Restriction on Remedies

Procedural Requirements

There are two stages of judicial involvement: the “permission” stage and the “substantive” stage.

CPR 54.4: “The court’s permission to proceed is required in a claim for judicial review”.

Permission: Pre-Action Protocol for Judicial Review

An applicant for judicial review should send a “letter before claim” in “good time” to the defendant before making a formal application; the purpose of which is to identify issues in dispute and establish whether they can be narrowed or if litigation can be avoided (para 14).

NB. The protocol is not binding, merely sets out a code of good practice parties should generally follow (para 2).

However, “the court will normally expect all parties to have complied with it in good time before proceedings are issued and will take into account compliance or non-compliance when giving directions for case management of proceedings or when making orders for costs” (para 7).

A complete failure by the claimant to comply with the pre-action protocol will likely warrant peremptory refusal of permission for judicial review: R(S) v Hampshire CC. On the facts, besides this failure, claimant also made no attempt whatsoever to seek to avoid litigation. Held, no permission.

However, “This protocol will not be appropriate in very urgent cases. In this sort of case, a claim should be made immediately. Examples are where directions have been set for the claimant's removal from the UK or where there is an urgent need for an interim order to compel a public body to act where it has unlawfully refused to do so, such as where a local housing authority fails to secure interim accommodation for a homeless claimant” (para 6).

Permission: Is the case arguable?

At the permission stage, courts ask if the case is arguable. Sharma v Brown-Antoine: (1) “[T]he court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy.” (2) “[B]ut arguability cannot be judged without reference to the nature and gravity of the issue to be argued. It is a test which is flexible in its application… It is not enough that a case is potentially arguable.”

Time limits

s 31(6), SCA 1981: “Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant – (a) leave for the making of the application; or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

CPR Rule 54.5(1): “The claim form must be filed – (a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim arose.”

CPR Rule 3.1(2): “Except where these Rules provide otherwise, the court may – (a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired).”

The discretion in CPR Rule 3.1(2) to extend time only arises where there is good reason to do so, but even then, the court may still refuse leave if in its opinion the granting of the relief would likely cause hardship or prejudice or be detrimental to good administration (as specified in s 31(6) SCA 1981): R v Dairy Produce Quota Tribunal for England and Wales, ex p Caswell.

These provisions should not be applied technically; as long as no prejudice is caused, the courts will not rely on these provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled: Maharaj v National Energy Corporation of Trinidad and Tobago [2019] UKPC 5.

Stage 1: Undue delay

“The grounds to make the claim first arose”

CPR Rule 54.5(1): “The claim form must be filed – (a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim arose.”

R v SS for Trade and Industry, ex p Greenpeace Ltd: The grounds to make the claim refer to the substantive act or decision which is the real basis of the claimant’s complaint. If, after that act has been done, he takes no steps but merely waits until something consequential and dependent upon it takes place and then challenges that, he runs the risk of being put out of court for being too late.

In PQs, what this is depends on the facts.

R (Burkett) v Hammersmith and Fulham LBC: the council first resolved to refer building application to SS and to grant planning permission. Thereafter, it actually granted planning permission, which B challenged. Held: clock began running from grant of planning permission, rather than from the resolution. The latter had no legal effect; if developers commenced works only on the basis of it they do so at their own risk.

Cf R (Nash) v Barnet LBC: N challenged decisions to award contracts following competitive dialogue procedures under Public Contracts Regulations 2006. Held: clock began running when council began formal public procurement procedure, not afterwards when contracts were awarded. The commencement of procurement procedures was not a provisional or contingent decision to enter into...

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