Judicial Review

Judicial Review applies to all areas of the law and an action can be raised against a number of bodies/organisations when it comes to a decision which has been made.

Judicial Review is different to an Appeal. An appeal can be defined as a judicial examination by a higher court or tribunal of a decision made by an inferior court or tribunal. To raise an issue by way of an appeal one needs to show that there is an appeals procedure in existence. and there are grounds for appealing. An appeals procedure will usually come in a statutory form. An appeal is a means of challenging a decision by going to a superior body and asking the appellate body to consider whether the decision of the lower body is right or wrong, and if it considers the decision to be wrong then to substitute it with one which in fact is right. It also should be noted that an appeal may be a 1ight which an applicant can exercise. Unlike Judicial Review which is always subject to the discretion of the High Court.

A review of a decision on the other hand can be defined as the High Court examining the decision of a lower body to see if that the decision was fairly made. A review is a means of challenging the way in which the lower body made its decision. Lord Brightman stated that there is a difference between an appeal and a review "Judicial Review as the words imply, is not an appeal from the decision, but a review of the manner in which the decision was made" (per Lord Brightman in Chief Constable of the North Wales Police ·v Evans. [1981) 1 WLR 1155).

If a review is invoked by way of Judicial Review then the High Court will not state whether it agrees or disagrees with the merits of the decision, regardless of its own decision, nor  will not substitute its own views with the decision of the body, but it does have the power to quash decision.

Any applicant who wishes to seek leave to rely on Judicial Review where there is an existing or possible route of recourse available to them will then be subject to the principle of exclusivity of jurisdiction. The principle is founded upon the proposition that where an applicant has an alternative route of redress available to him then this alternative must be utilised. This principle finds its origins in the caselaw which emerged from the latter end of the nineteenth century but most notably from the case of Barraclough v Brown [1897] A.C. 615 (H.L) but it can be circumvented when required.

Pre-Action Protocol

The process of starting any Judicial Review action is to issue a Pre-Action Protocol Letter but this can be dispensed with in urgent circumstances. Once the letter is dispatched there is a 14 day time period in which the opponent has time to respond before any further action can be taken. It may well be the case that the opponent having considered the Pre-Action Protocol Letter agrees to rescind the decision or agree to reconsider the matter again which would negate having to pursue a Judicial Review.

Should the opponent not respond within the 14 days, or they seek to defend the decision, then the next stage would be to issuing proceedings for Judicial Review.

Procedure

An application for Judicial Review is commenced by following CPR Part 54 and it is 2 stage process, the first being that one has to apply for permission and once papers are filed the opponent will file an Acknowledged of Service within 21 days which will be followed by a consideration of the issues on the papers. If refused, then there will be 7 to 9 day period in which one can seek renewal for an oral hearing, otherwise the claim will lapse. If permission is granted, then the 2nd stage will come into play and a substantive hearing will take place either allowing the claim or refusing it.

Time Limits

Although the procedure is very similar for all types of Judicial Review being started there, is a difference when it comes to how long a person/body has in bringing a claim.  

A Judicial Review (also known as Cart JR’S) action against a decision of the Upper Tribunal is 16 days.

A Planning decision the time limit is 6 weeks.

A decision under the Public Contracts Regulations 2915 it is 30 days.

Judicial Review of a Ministers decision in regard to a public inquiry is 14 days unless extended by the court. In other circumstances it is 3 months.  

However, what it common to all is that he time period is from the date of the decision being made, as opposed from being received and if it is not made promptly, it maybe still out of time (R v Cotswold District Council ex parte Barrington Parish Council [1998] 75 P. & C.R. 515).

Late Applications

It is possible to pursue a Judicial Review outside the time limits, but an application for extension needs to be made (CPR 3.1(2)(a). Any extension will require an explanation to the court explaining as to why the application has been made out of time and here the court will look at the seriousness and significance of the breach of non-compliance. The court would conduct an evaluation of the circumstances surrounding the late application before deciding whether to grant an extension for the filing of the application. 

Immigration & Judicial Review

Judicial Review in the context of Immigration law can arise in number of circumstances, the most common being that there is a challenge to the decision of the Secretary of State. Where the decision of the Secretary of State is being challenged, the process requires a Pre-Action Protocol letter to be sent to the Secretary of State (Home Office). This letter gives the Secretary of State 14 days to respond and resolve the matter without moving to the stage of issuing proceedings,  which will incur costs.

If the Secretary of State maintains the decision, then the grounds for Judicial Review will be filed with the Upper Tribunal/ Administrative Court. In urgent cases the 14 day time limit can be dispensed with. The Judicial Review must be filed no later than three months after the grounds upon which the claim is based first arose (CPR Part 54.4). Judicial Review applications can be submitted outside the time limits but a request to seek an extension of time would also need to be attached, but this does not mean the out of time will be accepted, it will depend upon a number of factors.

The Judicial Review claim will then be considered by a Judge who may or may not grant permission to bring the proceedings. If permission is not granted, then you may renew your application, but there is only a 9 day time limit.

Another circumstance where this can arise is where the Upper Tribunal refuses to grant permission to appeal a decision of the First tier Tribunal. These actions are known as ‘Cart’ Judicial reviews, the time period being 16 days.

We can help you deal with the issue of submitting an application for Judicial Review as our barristers have experience of drafting grounds and appearing in Judicial Review proceedings.