Making an Application to Judicially Review

Who can be Judicially Reviewed

Almost any public authority or public decision maker can be reviewed. Some of the most common examples that Rhys is instructed to challenge are:

1. The decisions of the CCRC not to refer a case to the Court of Appeal;
2. The refusal of parole;
3. The decision to recall prisoners;
4. CPS charging decisions or decisions not to offer a conditional caution;
5. Decisions on matters of law, such as wasted costs.

On What Grounds can a Judicial Review be Made?

There are three separate grounds of Judicial Review that can be pursued and I will deal with each of them separately in due course.

1. Illegality
2. Fairness
3. Irrationality and Proportionality

Illegality

This can be shown where there is a failure to follow a piece of law or guidance that is in place for the decision maker. There are also several more technical grounds that can be relied upon:

1. Failing to consider the relevant information and not ignoring that which is irrelevant;
2. Not undertaking sufficient enquiry and taking all reasonable steps required to reach a proper decision;
3. Not delegating a decision for which the individual is personally responsible;
4. Applying the policy in a rigid manner;
5. Not complying with the Human Rights Act. 

Fairness

This primarily relates to following proper procedures and ensuring that which is legitimately expected is delivered. The following are possible examples of where fairness will be an effective ground of judicial review:

1. There is a general presumption that an individual will be allowed to “put their case forward” and be informed about the case;
2. Denying access to documents and refusing to hear relevant evidence;
3. Failing to comply with a “legitimate expectation”.

Third party material” is defined as material held by a person, organisation or government department other than the investigator or prosecutor. [Para. 53 AG’s Guidelines]

Irrationality / Unreasonableness Schedule of unused material

Finally, when considering irrationality, the test is known as ‘Wednesbury unreasonableness’. The test a Court will apply is whether or not the decision is so unreasonable, no proper public body would reach such a decision.

Time Limits

The time limit placed on a Judicial Review is 3 months from the date of the decision that is sought to be reviewed (CPR Part 54). This time limit can be extended only if there is “good or adequate explanation for the delay and that extending the time limit will not cause substantial hardship or substantial prejudice or be detrimental to good administration”.

Before a Judicial Review can be lodged, it is essential that all avenues of appeal have been exhausted (otherwise the application will be struck-out).

It is also important to comply with the pre-action protocol. This is where the decision maker is written to, the claim set out, and they are given an opportunity to respond.

Can I Apply for an Injunction?

The power for making an interim injunction is pursuant to CPR 25.1 (a) and s.37 (1) Senior Courts Act 1981. As a result, the Court can grant an injunction where it is ‘just and convenient to do so.’ (s.37 (1) Senior Courts Act 1981).

The first question to be determined is whether or not there is a substantive cause of action.The Court must consider the following in line with using its over-riding discretion:

1. Whether there is a serious question to be tried;
2. Whether damages would be adequate to the Claimant if they were to succeed at trial;
3. Whether the Claimant can provide damages as an undertaking to compensate the Defendant in the event that the Claimant is unsuccessful at trial;
4. Where the balance of convenience lies in determining whether to grant an interim injunction;
5. Where factors are evenly balanced, the status quo should be maintained.

In order for the Court to be satisfied that there is a serious question to be tried, the claimant need only show that the cause of action has substance and reality, beyond that it does not matter whether the chance of success is 20 percent or 90 percent.

What about an Interim Injunction?

Interim relief, by way of an interim injunction preventing assistance being provided, may be sought at any stage of a judicial review:

1. Before starting proceedings.
2. At the same time as starting proceedings.
3. During proceedings. 

It is most typically is sought at the permission stage. In exceptionally urgent circumstances a person may apply for interim relief before starting proceedings. The application for interim relief will be considered by the judge on the papers, usually at the same time for permission to apply for judicial review.