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Introduction Notes

BPTC Law Notes > Judicial Review Notes

This is an extract of our Introduction document, which we sell as part of our Judicial Review Notes collection written by the top tier of City Law School students.

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INTRODUCTION TO JUDICIAL REVIEW WHAT IS JUDICIAL REVIEW?..................................................................................................................... 2 In what situations is JR a suitable option?..................................................................................................2 Nature of the High Court's Jurisdiction.......................................................................................................2 Three Important Limitations....................................................................................................................... 3 WHO CAN APPLY?...................................................................................................................................... 4 C must have sufficient standing............................................................................................................. 4 Who has sufficient interest?.................................................................................................................... 4 Examples of Public Interest Claimants...................................................................................................4 Standing in Human Rights cases............................................................................................................ 5 Amenable to Judicial Review.................................................................................................................. 5 Who to Challenge?................................................................................................................................. 5 Public Law Decisions.............................................................................................................................. 7 Decision must be a Public Law decision.................................................................................................7 GROUNDS FOR JUDICIAL REVIEW........................................................................................................... 9 PRACTICAL CONSIDERATIONS............................................................................................................... 10 Considerations before Choosing JR:........................................................................................................10 Steps to be taken before applying for JR.................................................................................................11 Pre-action Protocol............................................................................................................................... 11 Defendant's response to letter before claim.............................................................................................11 Procedure - Non-Urgent Claims.............................................................................................................. 12 Claimant's Duty to Disclose...................................................................................................................... 12 Procedure - Urgent Claims...................................................................................................................... 13 REMEDIES.................................................................................................................................................. 14 Interim and Final...................................................................................................................................... 14 RESEARCH................................................................................................................................................ 15 Research Questions................................................................................................................................. 15

INTRODUCTION TO JUDICIAL REVIEW WHAT IS JUDICIAL REVIEW?A JR is when the High Court of Justice review the lawfulness of a government decision or act affecting a person or group of people.Claims are usually brought with the aim of overturning that decision.Criminal Justice and Courts Bill 2013-2014 to 2014-2015 has sought to limit the power of JR. The bill is now the Criminal Justice and Courts Act 2015, receiving the Royal Assent on 12 February 2015.JR is the fundamental constitution protection in the UK standing between the citizen and misuse of government power.

"One must be very careful about any proposals whose aim is to cut down the right to judicial review ... The courts have no more important function than that of protecting citizens from the abuses and excesses of the executive - central government, local government, or other public bodies ... the more power that a government has ... the more important it is for the rule of law that such abuses and excesses can be brought before an impartial and experienced judge who can deal with them openly, dispassionately and fairly" Lord Neuberger, President of the Supreme Court NB:

The first stage of a JR claim is an application for permission to apply for JR. The High Court's permission is required before the matter can proceed to a substantive hearing.

In what situations is JR a suitable option?
In general terms, judicial review may be appropriate where: 1) The challenge is based on an allegation that a public body has taken an unlawful public law decision; and 2) There is no adequate alternative remedy e.g. a right of appeal (JR is a 'remedy of last resort') The High Court reviews the legality of the process of decision making, not the findings of fact leading to that decision (with a few exceptions).

Nature of the High Court's JurisdictionThe High Court's statutory jurisdiction arises from the Senior Courts Act 1981, ss29 and 31 s29 - Mandatory, Prohibiting and Quashing Orders s31 - Application for Judicial ReviewScope of JR (i.e. what type of decisions are open to review) is defined by case law.

INTRODUCTION TO JUDICIAL REVIEWJudicial review proceedings are public law proceedings.High Court reviews the decisions of inferior tribunals and public bodies and inferior tribunals. Inferior tribunals - the Courts below it according to hierarchy Public Bodies - Bodies carrying out public functions such as PrisonAs this not an appeal in the usual sense, the High Court is principally concerned with the process behind the decision being challenged.

Three Important Limitations The availability of JR is limited by three (3) key tests:

1. Claimant needs sufficient standing/interest to bring a claim ("locus standi");

2. Decision maker must be a person or body that is amenable to review;

3. Decision must be a 'public law' decision. Without these three (3) factors in place, there is no scope for review. If test 2 and 3 are not met, permission will not be granted. Test 1 is treated differently.

INTRODUCTION TO JUDICIAL REVIEW WHO CAN APPLY?
C must have sufficient standing s31(3) Senior Courts Act 1981: "No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with the rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interestin the matter to which the application relates."

Who has sufficient interest?
Direct Interest- An individual who is personally affected by the decision will have standingA Housing Association tenant who has just been evicted from their property;Asylum seeker whose support is withdrawn contrary to the rules;Must have standing throughout case: In Greaves v Boston Borough Council [2014] EWHC 3590 (Admin). A resident brought JR proceedings against the grant of conditional planning permission for a windfarm in their local area. During the proceedings, the Claimant managed to sell their property and move away, although the claim failed on substantive grounds. The High Court also felt that the Claimant ceased to have sufficient interest in the claim when he moved away. For that reason alone, the claim would have failed.

Indirect Interest: Leading Case See Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd
[1982] AC 617 NB:

Standing should not be determined as a preliminary issue. At permission stage it is a "threshold" test, to prevent abuse of the system by 'cranks and busybodies'. Test at full hearing is whether C can show a strong enough case on the merits in relation to his or her concern with the subject matter of the application.

Examples of Public Interest ClaimantsPublic interest groups e.g. Greenpeace, Child Poverty Action Group will usually, but not always, have standing - it depends on the facts of the particular case, they must have wider public importance. See R v Inspectorate of Pollution ex parte Greenpeace (No 2) [1994] 4 All E.R. 329. The Court found that organisation had national and international standing and was an entirely responsible and respected body with a genuine concern for the environment. This concern let to a bona fide interest in the subject matter for review.

INTRODUCTION TO JUDICIAL REVIEWUnincorporated associations (e.g. local resident's groups objecting to planning or environmental decisions in their area will also usually have standing)Professional Regulatory bodies regulating the interests of a profession and its public clients e.g. The Law SocietyIndividual citizen(s) e.g. non-resident was found to have standing to review a council's library policies: R (Williams) v Surrey CC [2012] EWHC 516 (Admin). C wanted to challenge the council's new policy of introducing community public libraries in its area. C herself did not actually live in the affected area but worked near its border. D counsel argued that she did not have standing as she was not affected by the decision. The High Court dismissed that argument holding as follows: "... It is clear that there are a wide range of people who can legitimately claim an interest in the implementation of policies, in this case involving libraries, and that interest can extend, quite legitimately way beyond those who live, work, pay local taxes within the area. This is not an unusual situation in modern legislation and current practices within the Administrative Court and interest groups and those who has a matter of public concern in relation to a whole spectrum of interest, from planning and environment through to quality and community legislations and the payments and collection of revenue, and I am not intending an exhaustive list, are held to have a sufficient interest in bringing a Judicial Review proceedings, in cases where it is arguable that there has been a breach in relevant legislation or relevant law and that there has been as a result an impact on a section of the community which need not necessarily include the individual who is bringing the proceedings ..."

Standing in Human Rights cases Cases involving an alleged breach of Convention Rights is subject to a narrow test, namely, the person seeking review must be a 'victim' of the decision or act complained of, the 'victim' may be an individual or group. The status of 'victimhood' arises from the breach itself rather than any actual damage caused.Person seeking review must be a "victim" of the decision complained of - Art 34 ECHR, s7(1) Human Rights Act 1998.'Victim' can be a natural or legal person e.g. a pressure group representing individuals whose rights have been breached'Victimhood' arises from breach of the right, rather than any actual damage caused Cullen v Chief Constable of the Royal Ulster Constabulary [2003]UKHL 39

Amenable to Judicial Review Who to Challenge?

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