Blog
Alternative remedies in judicial review: the case of Re McAleenon [2024] UKSC 31
Sahil Kher
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.
Our extensive expertise is reflected in the legal directories, where we are recognised as a Band 1 firm by Chambers & Partners for Administrative and Public Law (Mainly Commercial) and Administrative and Public Law (Mainly Public Sector and Charities), and as a Tier 1 firm by the Legal 500 for Administrative and Public Law.
How our judicial review solicitors can help
We act for complex organisations, regulators and individuals and we know the ins and outs of bringing and defending claims. We work with you from the outset to quickly identify the core issues and gain an insight into your key concerns, allowing us to deliver clear, focussed, strategic and commercially driven advice and management of your case.
We understand the importance of the right presentation and tone, as well as appreciating the pressure a legal claim can put on already busy staff.
Our team is led by Sophie Kemp, who is 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, our judicial review solicitors 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 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.
judicial review cases
Corporate/Commercial
- Acting for a private company as an interested party in respect of a major judicial review challenge pertaining to PPE procurement.
- Acting for a group of companies in the High Court and Court of Appeal challenging third party notices issued by HMRC following a mutual legal assistance request.
- Defending the Payment Systems Regulator in a commercial JR challenge by ATM operators.
- Defending the Financial Conduct Authority in a challenge made by Rosneft arising out of the EU sanctions on the Russian Federation.
- Advising a group of companies in respect of possible challenges to changes brought about by legislation.
Regulators/public bodies
- Acting for the Institute and Faculty of Actuaries to defend a challenge brought by a former fellow.
- Acting for the Payment Systems Regulator in defending a challenge to a decision concerning independent ATM operators.
- 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 the General Dental Council in defending a challenge to an increase in annual registration fees for dentists.
Public interest/charities
- Acting for a major political party in a challenge against ITV’s election broadcasting.
- Acting for an intervener in a judicial review of the Tavistock Clinic and its policy on prescribing puberty blockers.
- Acting for a public interest group in prospective judicial review proceedings against the University of Essex in connection with the implementation of the Reindorf Review.
- 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.
Individuals
- Acting for Superintendent Robyn Williams in successfully defending a challenge brought by the Metropolitan Police Service against a decision of the Police Appeals Tribunal.
- 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.
- Acting for Chief Constable David Crompton in overturning a decision of a Police and Crime Commissioner requiring him to resign.
- Acting for a psychotherapist in stopping a regulatory body from taking disciplinary proceedings against her.
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.
Emily Carter
Partner
Fred Allen
Senior Associate
Sahil Kher
Senior Associate
Andrea Dalling
Professional Support Lawyer
Charlie Roe
Associate
Natalie Cohen
Partner
Sameera Abdulrehman
Associate
Kirsty Cook
Associate (Barrister)
Lord Carter of Haslemere CB
Consultant
Caitlín Comins
Trainee Solicitor
Harriet Kirsopp
Paralegal
Latest blogs & news
Alternative remedies in judicial review: the case of Re McAleenon [2024] UKSC 31
In October, the Supreme Court handed down a unanimous judgment providing guidance on the approach to be taken where a regulator who is subject to judicial review proceedings contends that the claim should be dismissed due to an “alternative suitable remedy”.
The Rwanda Act: a constitutional crisis?
We are in unprecedented territory, writes Lord (Harry) Carter of Haslemere. So what will our courts do next?
A Plethora of Public Inquiries
This article was first published by New Law Journal on 4th August.
The Judicial Review and Courts Bill: Proposed reform of Judicial Review
Attempts to narrow the scope of judicial review have long been on the Conservative Party’s political agenda. Following the Independent Review of Administrative Law (‘IRAL’) and the subsequent government consultation on reform of judicial review, the then Lord Chancellor, Robert Buckland, introduced the Judicial Review and Courts Bill (‘the Bill’) to the House of Commons on 21 July 2021. The Bill is making its way through Parliament and is currently at the committee stage.
As we highlighted in our earlier blog following the Bill’s announcement, the proposed reforms are, at first sight, milder than had been feared. Nevertheless, the Bill proposes to make significant amendments to the remedies available in judicial review proceedings and to also limit the court’s jurisdiction.
Case Note – challenging the Court’s jurisdiction in judicial review proceedings: R (Girgis) v Joint Committee on Intercollegiate Examinations [2021] EWHC 2256 (Admin)
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.
New guidance encourages judicial review practitioners to be concise, succinct and prepared
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.
Can you devise an effective ouster clause to exclude a category of decision making from judicial review?
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.
The UK Supreme Court has confirmed the principles for judicial review of policies
R (A) v Secretary of State for the Home Department [2021] UKSC 37 and R (BF (Eritrea) v Secretary of State for the Home Department [2021] 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.
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.
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.
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.
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.