Case Note – challenging the Court’s jurisdiction in judicial review proceedings: R (Girgis) v Joint Committee on Intercollegiate Examinations  EWHC 2256 (Admin)
Legal 500 UK 2021
If you are thinking about bringing a judicial review claim, or are a public body facing the threat of one, getting specialist judicial review solicitors involved at the outset can make all the difference.
Known for our strength in judicial review litigation and our incisive and pragmatic advice, in many leading cases, and listed in The Lawyer's Top 20 Cases of 2015, for acting on behalf of the Financial Conduct Authority, in a ground breaking challenge by Rosneft to sanctions imposed against Russia.
As one of the few dedicated public law teams in the country, we know the ins and outs of bringing or defending a claim. We work with you from the beginning to quickly identify the core issues and gain an insight into your key concerns, allowing us to deliver clear, focussed and commercially driven advice and management of your case.
We respect your constraints and the importance of the right presentation and tone, as well as appreciating the pressure a legal claim can put on already busy staff.
The team is led by Adam Chapman, formerly head of one of the judicial review litigation teams at the Treasury Solicitor’s Department, and who continues to be consistently recognised as a leader in this field.
We understand that decisions made by government and public bodies can have far reaching and serious commercial, financial, organisational or personal consequences. It is vital they are correctly made.
When things go wrong, we can help you consider a judicial review claim or statutory challenge to ensure that the decisions that matter most to you are fair, lawful and rational, and do not infringe on EU treaty or human rights.
Judicial review will always involve at least one claimant and one defendant public body. It may also involve interested parties. An interested party is any person (including a company or partnership), other than a claimant or defendant, who is directly affected by the claim.
It is also open to any other person to apply to the court for permission to give evidence or make submissions .Those granted permission to do so are known as interveners.
A letter before claim is usually sent by the claimant to the defendant and any interested parties. If no response is received or the parties cannot resolve the dispute, then the claimant may commence litigation.
Judicial review proceedings are divided into two stages (the ‘permission stage’ and the ‘substantive stage’).
First the claimant must apply to the court for permission to apply for judicial review. Other parties will usually file papers supporting or opposing the application. The court will then review the papers and grant permission if there is an arguable case that a ground for judicial review exists and merits further investigation.
If permission is refused, there may be scope for reconsideration at an oral hearing. If permission is granted, the substantive claim (or permitted parts of it) will proceed to the second stage of a full public hearing in the High Court.
In rare cases, the two stages may be dealt with together at a full public ‘rolled-up’ hearing.
There are many possible grounds for judicial review. The main categories are illegality, irrationality and procedural impropriety.
Illegality is essentially where a public authority acts outside the scope of its powers or duties, or fails to comply with them. For example, section 6 of the Human Rights Act 1998 makes it unlawful for a public authority to act incompatibly with rights under the European Convention on Human Rights.
Irrationality takes many forms. It can range from taking account of irrelevant considerations to acting in an outrageous or illogical manner beyond the range of responses open to a reasonable decision-maker.
Procedural impropriety means failing to follow the required process, and can include failures to consult, act within a reasonable time or give reasons – as well as alleging that a decision is tainted by bias.
Judicial review proceedings are intended to quickly resolve challenges that generate uncertainty for public officials and bodies about whether they can safely proceed with administrative action.
Claimants are generally obliged to file claim forms promptly (basically as soon as they can) and, in any event, not later than 3 months after the grounds to make the claim first arose.
Failure to act promptly may seriously prejudice or defeat a claim.
It is difficult to predict how long proceedings will take once a claim has been issued. Most judicial reviews are resolved in the High Court within around 9 months but timescales for urgent matters can be much shorter.
The timing is generally dictated by the resources of the High Court, although it is open to either party to seek to have the claim dealt with expeditiously. Depending on the outcome, there may be an appeal.
Where a claimant shows that a defendant has acted unlawfully the court may decide to grant a ‘quashing order’, confirming that the challenged decision has no lawful force and no legal effect.
Other potential remedies include the court deciding to compel a public body to act in a particular way or to take no action, or the court declaring what the law is on a particular point. Damages are only occasionally available.
We only take on privately funded judicial review cases and are unable to represent parties funded by legal aid.
The overall cost of judicial review will depend, among other things, on the nature, size and urgency of the case, alongside the strategy adopted and factors beyond a party’s control. In general, the unsuccessful party will be ordered to pay most of the costs of the successful party.
In limited circumstances, including environmental cases, the contribution that each unsuccessful party can be ordered to pay towards a successful party’s costs may be capped at a relatively low level by the court.
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The Administrative Court of England & Wales has recently considered a challenge to its jurisdiction to hear a judicial review claim on the basis (asserted by the defendant) that the claim should be heard at the Court of Session in Scotland. As explained below, the challenge was unsuccessful, but the case is interesting not just because of the Court’s conclusion on the substantive issue but also because of His Honour Judge Simon’s approach to the “technical” (procedural) issues the case gave rise to.
Earlier this year, changes to Practice Direction 54A (covering judicial review) and 54B (covering urgent applications) came into effect. This blog will consider the impact that the changes have had on the procedure for judicial review, before turning to a recent example of the perils of failing to follow the rules.
The Judicial Review and Courts Bill contains a new ‘ouster clause’ designed to prevent judicial review of the Upper Tribunal’s decisions on certain applications for permission to appeal against decisions of the First-Tier Tribunal. This blog explores why drafting legislation to restrict judicial review is so difficult.
R (A) v Secretary of State for the Home Department  UKSC 37 and R (BF (Eritrea) v Secretary of State for the Home Department  UKSC 38
Two linked Supreme Court judgments provide a reminder to claimants that challenges to policies should focus on whether the policies authorise or approve violations of the law. The court acknowledges that policies are issued to promote practical objectives and the standards set for reviewing them must not be unduly demanding.
Long awaited reforms to judicial review were revealed yesterday by Robert Buckland in his Judicial Review and Courts Bill. Thankfully the proposals to suspend quashing orders and limit their retrospective effect retain all-important judicial discretion and, at face value, are milder than feared. However, the decision to exclude the review of Upper Tribunal permission-to-appeal decisions (so called “Cart JRs”) is more troubling, marking the return of ouster clauses and possibly setting the groundwork for the removal of the jurisdiction of the Administrative Court in future legislation.
On 18 March 2021 the government published the Independent Review of Administrative Law (IRAL) and began a public consultation on reforms to judicial review. This blog provides some initial thoughts on these important developments. For background on the IRAL see our introductory blog here.
This morning (12 February 2021) the UK Supreme Court handed down judgment in Okpabi & others v Royal Dutch Shell (“Okpabi”), a case concerning mass oil pollution in the Niger Delta. Judgment is in favour of the claimants, communities representing over 40,000 affected citizens of Nigeria, whose claim against oil conglomerate Shell and its Nigerian subsidiary can now be heard in the English courts.
On 31 July 2020 the Government launched an Independent Review of Administrative Law (‘the Review’). The panel of lawyers and academics, chaired by former Minister of State for Civil Justice Lord Edward Faulks QC (‘the Panel’), has been tasked with examining the potential need for reform of Judicial Review and to ‘consider whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government.’
The Bloomsbury Institute was fighting to survive financially after the Office for Students refused its application for registration. It brought a judicial review challenge which revealed that an unpublished policy had been followed. The policy had been formulated by an official who did not have the power to make the relevant decisions.
In a February 2019 Advisory Opinion, the International Court of Justice stated that, under international law, the decolonisation of Mauritius by the UK has never been lawfully completed and the UK must therefore “end its administration” of the Chagos islands.
Interpreting legislation is both an art and a science. This recent Court of Appeal case illustrates how judges do it in the context of the statutory scheme used to introduce controversial voter ID pilot schemes.
Even if it is generally more straightforward for the claimant to be a legal person, this judgment may give confidence to the likes of amateur sports clubs and campaigning pressure groups considering challenging the exercise of public power.
Friday 13 December 2019 will be remembered as the day the Conservatives won their biggest majority since the 1980s and finally obtained the dominance required to complete the Article 50 process and take the UK out of the EU.
Everyone has an opinion on yesterday’s decision of the UK Supreme Court. Boris Johnson said on television that he profoundly disagreed with it. Jacob Rees-Mogg reportedly called it a ‘constitutional coup’ on a cabinet conference call. Former Lord Chancellor Michael Gove was distinctly equivocal about it when interviewed on the Today programme. Laura Kuenssberg reported on Twitter that a No 10 source said ‘the Supreme Court is wrong and has made a serious mistake in extending its reach into these political matters’. The fact these people all claim they will still ‘respect’ the decision does not detract from the corrosiveness of their sentiments.
The prorogation judicial reviews concerned the constitutional equilibrium between government, parliament and the courts. Today, an 11 member UK Supreme Court panel affirmed its centuries-old supervisory jurisdiction over acts of government and ruled unanimously that Boris Johnson’s government failed to advance any reasonable justification for proroguing parliament. The prorogation was therefore unlawful and ‘never happened’ so parliament is back in the game.
Scotland’s highest court and a senior divisional court of the High Court in England and Wales have reached opposite conclusions about whether the recent decision to prorogue parliament was lawful.
Monday night’s marathon session in Parliament saw a number of issues debated into the small hours and further defeats for the government. While many raised important political and legal issues, one of particular interest to information lawyers, followers of Parliamentary procedure and journalists alike was the endorsement of a “Humble Address” motion brought by former Attorney General, Dominic Grieve.
On 24 July 2019, the High Court handed down judgment in R (on the application of Independent Workers Union Of Great Britain and others) v Mayor Of London  EWHC 1997 (Admin). This case related to the decision in December 2018 by the Mayor of London to remove an exemption and require private hire vehicles (“PHV”) to pay the Congestion Charge from 8 April 2019
According to the most recent data, two million people in London are living with illegal levels of air pollution. Nitrogen dioxide is one of the main pollutants and road transport is estimated to be responsible for 50% of total emissions.
We have seen in recent months various and different attempts by those who want to change the course of government policy on the issue of climate change.
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