7. Judicial Review: Procedure and Remedies

Question 1

What type of cases is judicial review available for?

Answer 1

Public Law Cases
- compulsory purchase order over land
- grant of a license for carrying out an activity

Question 2

If a claimant wishes to pursue judicial review against an individual / body, what must this individual / body be?

Answer 2

Public
- Private Bodies must use private law proceedings

Question 3

Test for Public Bodies

Answer 3

Datafin
1. Examine the source of power
- eg. set up by statute or delegated legislation or a reviewable prerogative power
IF NOT
2. Examine the nature of the power
- if the body making the decision is exercising public law functions, may still be a public body

Question 4

Who has standing to bring a judicial review claim?

Answer 4

1. Either, individuals who are PERSONALLY AFFECTED
2. Pressure Groups where the test in Ex Parte World Movement Applies

Question 5

When will a pressure group have sufficient interest to bring a claim under judicial review?

Answer 5

Factors to consider:
1. Doing so will uphold the rule of law
2. the issue is of high importance
3. the likelihood the other challengers are absent
4. the nature of the alleged breach and
5. the role of the pressure group

Question 6

When must an individual bring their judicial review claim? Any exceptions here?

Answer 6

Claim form must be filed within 3 months of the decision to be reviewed
For PLANNING ACTS:
- reduced to 6 weeks
for ACTS WITH OUSTER CLAUSES:
- when clause specifies

Question 7

Can the court extend the deadline for bringing the judicial review claim?

Answer 7

Yes, but there must be good reason

Question 8

Ouster Clauses: Full and Partial

Answer 8

FULL: attempt to allow no right of challenge at all
- Generally will not protect decisions which were never legally valid
PARTIAL: impose restrictions on bringing a challenge
- ie. wrt time limits
- courts tend to be more amenable to these

Question 9

In accordance with the Pre-Action Protocol for Judicial Review, what must the claimant do (once they have decided) as a ‘first step’

Answer 9

Send a letter to the respondent before claim
- if there is no response within 14 days, issue proceedings

Question 10

Stages of a judicial review claim

Answer 10

1. Pre-Action Stage
2. Permission Stage
3. Substantive Stage (hearing before the administrative court)

Question 11

Two Categories of Remedies

Answer 11

1. Prerogative Orders
2. Non-Prerogative Orders

Question 12

Prerogative Orders that the court could order

Answer 12

1. Quashing order
2. Prohibiting order
3. Mandatory Order

Question 13

Non-prerogative orders that the court could grant

Answer 13

1. Declaration of the court
2. Injunction
3. Damages (how they would be awarded in a civil claim), claimant needs private law action

Question 14

When would the court order a quashing order?

Answer 14

When the decision needs to be ‘quashed’, making it null
- decision-maker must begin decision making process again

Question 15

When would a court order a prohibiting order?

Answer 15

Orders a public body to refrain from acting beyond its power

Question 16

When the court order a mandatory order

Answer 16

To compel public bodies to exercise the duties conferred upon them by law

Question 17

Timeline for issuing judicial review claim

Answer 17

CPR, r 54.5 requires that a claim form must be filed promptly, and in any case within a maximum of three months after the ground to make the
claim first arose.

• With effect from 1 July 2013, amendments to r 54.5 reduced the standard time limit for cases within the ‘planning acts’ to six weeks from the date of the decision
• Public procurement cases time limit is 30 days

*not necessarily fine to make application right at the end of the 3 month period

Question 18

Effect of a suspended quashing order

Answer 18

Suspends the effect until a certain date - giving public body the opportunity to right the wrong
- and if they do not, order becomes effective

Question 19

Effect of a prospective effect quashing order

Answer 19

Render the decision void from the time of the judgement onwards (not invalidating past decisions)

Question 20

When might a prospective quashing order be most appropriate

Answer 20

When thousands of small payments have been made
- to render the decision quashed / unlawful would require a lot of administrative inconvenience
- high burden with little benefit if the payments were modest

Question 21

Purpose of a declaration remedy in judicial review

Answer 21

A court order confirming (not changing) the legal position or rights of the parties
- most appropriate when there is no ‘decision’ to be quashed just an error that needs to be corrected

Question 22

When would injunctions be a better remedy than a prohibiting order (JR)

Answer 22

Injunctions can be obtained on a temporary basis prior to the court’s final ruling - could be used if needing to prevent action ‘in the mean time’ such as deportation prior to ruling

Question 23

When can damages be awarded in a judicial review claim

Answer 23

1. claimant is seeking other relief (ie. quashing order)
2. damages COULD have been awarded in a civil claim (meaning private cause of action or breach of a convention right)