. Failure to do so will in some cases result in your claim being struck out.

How long does a judicial review take?
The process is generally fairly quick compared to other types of cases, there should be a defence within 21 days, and a decision initially on the papers within a few weeks after that. Thereafter the matter will come back into court and should be dealt with, within six months.

How is a judicial review funded?
There are a number of ways of funding a judicial review. It can be paid for on a private basis and steps can be taken to try to obtain costs protection. You are very unlikely to obtain After the Event Insurance on these types of matters. A common method of funding is by way of legal aid supplied by the Legal Aid Agency. The test for legal aid involves assessment of means and merits, you can be assisted through this process by one of our experienced solicitors. If you do not meet the funding criteria, we can look at other methods of funding such as crowdfunding.

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