Planning & Judicial Review

Judicial review is a court process which involves challenging the lawfulness of decisions made by public authorities. Judicial review challenges the way in which a decision has been made rather than the conclusion reached. The purpose is to ensure that the right procedures have been followed.

For a judicial review to have a successful outcome, there has to be significant grounds to raise the case including illegality, irrationality, procedural unfairness and legitimate expectation. There are a number of possible outcomes from a judicial review, these include:

  • Injunctions – the court issues an order to the public sector body in question regarding their behaviour.
  • Quashing orders or prohibiting orders – the original decision is completely overturned or stopped, usually because of the principle of ultra vires, where a public body has acted beyond the remit of the vested powers.
  • Mandatory orders – unlike a quashing order or a prohibiting order, a mandatory order requires a public sector body to actively engage in doing something. These are often used in cases relating to human rights, for example requiring government buildings to have disabled access.
  • Awarding damages – these cases often hit the news headlines because of the compensation money involved but are actually reasonably rare like the HS2 compensation case.

A recent and high profile example is the HS2 compensation case using a judicial review to hold the government to account. Groups acted on behalf of people whose homes that sit along the proposed High Speed 2 rail link from London to Birmingham. The Groups brought 10 cases for review at the High Court. They argued, amongst other issues, that the government had failed to properly take into account environmental considerations of the impact of building HS2 and that the government had not adequately considered the compensation scheme for those whose property would be within 0.6miles of the line. The government won 9 of the 10 cases brought but they lost the compensation argument, with the judge concluding that “the consultation on compensation was so unfair as to be unlawful”, requiring the government to revisit its plans.

During Chris Grayling’s time as Minister for Justice, he was noted for his view that judicial reviews had ‘got out of hand’ and that time and money was being wasted in dealing with unmeritorious cases which may be brought simply to generate publicity or to delay implementation of a decision that was properly made.

The claimant must write a formal letter Pre-action protocol (PAP) to the public body setting out the proposed claim and desired outcome. If the response to the PAP is unsatisfactory, the claimant must then request for ‘permission’ to apply for a judicial review. The Court then sends the papers to a judge for a decision on paper. The permission stage is in essence for the Court to decide upon unmeritorious cases being brought. Even at this stage there is a high bench mark to reach and it is vital to understand the correct legal basis of bringing a claim for judicial review.

If permission is refused, the claimant can “renew” the decision to be heard in open court. In some circumstances permission can be refused on paper but granted upon renewal in open court. In either event there is a costs exposure to the party bringing the claim and should you be unsuccessful you may face a costs award against you and will be detailed in any further Order from the Court.

It is important to note that the application process must be completed within 3 months after the grounds for the complaint first arose. Planning and procurement claims have even shorter timescales. Judicial Review can be fast paced and it is important to seek legal advice as early as practicably possible. With that being the case, a correctly managed claim could be brought out of time if the correct relief form the Court is sought.

If a judicial review outcome is successful the usual result is that the decision is ‘quashed’ meaning that the decision has to be made again. The reality of any outcome may even be the same as that which was already in place, so victories in judicial reviews can sometimes be pyrrhic. However, where there is clearly a legal problem with the process for making a decision, it is usually a substantive one. The importance of judicial review claims often derive from the principle that a claimant feels they have been prejudiced by the actions of a public. It is often the case with successful judicial review claims that by following the correct procedures, a public body could have produced a better and substantially different result for any individual. This was certainly the case for the HS2 compensation scheme.

The process for making a judicial review claim is clearly lengthy and complex. Judicial review claims require expert legal advice in order to navigate the pitfalls and risks. Our litigation solicitors have first-hand experience dealing with judicial review claims and understand the principles behind progressing such personal claims. If you would like to discuss a potential claim please contact our Dispute Resolution team on 01283 526200.

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