Judicial review – busting the explosion myth

11 July 2012

A commonly held view is that there has been an explosion of judicial review cases (with an accompanying welcome increase in the holding of public bodies to account or, depending on one’s viewpoint, an unwelcome extension of the reach of the Administrative Court and an increasing burden on public bodies) over the last few years . At first blush this view is supported by the evidence in the recently published “Judicial and Court Statistics 2011”. But to get the true picture the figures need to be unpicked. 

In headline terms there has been a dramatic increase. In 2011 11,200 applications for permission were received. A decade earlier, in 2001, there were only 4,732. However the significant increase has been concentrated in only one type of case. The statistics divide the applications received into three categories: immigration/asylum; criminal; and, “other”. The growth has been in the immigration/asylum category, which has risen from half of the total number of applications in 2001 to over three quarters in 2011. What does this tell us? Simply that, outside the immigration/asylum arena, there has been no explosion of judicial review cases at all but rather a very modest increase – during the decade the total figures for “other” have ranged between a low of 1,685 applications in 2004 to a high of 2,228 in 2006 and with a 2011 figure of 2,213.

This divide can also be seen in the numbers of cases in which permission to bring JR proceedings has been granted or refused. In 2011 there were a total of 1220 grants of permission and 6391 refusals. That refusal rate (which itself is surprisingly high since the test being applied is simply whether a claim is ‘arguable’ and meriting further investigation – the purpose is to weed out claims that are hopeless, frivolous or vexatious) is gradually increasing: in 2007 permission was refused in around 79% of cases considered, in 2011 in around 84%. As between the different types of cases, the immigration/asylum permission refusal rate was around 89% and the “other” cases rate 75%. What might be the explanation? In terms of the difference between the refusal rates, one suspects that it may simply be that some weak asylum challenges are brought as a last and fairly desperate roll of the dice before removal from the UK. On top of that it seems pretty clear that the judges determining permission applications take a rigorous view of what constitutes ‘arguable’.

Slightly surprisingly, this pattern is not mirrored in the outcomes of cases that go to trial. In 2011, 45% of immigration/asylum cases judicial review claims were allowed – but that was the position in only 40% of the “other” cases. The overall success rate for 2011, with claimants winning in a total of 44% of trials, reflects the general historical trend. Only once in the past 5 years, in 2007, have there been more claims allowed than dismissed; and even then it was only by 50.5% to 49.5%.  The balance between cases that win at trial and those that lose does tend to suggest that in practice the system is working properly in the sense that it would appear that it is the finely balanced cases that are being tried.

Where the system may not be working well is in relation to the number of cases waiting to be tried. Judicial review claims must be brought “promptly” and in any event within 3 months of the decision being challenged – and the underlying aim of this limitation period is to promote certainty and avoid delays in administrative action. Although the published statistics do not give information on how long it takes for a judicial review case to come on for trial once issued or once permission has been granted, one crude measure – the gap between the number of case in which permission has been granted in a year and the number of trials – does give cause for concern. In 2011 there were a total of 387 final hearings as opposed to 1220 grants of permission. The number of final hearings was significantly down from the previous 2 years (450 and 474) but the number of grants of permission was significantly up (1,100 and 862). All of which points to there being a rapidly growing and worrying number of cases waiting to be tried.

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On November 20th 2012 Will commented:

Interesting post in light of David Cameron's speech the other day (www.number10.gov.uk/news/speech-to-cbi)

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