Blog
Judicial Review Reform – waiting for the sting
Sophie Kemp
"The team is small but packs a punch well above its size: they are quick, flexible, continuously on the ball and efficient.”
Legal 500 UK 2021
Whether you are an individual, senior professional, company, business group, charity or pressure group, a judicial review can be a powerful way of insisting that a public body changes its course or, at the very least, reviews and explains its actions.
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, we are regularly instructed to represent claimants and interested parties (individuals and corporate bodies), as well as public body defendants in public law litigation. We have acted in many leading cases, and were 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.
We have significant experience of judicial review in a wide range of sectors including financial services, education, health and social care, legal and professional services, police and energy. We are also specialists in challenges arising out of regulatory/disciplinary and criminal investigations and proceedings. We are well known for our insights into the workings of central government and the public sector, with Adam Chapman and Stephen Parkinson having held senior roles as government lawyers.
How our judicial review solicitors can help
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.
Making a judicial review claim
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.
Defending a judicial review claim
If you are a regulator or public body facing the scrutiny of judicial review, we can help.
We understand the wider context in which decisions of central government, statutory regulators and other bodies exercising public functions are made, and the impact a claim can have.
We are ready to work with you throughout the decision-making process to ensure the lawfulness of your actions, and can also be relied upon from the moment a potential dispute arises to mount a principled, measured and robust defence. We know how to navigate the competing interests involved.
recent judicial review cases
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Acting for an individual in successfully challenging a search warrant and preventing the police from applying to the Crown Court to retain material that had been seized when the warrant was executed
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Acting for Chief Constable David Crompton in overturning a decision of a Police and Crime Commissioner requiring him to resign
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Acting for a psychotherapist in stopping a regulatory body from taking disciplinary proceedings against her.
- Acting for the London Criminal Courts Solicitors Association and the Criminal Law Solicitors Association in two separate challenges to the Lord Chancellor’s decision to introduce a “two tier” system of contracts for criminal legal aid defence solicitors
- Acting for the Financial Conduct Authority in defending a challenge made by Rosneft arising out of the EU sanctions on the Russian Federation
- Acting for a group of companies challenging third party notices issued by HMRC following a mutual legal assistance request
- Acting for the General Dental Council in defending a challenge to an increase in annual registration fees for dentists
Frequently asked judicial review questions
What is judicial review?
Judicial review is a specialised form of civil litigation involving challenging the lawfulness of an enactment, or a decision, action or failure to act of a public body in relation to the exercise of a public function.
Who are the parties to judicial review?
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.
What is the basic judicial review procedure?
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.
What are the grounds for judicial review?
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.
What is the time limit for judicial review?
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.
How long does judicial review take?
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.
What remedies can judicial review deliver?
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.
How is judicial review funded?
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.
Caroline Day
Partner
Emily Carter
Partner
Sophie Kemp
Partner
Stephen Parkinson
Senior Partner
Nick Wrightson
Partner
Fred Allen
Senior Associate
Sameera Abdulrehman
Paralegal
Nick De Mulder
Associate
Bianca Patulea
Paralegal
Imogen Roberts
Trainee Solicitor
Knowledgeable, responsive, thoughtful, professional, well networked and well connected, with a touch of elegance which goes beyond what one normally encounters in a legal firm.”
Legal 500 UK 2021
They are outstanding; they combine high-level legal skills with real human understanding."
Chambers UK 2021
Legal advice is always given with an awareness and deep experience of the wider legal context (in our case, public inquiries) and a sensitivity to the client’s objectives.”
Legal 500 UK 2021
One of their main strengths is the personal touch - you get the sense the lawyers really care about the work they undertake and you as a client."
Chambers UK, A Clients Guide to the UK Legal Profession, 2019
Experience, willingness to challenge and be challenged, understanding of legislation, regulations and drafting skills."
Chambers UK, A Client's Guide to the UK Legal Profession 2018
Sources praise the group's abilities in 'sensitive, high-profile, politically inflected work' and attest that 'what is really refreshing is their commitment to their clients and the care they take'..."
Chambers UK, A Clients Guide to the UK Legal Profession
Clients are ‘very impressed with the degree of care’ Kingsley Napley LLP has in handling judicial reviews, public inquiries, inquests and regulatory matters."
Legal 500 UK, 2017
Latest blogs & news
Judicial Review Reform – waiting for the sting
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.
Government Launches Public Consultation on Reforms to Judicial Review
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.
Supreme Court rules that Nigerian communities can have their case against Shell heard in the English courts
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.
Striking a balance or tipping the scales? The Independent Review of Administrative Law and the possible reform of Judicial Review
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.’
Office for Students refusal to register higher education provider unlawful due to failure to delegate and ‘secret policy’
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.
International Court of Justice and UN General Assembly do not alter the outcome of the Chagos Islands challenge
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.
Voter ID laws and the way courts interpret legislation
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.
The High Court confirms that unincorporated associations may participate in both judicial review claims and statutory challenges
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.
What does the new government mean for public lawyers?
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.
Enemies of the constitution? The words of those attacking independent judges are corrosive and wrong
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.
Since prorogation ‘never happened’ what happens next?
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.
When politics and law collide: The prorogation judicial reviews
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.
“WhatsApp” with Dominic Grieve’s motion for Brexit communications?
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.
High Court finds Mayor’s Congestion Charge decision did not involve unlawful discrimination
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 [2019] 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
London Climate Action Week: Saving Londoners from nitrogen dioxide, one judicial review at a time
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.
KN Green Week: Can law help save the world?
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.
Court finds approach by DWP to Universal Credit ‘odd in the extreme’
The High Court judgment of R (Johnson, Woods, Barrett and Stewart) v SSWP [2019]EWHC 23 (Admin) involved a judicial review challenge to the method of calculating universal credit. The claimants successfully demonstrated that the DWP’s method of calculation was an incorrect interpretation of the Universal Credit Regulations 2013 (the Regulations) as it failed to account for circumstances where workers’ pay dates do not converge with the fixed assessment periods under the universal credit scheme.
Judicial Review costs – a missed opportunity to extend access to justice
In its consultation “Extending Fixed Recoverable Costs in Civil Cases: Implementing Sir Rupert Jackson’s proposals”, which was launched on 28 March 2019, the Ministry of Justice has failed to take forward a proposal that could have had a significant impact on the ability of individuals to hold public bodies to account through judicial review proceedings.
“A sorry state of affairs” – Lazarov v Bulgaria and R (Lazarov) v Westminster Magistrates’ Court
In the case of Lazarov v Bulgaria the High Court found itself in some legal difficulty as it sought to deal with an appeal against an extradition judgment from Westminster Magistrates’ Court that was replete with mistakes.
Judicial review and secondary legislation: What power does the court have to fix broken legislation?
In the fourth post in our Public Law team’s blog series, Emily Carter examines the powers of the court to review the hundreds of pieces of secondary legislation being swiftly created in preparation for Brexit.
