Judicial Review

This guide seeks to answer a number of key questions relating to judicial review.

What is judicial review?

Judicial review is the principal mechanism used by the courts to police the exercise of public law functions. This is a constitutionally important aspect of English law. It seeks to ensure that bodies exercising public law functions act lawfully and fairly and do not abuse their powers. 

There are a number of common misconceptions about judicial review that:

• judicial review is not concerned with the merits of decisions. It focuses on the process by which decisions were made and actions taken;
• judicial review is not confined to reviewing the decisions of public bodies. Any party exercising a "public function" may be subject to judicial review proceedings; and
• judicial review is a remedy of last resort. It is only available where all alternative avenues of challenge or appeal have been exhausted.

Why is judicial review relevant to my business?

Judicial review is increasingly used in the commercial sphere as businesses face greater regulation and administrative oversight. In recent years Ashurst has been involved in judicial review proceedings in the healthcare, telecommunications, transport, real estate/planning, energy, financial services, tobacco, media, tax and EU/Competition sectors. 

Businesses may wish to challenge decisions by means of judicial review, intervene in judicial review proceedings which are of relevance to them, or may even be subject to an application for judicial review.

Who may be the subject of a judicial review?

The first question that arises when considering judicial review proceedings is whether the party which has done something which may give rise to a challenge is susceptible to review. 

A "claim for judicial review" in the English court procedural rules (the CPR)) is defined as "a claim to review the lawfulness of an enactment; or a decision, action or failure to act in relation to the exercise of a public function".¹ It is significant that the definition focuses on the nature of the function being performed rather than the body performing it. In reality the category of bodies whose functions may be challenged is constantly evolving.

The courts have adopted a flexible approach to determining whether a body is subject to judicial review. There is no single test.

The following characteristics have been considered relevant to whether an act or function can be reviewed.

• The "but for" test: in other words, whether, but for the existence of a non-statutory body, the functions exercised by such body would inevitably be regulated by statute. Bodies which have been considered amenable to judicial review using this test include the Advertising Standards Authority² and the Takeover Panel.³  However, the Football Association's decisions escaped review as the court held that if the Football Association did not exist, the state would not have found it necessary to perform its functions.⁴
• Statutory "underpinning": where the Government has encouraged the activities of an organisation by providing "underpinning" for its work, or the body was established under the authority of the Government, this can constitute grounds for a body to be considered to be exercising a public function. However, the fact that a body is recognised in legislation (as, for instance, the Football Association was in the Football Spectators Act 1989) is not sufficient to bring its activities within the remit of public functions.
• Extensive or monopolistic powers: the fact that a body exercises extensive or exclusive functions may be a relevant factor. The Takeover Panel was described as having "a giant's strength".⁵ However the exercise of extensive power in the private sector is not necessarily sufficient and the number of people affected or the seriousness of the impact of a decision are not necessarily conclusive.⁶

The courts' application of a flexible approach has resulted in the court being prepared to judicially review decisions that might not appear to be appropriate for judicial review. These include those of:

• the managers of a private psychiatric hospital because there was sufficient statutory underpinning and public interest in the care of patients;⁷
• a registered social landlord who operated within a sector which was permeated by state control and worked side-by-side with public authorities and who received substantial public subsidies;⁸
• an independent school regarding an assisted place;⁹
• a privatised water company exercising statutory powers (although as a commercial organisation it was entitled to act in the interests of its shareholders and not merely in the public good);¹⁰ and
• an airport operator in relation to noise pollution and vibrations felt by local residents.¹¹

Who may apply for judicial review?

An application for judicial review cannot be made unless the court has granted permission. The court will only grant permission if it considers that the applicant has sufficient interest in the matter to which the application relates.¹²

The courts have adopted an increasingly liberal approach to the "sufficient interest test". This recognises that it is desirable for the courts to allow responsible citizens to bring claims for the benefit of the public in appropriate cases. 

However,  the purpose of the test is to ensure that frivolous and vexatious litigation against public bodies is avoided. As such, tThe applicant's interest will be assessed in the context of all factual and legal circumstances in the case, including:

• Strength and importance of the grounds of challenge: in a claim regarding the decision of the UK Government to approve aid for the construction of a dam and hydro-electric power station in Malaysia, the judge said that "the merits of the challenge are an important, if not dominant, factor when considering standing".¹³
• Proximity of the decision to the claimant: a claimant who challenges a decision which interferes directly with their personal right will clearly have standing to bring a claim for judicial review. A direct financial or legal interest in a matter is not required. The treatment of competitors by a public body may also give rise to sufficient interest. In one case, ICI were found to have standing to seek judicial review of the way the Inland Revenue proposed to value business goods used by Shell, Esso and BP.¹⁴ ICI alleged that this would have given its competitors an artificially favourable taxation regime.
• Whether there is an alternative remedy: on numerous occasions the courts have made it clear that, in the absence of exceptional circumstances, permission to proceed with a claim for judicial review will be refused where a claimant has failed to exhaust other possible remedies. Such remedies have included a statutory complaints procedure, the possibility of bringing a private prosecution and other statutory mechanisms.
• Whether the issue at stake is of an "academic" nature: the courts are reluctant to determine a claim where there is no "live" dispute between the parties.¹⁵ For example, a judicial review application challenging a prohibition on collective worship introduced during the Covid-19 pandemic was struck out because the claim had become academic when the prohibition ceased to have effect.¹⁶

What is the role of third parties in judicial review?

Judicial review allows for the involvement of parties other than the claimant and the defendant. This reflects the role of judicial review as a mechanism for public accountability rather than bipartite dispute. There are two principal categories of third party who may participate in judicial review. 

• An "interested party" is "any person (other than the claimant and defendant) who is directly affected by the claim".¹⁷ The "directly affected" person must be "affected without the intervention of any intermediate agency". So, for example, the application of certain tobacco companies to be interested parties in a claim challenging the Legal Aid Board's refusal to grant legal aid for personal injuries actions against them was refused.18 Interested parties are parties to the claim and may therefore appeal the judgment of the court. Interested parties should, however, carefully consider the extent to which they wish to be involved in a judicial review as they may be liable for costs from the point they "take on the burden of defending a claim".¹⁹ There are also limits on the costs a "successful" interested party will be able to claim from the losing party.
• An "intervener" is any person granted permission (a) to file evidence, or (b) to make representations at the hearing of the judicial review.²⁰ Generally the court will grant permission if the interveners, through their expertise, are likely to be able to assist the court in understanding either the legal issues in question or the factual basis of the claim. Recent years have seen an increase in interventions in judicial review. Interveners have included campaign groups, government departments and companies indirectly affected by the outcome of the review. It should be remembered, though, that intervention may have costs consequences for the intervening party.²¹

What can be judicially reviewed?

The most common target for judicial review is a "decision", often communicated in a decision letter. However, the scope of "targets" for judicial review is very broad. There have been successful applications for permission to bring judicial review in respect of primary legislation, subordinate legislation, policies and schemes, proposals, guidance and opinions. 

A claim will often involve several potential connected targets. An example of this would be a planning resolution and consequential planning permission. 

There are certain claims which the courts have traditionally not considered. A claim may fail if it lacks substance or materiality. The courts have always been mindful of the fact that proceedings should be proportionate to the issues involved and the remedy sought. They are disinclined to entertain cases which are based on hypothetical or academic issues.

Additionally, the courts are reluctant to entertain challenges to decisions relating to the internal procedures of the UK Parliament and challenges to decisions of the superior courts of England and Wales (e.g. the High Court, Court of Appeal and Supreme Court).

Challenges to decisions relating to the validity of Acts of Parliament have traditionally been outside the remit of judicial oversight, and since May 2022, the Upper Tribunal's refusal to grant permission to appeal decisions of the First Tribunal can no longer be subject to judicial review.²²

The courts have also shown an unwillingness to pass judgement on certain issues such as national security and economic policy.

What are the grounds for applying for judicial review?

There have traditionally been three grounds for judicial review. These are illegality, irrationality, and procedural impropriety. These categories are not exhaustive or mutually exclusive.

Illegality

The most obvious example of illegality is where a body acts beyond the powers which are prescribed for it. In other words, it acts ultra vires (a concept imported from company law). 

There is a fundamental hierarchy in English law which comprises: (1) primary legislation, (2) subordinate legislation and (3) decision-making. Illegality can occur where any of these is inconsistent with the parameters imposed by a superior source of law. In April 2013, Npower successfully challenged Milton Keynes Council's decision to implement a new planning document that would introduce minimum separation distances between wind turbines and residential properties on the basis that the document conflicted with the existing local plan and national legislation on wind energy.²³

Decisions taken for improper purposes may also be illegal. So, for example, the decision of a local authority not to renew the lease of premises occupied by a firm of solicitors bringing claims against the local authority was invalidated by improper exercise of discretion.²⁴ The local authority's decision was not based on a rational assessment of all relevant considerations. The only consideration which it had regard to was its desire to punish the claimant for the perceived damage to the local authority's financial interest. This constituted an improper purpose. 

A further category of illegality is where a body either abdicates or delegates responsibility for a decision or impermissibly fetters its discretion. It has been accepted that it is a practical necessity of administration that responsibility be devolved (rather than delegated) in certain cases (so, for example, it is permissible for a duly authorised civil servant to exercise a power granted to his Minister).²⁵ This is subject to exceptions, for example, performance of the Secretary of State's function under the Prison Rules 1999 cannot be delegated.²⁶

However, a body may not surrender its decision-making responsibilities to another body. Similarly, a body must not blindly follow policy guidelines where it is required to exercise its discretion; it must maintain an open mind.

Illegality also extends to circumstances where the decision-maker misdirects itself in law. When exercising a discretionary power, a decision-maker may take into account a range of lawful considerations. If the exercise of the discretionary power has been influenced by considerations that cannot lawfully be taken into account, or relevant considerations required to be taken into account have been disregarded, a court will normally find that the power had been exercised illegally.

Irrationality/Unreasonableness

One of the most well-known grounds of challenge is on the basis that a decision is irrational or unreasonable. However, it is difficult to satisfy.

In the leading case, a local authority granted a cinema licence pursuant to legislation which granted it a discretion to impose such conditions as it saw fit.²⁷ A licence was granted subject to the condition that unaccompanied children under fifteen years of age should not be admitted to Sunday performances. It was held that the authority had not acted unreasonably. The court was entitled to investigate only whether the authority had taken into account matters that it ought not to, or had disregarded matters that it ought to have taken into account. 

The courts have raised the bar for irrational or unreasonable behaviour. This is because they do not want to stray into territory which requires them to pass judgement on the merits of decisions rather than the process by which they have been made.

One formulation of the test is that an irrational or unreasonable decision must be "so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it"²⁸. In a recent judicial review, the Secretary of State's refusal to put in place a solution to a specific issue affecting claimants' universal credit awards following an amendment to the Universal Credit Regulations 2013 was deemed "so irrational that no reasonable Secretary of State for Work and Pensions would have struck the balance in that way". ²⁹

There has been criticism of the extreme formulations of the test but it remains the case that it is difficult to bring a successful judicial review on the basis of irrationality or unreasonableness.

Procedural impropriety

English law imposes minimum standards of procedural fairness. This concept is based on the principle of natural justice. The "twin pillars" of procedural impropriety have been described as "the rule against bias" and "the right to be heard".³⁰ The right to be given reasons for a decision is also an integral element of procedural fairness.

While actual bias is relatively rare, it is a conclusive factor in disqualifying a decision-maker. More common is where apparent bias is alleged. The courts have adopted a test of whether there is a "real possibility" of bias. In other words, "whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the [decision] was biased".³¹

Thus, where the chairman of a planning committee had a close relationship with developers, apparent bias was found.³² However, an adjudicator of a construction dispute was not apparently biased in circumstances where he had ruled previously on the dispute and where he had engaged in a telephone conversation with the solicitor of one of the parties.³³

The right to be heard is fundamental in criminal and asylum cases, but also extends to commercial situations. A flawed consultation process restricting the right to be heard is now a common ground for judicial review. In many situations, a decision maker will be required to consult by statute, and any flaw in that process may invalidate the final decision.

In March 2013, HS2 Action Alliance, a not-for-profit organisation working with other action groups opposed to the Government's proposal to build the "High Speed 2" rail link, were successful in their claim that the consultation process for the compensation scheme for blighted properties was flawed.³⁴ The court held that the consultation period was so unfair as to be unlawful. The Government had failed to provide adequate information to consultees on the practical implications of the proposed schemes and had failed to conscientiously consider the claimants' consultation response.

In relation to the right to reasons, there is a large body of case law that supports the existence of this general duty.³⁵ There is an obvious rationale for reasoned decisions: it enables claimants to assess whether a decision has been made for illegal or irrational reasons.

Legitimate expectation

Allied to the ground of procedural impropriety is the notion of "legitimate expectation". This is sometimes considered as a discrete ground for judicial review and arises where a party has been given an expectation that a body will act in a certain way, either because of express statements from the authority, or from prior conduct.

It is likely that for a legitimate expectation to arise there will need to have been a clear promise or evidence of a regular practice,³⁶ reliance and detriment (although this is not a prerequisite).³⁷

The challenge to the Government's decision to scrap the "Building Schools for the Future" programme is an example of a successful claim on the basis of legitimate expectation. The issue in this case was that the Government made its decision without conducting a consultation. The claimant local authorities had committed to building schools under the BSF programme, and successfully argued that they had a legitimate expectation to be consulted before the decision was made.³⁸

The court held that, in view of the fact that the BSF programme had previously been run as a partnership between central and local government, project-specific decisions could not lawfully be made abruptly without prior consultation.

A new ground: application of the Human Rights Act 1998

Detailed analysis of the provisions of the Human Rights Act 1998 is beyond the scope of this Quickguide. However, section 6 (1) of the Act provides that "it is unlawful for a public authority to act in a way which is incompatible with a Convention right". This may provide an independent ground for judicial review. 

For example, it was held that the police acted unlwafully in deciding to cancel a vigil prompted by the murder of Sarah Everard under the Covid-19 regulations on gatherings. It was found that it was not arguable that the Covid-19 regulations were incompatible with Art. 11 ECHR (freedom of assembly and association).³⁹

What remedies are available in judicial review proceedings?

Remedies available

Judicial review is not intended to provide a means for the merits of decisions to be challenged. Because of this the following remedies are available in a judicial review claim:

• mandatory orders requiring the body under review to do something;
• prohibitory orders restraining or preventing the body from doing something; and
• quashing orders setting aside the decision of a body on the basis that it is invalid.⁴⁰

A successful judicial review will often result in a quashing order and an order that the matter be remitted to the decision-making body for reconsideration. But this will not necessarily result in a different outcome from the original decision. Where the original decision was unreasonable or unlawful, then the same outcome may be precluded. However, where there has been a procedural defect it is possible that the same decision will be reached again. In certain instances, a successful judicial review may leave a claimant in a worse position than it was in originally. 

Traditionally, a quashing order has immediate retrospective effect. This means that some of the public body's ongoing actions could also be invalid. This may, in turn, have an effect on third parties acting in good faith. For example, business owners may suddenly be unable to conduct their business as they relied on a certain licence granted by a public authority which was immediately quashed retrospectively. 

Since April 2022,⁴¹ the courts have a number of additional options regarding quashing orders:⁴² 

• suspend a quashing order until a specific date which allows the public body to correct any failure that the court has identified by the end of the suspension period and put in place transitional arrangements, or take any other action considered necessary. The court may consider whether the consequences of an immediate quashing order may lead to economic or financial instability (e.g. resulting from the immediate quashing of a regulation), or the public authority being in a position where it had to pay compensation, or reverse actions taken pursuant to the quashed decision.
• grant a prospective-only quashing order, meaning that the public body will not have to undo any actions already taken and is given the opportunity to re-make its decision in a lawful way.

Prospective-only quashing orders do, however, raise concerns that people will continue to be negatively impacted by a decision, even after a court has found it to be unlawful.

Remedies are discretionary

It is a principle of judicial review that remedies are discretionary. So a claimant may be able to show that a decision-maker has acted improperly but the court may nevertheless decline to grant the remedy sought.

The court may make a declaration or order an injunction where "it would be just and convenient" in "all the circumstances of the case".⁴³

Claim for damages

There is no right in judicial review to claim damages for losses caused by unlawful administrative actions. It is only possible to receive damages in judicial review claims if there is another established cause of action, separate to the ground for judicial review, such as breach of statutory duty, misfeasance in public office or a private action in tort. 

For example, if a decision-maker takes into account an irrelevant consideration, this will likely provide grounds for quashing the decision on the basis of illegality, but it may also create a right to damages for misfeasance in public office if it can be proved that the action complained of was done knowingly or maliciously. Where a separate cause of action accrues, the claim for judicial review may include a claim for damages to avoid the need to bring parallel proceedings.

Even though damages are not available, there may be other financial gain to be had from bringing a judicial review claim. The publicity associated with a judicial review claim will often encourage a public body to retract a decision or settle the dispute.

What are the procedural requirements for judicial review?

The detailed procedure for making a claim for judicial review is beyond the scope of this Quickguide. A number of key points are set out below:

• Judicial review proceedings have two stages. A party must apply for permission (or leave) to the court to proceed with its claim. If permission is granted, the parties then prepare for the substantive hearing of the claim.
• There is a pre-action procedure applicable to judicial review. A claimant must send a Letter before Claim to a potential defendant. The defendant should then respond with a Letter of Response. Failure to comply with the pre-action procedure may have costs consequences.
• All claims for judicial review are brought in the Administrative Court, a division of the High Court and part of the King's Bench Division. However, all planning-related judicial reviews and statutory challenges should be issued in the Planning Court.
• Generally a claim must be brought promptly and, in any event, not later than three months after the grounds to make the claim first arose. Exceptions to that include 30 days for certain procurement decisions and six weeks for planning decisions.
• A claimant is under a duty to make full and frank disclosure of all relevant facts to the court (referred to as the "duty of candour"). This extends to providing the court with information on any impediments to an application for judicial review such as the existence of an alternative remedy or the claimant's delay. The duty of disclosure also extends to the defendant.
• A judge will usually consider the claimant's application for permission on paper. If permission is refused, the claimant has the right to request an oral renewal hearing as long as the court has not refused permission on the basis that the application is "totally without merit".
• If permission is given, the defendant or any other person who has been served with the claim (such as an interested party) and who wishes to contest the claim must file detailed grounds for contesting the claim and any written evidence.
• Because judicial review does not generally require the resolution of factual disputes, disclosure is rarely ordered in judicial review claims.
• A judge will usually consider the substantive aspects of the matter at a hearing. Cross-examination of witnesses is rare at the hearing which is generally taken up with oral argument.
• The courts have exercised a degree of discretion in awarding costs and have not merely followed principles employed in private law. As in other proceedings, however, the general rule is that the loser pays the winner's costs.
• The court has the power to make an order which assures a claimant or defendant at an early stage in the proceedings that either no or limited costs will be ordered against it regardless of the eventual outcome. This is referred to as a judicial review costs capping, or "JRCCO". JRCCOs are ordered in exceptional circumstances.⁴⁴

What are the five key points I should remember about judicial review?

Judicial review: the key questions

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1.  CPR 54.1.

2.  R v Advertising Standards Authority Ltd, ex parte the Insurance Service Plc [1990] 2 Admin LR 77.

3.  R v Panel on Takeovers and Mergers, ex parte Datafin plc [1987] QB 815.

4.  R v Football Association Ltd, ex parte Football League Ltd [1992] 2 All 833.

5.  ex parte Datafin plc.

6.  ex parte Football League Ltd.

7.  R (A) -v- Partnerships in Care Ltd [2002] EWHC 529 (Admin).

8.  R (Weaver) -v- London & Quadrant Housing Trust [2008] EWHC 1377 (Admin).

9.  R -v- Cobham Hall School, ex parte S [1998] ELR 39.

10. R -v- Northumbrian Water Ltd, ex parte Newcastle and Tyneside Health Authority [1999] Env LR 715.

11. R -v- Fairoaks Airport Ltd, ex parte Roads [1999] C.O.D. 168.

12. Section 31(3) of the Senior Courts Act 1981.

13. R -v- Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 All ER 611.

14. R -v- Attorney General, ex parte ICI Plc [1987] 1 C.M.L.R. 72.

15. CPR 54.1.

16. R -v- Legal Aid Board, ex parte Megarry [1994] C.O.D. 468.

17. CPR 54.17.

18. R v Legal Aid Board, ex parte Megarry [1994] C.O.D. 468.

19. R (on the application of Easter) v Mid-Suffolk District Council, [2020] All ER (D) 19 (Nov).

20. CPR 54.17.

21. R -v- Central Criminal Court, ex parte Francis & Francis [1989] AC 346.

22. Reversing the judgment in R (Cart) v The Upper Tribunal) [2011] UKSC 28. A challenge can still be brought where the Upper Tribunal's decision not to grant an appeal gives rise to any question as to whether:

• the Upper Tribunal had a valid application to appeal before it;

• the Upper Tribunal was properly constituted;

• the Upper Tribunal acted in bad faith; and

• the Upper Tribunal's actions constitute fundamental breaches of the principles of natural justice (e.g. the decision was affected by bias or corruption)

23. R (RWE Npower Renewables Ltd) -v- Milton Keynes Council [2013] EWHC 751.

24. R. (on the application of Trafford)-v-Blackpool BC [2014] P.T.S.R. 989

25. Carltona Ltd -v- Commissioner of Works and Others [1943] 2 All ER 560.

26. R (on the application of King) -v- Secretary of State for Justice [2016] A.C. 384

27. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

28. Council of Civil Service Unions -v- Minister for the Civil Service [1985] AC 374.

29. R (Johnson and others) v Secretary of State for Work and Pensions [2020] P.T.S.R. 1872

30. Kanda -v- Government of Malaya [1962] AC 322.

31. Magill -v- Porter [2001] UKHL 67.

32. R (Ghadami) -v- Harlow District Council [2004] EWHC 1883 (Admin) [2005] LGR 24.

33. AMEC Capital Projects Ltd -v- Whitefriars City Estates Ltd [2004] EWHC 393 (TCC).

34. R (Buckinghamshire County Council and Others) -v- Secretary of State for Transport [2013] EWHC 481.

35. North Range Shipping Ltd -v- Seatrans Shipping Corp [2002] EWCA Civ 405; [2002] 1 W.L.R. 2397.

36. Council of Civil Service Unions.

37. United Policyholders Group v Attorney General of Trinidad and Tobago [2016] 1 W.L.R. 3383.

38. Luton Borough Council and others -v- Secretary of State for Education [2011] EWHC 217.

39. Leigh v Commissioner of Police of the Metropolis [2022] 1 W.L.R. 3141

40. Section 31 Senior Courts Act 1981.

41. The Judicial Review and Courts Act 2022 received Royal Assent on 28 April 2022 (available here).

42. Section 29A Senior Courts Act 1981- Explanatory Notes available here.

43. Section 31 Senior Courts Act 1981.

44. The general principles of a JRCCO are that:

(a) the issues raised are in the public interest;

(b) if the order is not made the applicant will probably discontinue the proceedings or cease to participate in the proceedings; and

(c) it would be reasonable to do so.