judicial review essay uk

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The Ultimate Guide to Judicial Review

• Categories: Litigation
• Vlad Krupski
• August 4, 2023

Scope and application of judicial review

Judicial review is the process by which courts exercise supervisory jurisdiction over the performance of public functions by public authorities. CPR 54.1 states that

“application for judicial review” means a request to review the lawfulness of

• of a legal act or
• decision, act or omission in connection with the exercise of a public function”.

Judicial review proceedings in England and Wales usually occur in the Administrative Court, part of the Royal Bench Division of the High Court. The Upper Tribunal also has limited judicial review jurisdiction.

The court may make the following orders following the hearing:

• a quashing order
• a prohibitory order
• a mandatory order
• in specified circumstances, a declaration or injunction, or an award of damages

Judicial review does not ultimately change the decision. This is because the court cannot assume the powers of state authorities. The claimant has the right to apply for damages during the judicial review. This must be clearly stated in the statement of claim.

Grounds for Judicial Review

Lord Diplock classified the basic principles underlying judicial review . These are interrelated principles that include legality, reasonableness and fairness. They have been subdivided for efficiency as follows:

• illegality/error of law – A public authority must understand and comply with the law governing its actions. It must act following the letter of the law strictly follow it and use it by its main purpose and its content.
• irrationality/unreasonableness – also known as “Wednesbury unreasonableness”, after the seminal case on this issue, it became one of the grounds for judicial review. It is quite difficult and complex to prove and consists in proving by the plaintiff that the decision is so unclear that no human being could have made it. Usually, the difficulty and reluctance to intervene in this case will be since the court is rather cautious about issues of specialised knowledge and policy, as it is at the interface between judicial activity and interference in the affairs of state bodies.
• Procedural impropriety/unfairness – also known as “natural justice”, which is procedural fairness depending on all the case circumstances. The basis of procedural justice is the right to be heard without bias and discrimination.
• breach of legitimate expectation – expressed in procedural impropriety- now constitutes a separate ground for judicial review. This principle may occur when a public authority has promised or, in accordance with clear policy and practice, should have obtained one result. Still, it was not obtained due to unreasonable grounds.

Judicial review procedure

The main rules governing the judicial review process are:

1) section 31 of the Senior Courts Act 1981 (SCA 1981) (as amended by Part 4 of the Criminal Justice and Courts Act 2015 (CJCA 2015))

2) CPR 54 (which modifies CPR 8)

3) CPR PD 54A

Other CPR provisions relating to court costs and certain limitations on the court’s powers in these cases may also apply.

The court must first consider several issues to allow the case to proceed to trial, namely:

1)      whether the case is subject to judicial review

2)      whether the relevant alternative remedies have been exhausted

3)      whether the parties have tried to resolve the dispute by other means

4)      whether there is still time to file a claim for judicial review.

There is also a court protocol for judicial review, which aims to help the parties

–          understand and identify the issues, exchange information and documents

–          make an informed decision on whether and how to proceed

–          try to settle the dispute or limit the scope of the issues

–          avoid unnecessary litigation/costs

–          to facilitate efficient management of the proceedings if litigation is unavoidable.

The pre-trial review protocol sets out the standard of procedure that must be followed before an application for judicial review can be made. Except in extremely urgent cases, a potential applicant for judicial review should send a letter as soon as possible after the grounds for such review arise, and the respondent should respond within 14 days.

Regarding the decision to follow the protocol, claimants must determine whether to use it, depending on the circumstances. However, if they choose to use the protocol, the court generally expects the parties to comply with its discovery requirements in a timely manner.

According to paragraph 54.5 of the CPC, applications for judicial review must be filed immediately and, in any event, no later than three months from the date when the grounds for such an application arose (except certain situations where particular deadlines apply, such as in planning and public procurement). The assessment of the timeliness of a claim depends on all the circumstances. Still, in general, the deadlines are strictly enforced, and compliance with them usually results in a refusal to grant the permit. Attempts to take measures for pre-trial resolution, including alternative dispute resolution methods, are not usually considered sufficient grounds for extending the time limits.

Claimants must serve the defendants and third parties with the claim form within 7 days of the issuance of the response under CPR 54.7. Confirmation of service must be sent within 21 days. Failure to comply with the relevant time limits will result in sanctions against the claimant.

Under SCA 1981, s 31, the court may dismiss a claim if it is highly probable that the result for the claimant would have been substantially the same even if the challenged conduct had not occurred. However, there are cases where reasons of exceptional public interest may oblige the court to continue the proceedings.

Under CPR 54.11A, an oral hearing may be held to decide whether to grant judicial review if it is necessary to consider arguments on the issue.

If the court grants permission for judicial review , it may also make case management directions under CPR 54.10(1) for the further progress of the case. The defendants have 35 days from the date of service of the order granting leave to review and file a statement of defence and evidence supporting their position.

Evidence, disclosure and duty of candour in judicial review proceedings .

An application for judicial review must have some grounds on which the court will already make a decision. Practice Direction 54A on judicial review states that disclosure is not required unless the court decides otherwise. Disclosure may be used only in certain cases to clarify the full picture when the facts are inconsistent and incomplete.

The principle of candour is also important. It consists in providing reliable information and facilitating a fair decision to the maximum extent possible. This obligation is imposed on all parties, but special attention is paid to the defendant – the public authority.

Costs in Judicial Review proceedings

Court costs are one of the key points to pay attention to. Thus, the general rule associated with the costs of judicial review is that they are incurred after the fact. However, due to the peculiarities of judicial review, the plaintiff has additional benefits in the form of limitation or cancellation of court costs.

The court practice has shown the importance of regulating the issue of costs related to this type of case, as the defendant is a state body created to satisfy the needs of people. Thus, it has become important to regulate the issue of limiting or cancelling the plaintiff’s expenses in case of losing the case.

The proposed way to overcome this problem in The CJCA 2015 is currently quite effective. The most important for us are ss 87-90, which regulate intervener’s costs and costs capping.

According to the amendments made by this subsequent law, instead of PCO (previously protective cost orders), there is JRCCO (judicial review cost capping orders). The essence of a JRCCO is the simultaneous issuance of an order to limit or cancel the amount to be paid by the plaintiff in the event of a loss and a stagnation order against the defendant in the event of a win.

JRCCO s can be filed only by the plaintiff, due to its less favourable position than the state body, based on the latter’s nature.

Written by Vlad Krupski

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Foundations Of Judicial Review Essay Notes And Plans Notes

Updated foundations of judicial review essay notes and plans notes.

Administrative Law

Administrative Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the major LLB aspects and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Canada, Hong Kong or Malaysia (University of London). These notes were formed directly from a reading of the cases and main texts and are vigorous, concise and very well written. Everything is conveniently split up by topic as you can see by th...

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Joseph argues that: ‘The debate over [the constitutional foundations of] judicial review portends a crisis of legitimacy over the Courts' powers to invalidate decisions of democratically empowered decision-makers. But it is a crisis that is difficult to fathom. Principles of judicial review are, as they have always been, sourced in the common law.’ Is this true?

Introduction (Whole section here is question-specific)

Joseph’s statement is underlined by a number of assertions which need to be addressed carefully in order to express disagreement with him:

Assertion #1 : The principles of judicial review (JR) are based on the common law; and

Assertion #2 : The legitimacy of the courts in invalidating decisions of democratically empowered decision-makers is unaffected by those principles being based on the common law.

It will be argued, contrary to these assertions that:

In dealing with assertion #1 , the principles of judicial review are not so easily ascribable to the common law both in doctrine and in fact; and

In dealing with assertion #2 , even if the principles of JR can be said to be based in the common law, the legitimacy of the court, although sustainable when invalidating SOME types of decisions and/or decision-makers, it cannot account for the entire field of JR as Parliamentary sovereignty is undermined by statutory powers are concerned.

Common Law Theory, its Strengths, and its Problems

OUTLINE: Common Law Theory

Briefly, Craig [(1999) PL] , as one of the prominent common law theorists, argues that the basis on which the courts can invalidate decisions is based in what Galligan [(1982) OJLS] calls the “common law standards of good administration” .

On their view, where courts invalidate decisions of public bodies by applying these “standards of good administration”, they are enforcing their own judicial will and standards, not those of Parliament.

STRENGTH #1: Factual Honesty

Galligan’s “standards of good administration” would include principles such as:

The requirement of fairness (as seen in Cooper v Wandsworth , Osborn v Parole Board , amongst many other cases);

The rule against bias (as seen in Porter v Magill , Pinochet (No 2) , amongst many other cases);

The protection of legitimate expectations (as seen in MFK Understanding , ex parte Unilever , ex parte Coughlan , amongst many other cases);

Prohibitions against fettering of discretion (in the numerous forms seen in British Oxygen v Minister , ex parte Kynoch , amongst many other cases); and

Reasonableness ( Wednesbury v Associated Picture ).

These principles, as Laws [(1995) PL] points out, and opposing author Forsyth [(2000) Judicial Review and the Constitution] concedes, are creations of the common law and judicial innovation.

This lends common law theory factual honesty (which Laws (1995) and Craig [(1998) CLJ] argue the modified ultra vires theory lacks – discussed below ) and internal coherence as it is clear that Parliament does not (or if it does, rarely ever) explicitly legislates that the above-mentioned principles are to be applicable in the field of administrative law. In fact, in Wilkinson v Barking , the court even noted that unless it is clear that Parliament intended to displace the principles of procedural fairness, the courts would be reluctant to disapply them.

As such, there is some truth to Joseph’s assertion that the principles of JR are “sourced in the common law”, in the sense that they originate therefrom. However, to sustain the assertion that the common law forms the constitutional foundation of JR, we need to look deeper.

STRENGTH #2: Accounting for Non-Statutory Powers and Bodies

Beyond factual honesty, the common law also seems to be a legitimate foundation for the courts’ application of its standards of good administration insofar as non-statutory powers and bodies are concerned.

In Lewis v AG of Jamaica , the Privy Council enforced the principles of natural justice against the Mercy Committee in the exercise of their prerogative powers of mercy.

Forsyth [(1996) CLJ] himself noted that the ultra vires doctrine (discussed below) was “never [meant to be] the sole justification for judicial review” , and that the common law can legitimately form the basis of JR of non-statutory powers and bodies.

As seen in ex parte Bentley , the Home Secretary in the UK (typically considered a “democratically empowered decision-maker”—although this will be explored more thoroughly later) exercises the mercy prerogative.

The fact that his decisions, given their prerogative nature, can be subject to JR purely on the basis of the common law (even on Forsyth’s account) without calling into question the courts’ legitimacy to do so, gives some credit to Joseph’s support of the common law as the foundation of JR.

However, this is only observable with regards to non-statutory powers of democratically empowered decision-makers, or the powers of non-democratically empowered decision-makers (such as that seen in ex parte Datafin ).

Where statute comes into play, the common law theory runs into contravening the doctrine of Parliamentary Sovereignty (PS).

WEAKNESS: Misalignment with Parliamentary Sovereignty

Forsyth [(2000) Judicial Review and the Constitution] put forth a convincing case (expanding on the case he built in [(1996) CLJ] ) that common law theorists (or “weak critics” as he called them), even if they do not intend to do so, necessarily undermine PS. Allan [(2002) CLJ] , despite being in an entirely different camp, also makes the same point.

Forsyth (2000) puts forward the following two propositions:

Common law theorists propose that the common law will require decision-makers to apply the standards of good administration unless Parliament clearly intends otherwise.

Ultra vires theorists propose that unless Parliament clearly intends otherwise, it is presumed that Parliament intended for the decision-makers to abide by the common law standards of good administration.

Although similar,...

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AQA 25 Mark essay  Impact of the Judiciary 2022 Paper 1

‘the uk judiciary has had an increasingly significant impact upon the working of the executive and parliament since 1997.’ analyse and evaluate this statement. [25 marks] .

Analysis and evaluation of the increasing significance of judicial review in the UK and the impact that it has had upon the working of the executive and Parliament since 1997, with analysis supported by examples such as R (Miller) v Secretary of State for Exiting the European Union, 2017

 • analysis and evaluation of the impact of the Constitutional Reform Act 2005, with analysis supported by examples such as changes to the role of the Lord Chancellor. Labour Reforms 1997-2010  

 • analysis and evaluation of the extent to which judicial independence and the separation of powers have been enhanced by measures such as the Judicial Appointments Commission and the location of the court in a separate building

 • analysis and evaluation of the impact of the Human Rights Act 1998 , which has allowed senior judges to directly question statute laws, executive actions and government policy within UK courts. Analysis will be supported by examples:

How well are Rights protected in the UK?

  The Judicial Review and Courts Act 2022  

Judicial Review Cases as examples

• analysis and evaluation of the impact of Brexit which removed the precedent of EU law over UK law

 • analysis and evaluation of the extent to which the executive branch and Parliament consider potential conflicts in the courts when drafting legislation (eg the role of Parliament’s Joint Committee on Human Rights) 

• analysis and evaluation of allegations and criticisms of growing judicial activism in recent years. However, judges do not have the power to enact legislation or policy, unlike Parliament and the executive branches of government. 

Synoptic links may be found in areas such as the executive, Parliament, US Supreme Court, rights, US Constitution and the Bill of Rights, the EU. Any response that does not include synoptic points cannot achieve above level 4. 

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8 The Separation of Powers and Judicial Review

• Published: December 1994
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Although individual rights in public law must be sharply distinguished from private law rights, their content is closely related to the nature and scope of the powers and duties entrusted to public officials and agencies. Judicial review of administrative action exists to safeguard legality. The rule of law requires that public authorities act only within the limits of their powers, properly understood. But a court may not interfere with action lawfully taken within the jurisdiction of a public authority. It is usually said that the court is concerned with the lawfulness of administrative decisions, but not with their merits. The virtue of judicial restraint must depend on the nature of the illegality alleged. Likewise, the distinction between appeal and review must be an elastic one, permitting more intensive scrutiny of executive action which threatens basic liberties than might be appropriate in other cases.

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UK Report: The Effectiveness of Judicial Review of Competition Law Enforcement

Forthcoming in: Rodger and Brook et al (eds.), Judicial Review of Competition Law Enforcement in the EU Member States and the UK (Kluwer 2024)

40 Pages Posted: 7 Jun 2024

University of Leeds

Barry James Rodger

University of Strathclyde - School of Law

Date Written: June 05, 2024

This chapter provides a quantitative and qualitative analysis of the judicial review of EU and national competition law enforcement in the UK. It is based on a unique database of all competition law judicial review proceedings in the UK, rendered between May 2004 and 2021. This chapter first introduces the history of competition law in the UK, the development of the enforcement institutions and judicial review over the years, and the enforcement practice. Next, it offers rich quantitative and qualitative insights into the effectiveness and intensity of the review of the UK Competition Appeal Tribunal (CAT) and the Court of Appeal, including the total number of appeals, their success rates, the grounds of review, the courts' interventions in setting the fines, the types of competition law infringement that have been subject to review, and the role of third parties in competition law proceedings. The chapter also discusses the alignment of UK competition law with EU law and the possible effects of Brexit.

Keywords: Competition law, Competition Act 1998, Judicial review, EU Competition Law, UK Competition Law

Suggested Citation: Suggested Citation

Or Brook (Contact Author)

University of leeds ( email ).

Leeds, LS2 9JT United Kingdom

HOME PAGE: http://https://essl.leeds.ac.uk/law/staff/1069/dr-or-brook

University of Strathclyde - School of Law ( email )

Lord Hope Building John Anderson Campus 141 St. James' Rd Glasgow G4 0LT, Scotland G4 0LT United Kingdom

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Comparative Political Economy: Regulation eJournal

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• Civil justice statistics quarterly: January to March 2024
• Ministry of Justice

Judicial Review Data Visualisation Tool

Published 6 June 2024

Applies to England and Wales

© Crown copyright 2024

This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open-government-licence/version/3 or write to the Information Policy Team, The National Archives, Kew, London TW9 4DU, or email: [email protected] .

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This publication is available at https://www.gov.uk/government/statistics/civil-justice-statistics-quarterly-january-to-march-2024/judicial-review-data-visualisation-tool

1. Introduction

The Judicial Review interactive data tool has been developed as part of wider work on improving data visualisation and accessibility. The tool is designed to provide further breakdown to the analysis in the publication and sits on top of the data tables and associated csv files. The tool provides users with the capability to:

interrogate the published information easily at a lower level of detail, e.g. by specific topics;

access and produce a range of charts specific to their user requirements

visualise the case progression of judicial reviews through the sankey diagram

2. The data visualisation tool

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https://judicial-reviews-app.apps.live.cloud-platform.service.justice.gov.uk/

3. How to send us your feedback

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Email: [email protected]

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