Appeals Judicial Review And Enforcement Notes

Appeals & Judicial Review

Part 36 Offers in Appeals

1. A Pt 36 offer made before trial has effect in relation to costs of proceedings up to final disposal of the 1st instance case (r36.3(4)).

2. Costs for appeals can be resolved by a separate Pt 36 offer for costs in appeal (r36.3(2)(b), 36.3(4)).

Judicial Review

(i) What?

• Judicial Review is not an appeal of a decision, but a review of the manner in which the decision was made.

• JR lies against inferior courts, but only rarely against CC because the proper approach is to appeal. Superior Courts (HC and above) are not subject to JR.

• A distinction is drawn between where judge got law/facts wrong, and the procedures frustrated.

(ii) Where?

• HC (QBD) per s38(3) CCA 1984.

• Judicial review of planning decisions/highways/compulsory purchase etc take place in Planning Court (r54.21)

(iii) How?

• C must have locus standi (a "sufficient interest in the manner to which the application relates" s31(3) SCA 1981)

• The decision must be susceptible to judicial review. It must affect them either by altering rights which are enforceable in private law, or by depriving a person of some benefit or advantage. It must be an issue of public law, not private law!

(iv) Remedies

1. Quashing Order ("Certiorari")

   1. This quashes the decision of the inferior court, tribunal, or public authority.

   2. It has the power to remit back to the inferior body, and has the alternative power to substitute its own decision provided that: (I) The decision was quashed (ii) It was quashed for an error of law; and (iii) Without the error, there could only have been one decision it could have reached.

2. Mandatory Orders ("Mandamus")

   1. This requires the body to DO something, carry out its duties etc.

   2. Disobedience is contempt of court.

3. Prohibitory Orders ("Prohibitions)

   1. This restrains a lower court acting outside its authority

4. Declaration

   1. This is a decision of the court on question of law or rights.

   2. It must be a real rather than theoretical question, and it must be raised between parties having true interest in having it resolved.

5. Injunction

   1. This is granted where just and convenient (s37 SCA), but it cannot be ordered against the Crown (s21(2) Crown Proceedings Act 1947) except where to protect rights deriving from EU law (Factortame (No 2)).

6. Money Awards

   1. Damages, restitution, recovery of a small sum due may be made on an application for JR.

   2. Only in conjunction with other remedies available in JR claims (r54.3(2)).

It is an abuse of process to take a private law action against public body by Judicial REview thereby depriving the public body of the rights which protect it under JR.

JR Pre-Action Protocol

• Compliance is not necessary where case is urgent, time limit is less than 3 months etc.

• Should first send Letter of Claim to D seeking to establish whether litigation can be avoided and identifying the issues.

• D should reply within 14 days, or if this is not possible and interim reply should be sent within this time proposing a reasonable extension. It should say in clear terms whether the claim is conceded in full/part or is disputed.

No written evidence may be relied upon unless it has been served or court gives permission (r54.16.)

If C seeks to rely on additional grounds, court's permission is needed again r54.15.

D and any other person served with CF who wish to contest/support it, must f/s detailed grounds for contesting/supporting and any written evidence within 35 days of service of order giving permission.

Court may decide JR case without a hearing if all parties agree (r54.18)

JR action accrues on date of judgment/order/conviction.

Starting the Application

1. Permission to Proceed

   1. CF must be issued promptly, and in any event not later than 3m after cause of action accrued (r54.5(1)). It may not be extended by the parties. An extension may be granted by the court applying the OO - Is there a "good reason" to grant the extension?

      1. It follows an application may be refused even within 3m if not made promptly.

      2. Can refuse relied if delay and granting of relief would cause substantial hardship or substantially prejudice the rights of any person (including the general public) or be detrimental to good administration (s31(6) SCA 1981). No need for causal relationship between prejudice and delay.

   2. The JR CF is similar to a Pt 8 CF, but different. It must state:

      1. PD16(15), PD54A, r54.6:

         1. Name and address of "interested persons"

         2. That C is requesting permission to proceed with JR;

         3. Remedies claimed;

         4. HRA 1998 - if s4, specify the legislation or public act/court/judicial act

      2. PD54A(5.6) - CF must be accompanied by:

         1. Statement of C's grounds for bringing claim (PD54A(5.6))

         2. Statement of facts relied on;

         3. Application to extend time limit for filing CF (if any);

         4. Application for directions

      3. PD54A(5.7) - JR must be accompanied by:

         1. Written evidence;

         2. Copy of Order sought to be quashed;

         3. Copy of judgment of inferior court (if any)

         4. Copies of statutory material;

         5. Essential documents for advanced reading by the court;

2. Acknowledgement of Service

   1. Have 21 days to acknowledge service (r54.8(2)(a)). Must be served within 7 days after it is filed (r54.8(2)(b)).

   2. The acknowledgment must set out the grounds on which the claim is contested, and set out any "interested persons" per r54.8(4).

   3. If fails to AoS, not allowed to take part in Permission Hearing unless court allows him to do so (r54.9(1)).

3. Permission

   1. Usually done by judge without hearing. - Is there an arguable case from the papers?

   2. Judge's Order with reasons are then served on C, D, and any other person who filed AoS (r54.11)

   3. If so requested in the Notice, Applicant may ask for Hearing.

   4. Court will give other Case Management Directions (r54.10).

4. Reconsideration

   1. IF refused, C may file a request for decision to be reconsidered at hearing (r54.12(3)).

   2. This must be made within 7 days of service of the refusal of the permission....

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