What is judicial review?
Many of the decisions that have a significant impact on individuals’ lives are made by public servants who exercise authority that was delegated to them in legislation. Immigration Officers who determine whether an individual is entitled to status, Housing Officers who make decisions about how many points to attribute to an applicant, and Officers who process claims for benefits and financial support, all exercise delegated authority.
Typically, there are two parties involved in an application for judicial review: the applicant and the respondent. The applicant is the party who alleges that a public body acted unlawfully. In some instances, there may be more than two parties involved in the proceedings. Notice parties and interested parties must sometimes be included in when you issue proceedings. Your solicitor will know if additional parties need to be involved. For now, it is sufficient to know that while proceedings are usually between two parties, in some cases, there may be more than one respondent.
It is the applicant who initiates legal proceedings by lodging an application for judicial review. During the proceedings, the applicant also bears the burden of proving that the Respondent acted unlawfully. For our purposes, the NGO or individual that the NGO is supporting in the judicial review proceedings will be the applicant. Similarly, for our purposes, the respondent will likely be a government department, a public body or a body exercising public functions. The Respondent will defend the decision or actions of the relevant body and ask the Court to dismiss the application for judicial review.
Please note that this Toolkit does not constitute legal advice.
If you are considering taking legal action, please contact a solicitor.
What is the Court’s role in an application for judicial review?
The Court’s role in judicial review proceedings is to determine whether the body properly exercised its functions when it made the decision. The Court does not have the scope to look at the facts again and make the decision that it thinks the public body should have made. Judicial review is structured this way to maintain the division of powers between the executive and the judiciary; to ensure that decisions are made by the body to whom the authority has been delegated. Courts are hesitant to step in and will only set aside a decision where it finds an error in the way that the public body exercised its authority. The Court will set aside a decision where it is so unreasonable that it could not have been taken by a person who was acting rationally or logically. However, even where the judge finds an error, their role is not to substitute the body’s decision for their own.
What can be judicially reviewed?
An application for judicial review is a process through which members of the public can challenge public decision-making. It is a mechanism to challenge the lawfulness of:
- The policies of public bodies
- Decisions taken by public bodies
- Acts or omissions by public bodies
- Legislation, including Acts of the Northern Ireland Assembly
- Acts of the Parliament of the Westminster can be subject to a qualified form of review under the Human Rights Act
What are the potential outcomes of an application for judicial review?
Knowing what you want to get out of a legal challenge is often the best way to know whether it is the right process to pursue. We will therefore begin by looking at the various orders that the Court could issue if you were successful in an application for judicial review.
In litigation, people often think of the outcome of a case based on who wins and who loses. However, effective strategic litigation requires considering the effect of the proceedings. The effect of the litigation will often depend on what we call remedies. Remedies are the orders that a court can make to set something right; to remedy the relevant breach of the law.
The remedies available in an application for judicial review are:
1. an order of certiorari – a quashing order
When a judge orders certiorari, it means that he is quashing the decision that is the subject of the judicial review. This is the most commonly sought remedy in judicial review proceedings. When this happens, the judge will return the matter to the body that made the decision. The body must then make a new decision. The Court cannot tell the public body what the outcome of its decision should be. In some instances, it may provide guidance to the public body.
2. an order of mandamus – a mandatory order
The Court can make an order mandating a public authority to carry out an action that it has a duty to perform. This would be most applicable where the application for judicial review related to the public body’s failure to make a decision, rather than a challenge of a decision. Again, the Court cannot tell the public body what decision to make, or how to carry out its duty, it can only order it to take action.
3. an order of prohibition
The Court can make an order to prevent a body from proceeding with a particular event or action.
4. a declaration
The Court can make an order declaring that the actions taken by the public body were unlawful. This could be combined with another order, like certiorari, which would have the combined effect of quashing the public body’s action or decision and declaring that its action or decision was unlawful.
The Court could also order a public body to refrain from acting in a particular way. This remedy is similar in its effects to prohibition.
As you can see, the remedies available focus on ensuring that public bodies exercise their authority appropriately and lawfully. The focus is not on compensating an individual for the public body’s actions. The Court retains the power to award damages, but it is uncommon for a judge to award damages in an application for judicial review.
However, judicial review is only one kind of judicial process. If your client or service user is seeking damages, it may be useful to consider whether they may be able to bring civil proceedings. Civil proceedings are outside of the scope of this toolkit, but you may want to consider whether it might be better suited to give the remedy that your client or service user seeks.
Further Information on Judicial Review Remedies
The remedies available on judicial review are set out in section 18 of the Judicature (Northern Ireland) Act 1978 and rule 1, Order 53 of the Rules of the Court of Judicature (Northern Ireland) 1980.
Can I bring an application for judicial review?
Judicial review is not available in all circumstances. You must ensure that the decision, action or omission that you want to challenge is judicially reviewable, that there are no bars to your proposed judicial review, and that your challenge relates to one of the grounds for judicial review. We will look at each of these requirements in turn. You can think of these matters as a checklist to ensure that you can bring an action for judicial review.
Can I judicially review this body or issue?
You first need to determine whether the body that made the decision, took the action, or made the omission that you want to challenge can be subject to judicial review.
Generally, only public bodies can be subject to judicial review, which is why we have used the term public body throughout this toolkit. However, bodies that make decisions on public law issues or carry out pblic functions are also subject to judicial review. It is therefore more precise to say that a body or decision maker can be judicially reviewed if you can answer yes to any one of the following three questions.
Does the body derive its power from statute?
The decisions of any body that derives its powers from statute can be subject to judicial review. Such bodies include government departments and agencies set up to exercise power delegated to them.
Does the body carry out a public function?
A body may still be subject to review if it does not derive its power from statute, but nonetheless carries out a public function. This is the broadest of the three tests and is the most subjective. Determining whether a body carries out a public function must be assessed on a case-by-case basis. It is also important to remember that bodies which perform public functions can also make private law decisions.
Is the challenge an issue of public law?
A public law issue is one that arises from an individual’s relationship with the government, a government body, or law and policy as set or interpreted by the government. This means that, even if a particular body does not derive their power from statute, their decisions can be judicially reviewed if the decisions relate to a public law issue that has an impact on the public generally. The public would be generally impacted by the review of a decision which would have implications for the law, its interpretation, or the policies and practices of public bodies.
A public law issue is distinct from a private law issue which would arise from relationships between individuals. It is important to know that public bodies can still engage in private law issues. For example, a local council can enter into a contract with a service provider. However, that decision would not be subject to judicial review because it does not relate to the government’s exercise of power over an individual and their rights.
Do any of the barriers to judicial review apply here?
In Northern Ireland, applications for judicial review are heard before the High Court. An applicant must obtain leave from the Court to bring an application for judicial review. This means that that the applicant must get the Court’s permission to bring a judicial review before the case can proceed. This is a preliminary and mandatory step in the judicial review process. We talk more about this permission, referred to as “leave” here.
The Court will likely not grant leave if any of the following barriers apply.
Delay in bringing an application for judicial review can prevent an applicant from being able to bring proceedings. Applications for judicial review must be brought within 3 months of the decision, action or inaction that is the subject of the application for judicial review. The Court can refuse leave where cases are not brought within that 3 month window. The Court does have discretion to extend this deadline in limited circumstances. However, you should not assume that the Court will be flexible on this point. You should ensure that you lodge your application for judicial review within 3 months of the date of the decision, action, or omission. This bar ensures that public decision-makers are not hindered from making decisions by the indefinite threat of litigation.
You must honour this three-month deadline even if your service user or client only intends to proceed if they can secure funding for their application for judicial review. The courts have been clear that awaiting a decision on funding from legal aid or another source does not justify delay in an application for judicial review. If your client or service user is awaiting the result of a funding application, the best course of action may be to lodge proceedings protectively to ensure that you are not denied leave on the basis of delay. Lodging protectively means that you are lodging proceedings to ensure that your application is not time-barred, but that you are not yet sure if your service user or client will proceed with the application for judicial review. If you lodge protectively, you can state this in your Order 53 document (the form used to commence an application for judicial review) to bring the issue of funding to the Court’s attention and advise them that you may withdraw your application if you are unable to secure funding.
This 3 month timeline may not be relevant in all matters. Some challenges relate to a public body’s ongoing failure to comply with the law or to decisions that are continuing in nature. While an applicant may have more time to bring an application in those circumstances, it is still important to act in a timely manner and certainly when your client or service user becomes aware of the matter that they wish to challenge.
Judicial Review Deadline
Applications for judicial review must be brought within 3 months of the decision, action or inaction that is the subject of the application for judicial review.
The Court may refuse to hear an application for judicial review that is brought prematurely. An application for judicial review may be premature where the public body hasn’t made a decision yet, has made a conditional decision, or has made a preliminary decision, but has not yet reached a final, conclusive decision.
The intention behind this rule is to prevent the Court from hearing a matter before the body makes a final decision. This barrier ensures that the Court’s time, and by extension, public funds, are used effectively and only on matters which will not continue to evolve.
An applicant will be barred from bringing an application for judicial review where they have access to another forum which could hear and decide the matter. Judicial review is a remedy of last resort. An applicant should only bring an application for judicial review where they have exhausted all of the alternative processes available to them. In some instances, judicial review may be the only forum where a matter can be adequately resolved. However, most public bodies have internal appeal processes that must be exhausted before you can lodge an application for judicial review, and legislation may also provide a right of appeal against a decision. When your application for judicial review relates to a body that an ombudsman has the power to investigate, you should pursue that process, at least to some extent, before lodging an application for judicial review. This toolkit explores the relationship between judicial review and ombudsman processes further here.
If you fail to exhaust those alternative processes, the court is unlikely to grant leave to bring an application for judicial review.
Judicial review is a remedy of last resort.
4. Satellite Litigation
The Court is unlikely to hear an application for judicial review which relates to a case being heard in another court (for instance, a criminal court). This is often referred to as “satellite litigation”. This barrier exists because the Court will consider it inefficient to hear a matter where other litigation is already underway. If other related litigation is proceeding in another court, the High Court will likely not grant leave and advise you to exhaust the other challenges before launching an application for judicial review. The Court does, however, retain the discretion to hear matters that may amount to satellite litigation.
The proposed applicant in an application for judicial review must have standing in order to launch proceedings. Standing refers to the eligibility of an individual or an organisation to bring legal action. The Court will sometimes refuse to grant leave if the individual or organisation named as the applicant does not have a sufficiently strong connection to the decision, act or omission that the judicial review is challenging. Where the challenge relates to a decision, act or omission of a public body in Northern Ireland or the UK, or Northern Ireland or UK policy, regulation or legislation, the test is: whether the applicant has ‘a sufficient interest in the matter to which the application relates’.
Standing is a very important consideration for organisations who are considering making themselves, rather than an individual, the named applicant in the judicial review proceedings. The test for standing is broad enough to allow the Court to hear challenges brought by interest groups. For example, PILS members have had success bringing applications for judicial review which name their NGO as the applicant.
The Court may not hear an application for judicial review where an applicant has not complied with its duty of candour. The duty of candour places parties involved in litigation under an obligation to put all relevant information before the Court and to interact with the decision maker honestly and with integrity. The duty of candour is ongoing and continues throughout the course of the proceedings. If relevant information becomes known or available to either party, that party must disclose it to the Court and the other party or parties to the proceedings. Any relevant information must be disclosed, regardless of whether disclosing that information assists the party’s case.
It is important to remember that granting leave (permission) to bring an application for judicial review is at the Court’s discretion. It is always up to the Court to decide whether it will give you permission to bring your application for judicial review. Therefore, in some instances, leave (permission) may not be granted even if none of these barriers are present.
Does my issue fall within the grounds for judicial review?
Now that you know who you can bring an application for judicial review against and when you can bring an application for judicial review, we will discuss the grounds upon which you can judicially review the decision, act, or omission.
Grounds are the bases of your challenge – it is where you allege why or on what basis, what the public body did was wrong. There are four possible grounds for judicial review in Northern Ireland:
Illegality relates to the obligation on public bodies to comply with the law and to not exceed the powers that they have been given by statute. This ground alleges that the public body acted illegally when it took a particular decision, action, or when it failed to act. The ground of illegality would be appropriate to plead where a body does not comply with one of its duties or obligations set out in legislation or where it makes a decision that it does not have the power to make under legislation.
2. Procedural Unfairness
Procedural unfairness arises from the principle that public decision makers must comply with general principles of fairness in any action or decision at they take. When pleading this ground, you are alleging that the public body acted in a procedurally unfair manner when it made a particular decision. There are a number of sub-grounds under which you can nest an allegation of procedural unfairness. You can allege that the decision-maker:
- was, or could be perceived to have been biased
- failed to consult
- failed to give reasons
- failed to hold an oral hearing when one was required
- failed to make sufficient inquiry
- failed to follow a process which met the applicant’s legitimate expectations
Each of these sub-grounds have specific, technical criteria that must be met to establish that a decision-maker’s process was unfair. They will also apply differently depending on the context to a decision – where the implications for the individual are more serious, the higher is the standard of fairness that is expected by the law.
Irrationality is also known as “unreasonableness” and can be a more difficult ground to satisfy. When raising this as a ground, you are alleging that a public body’s decision or action is irrational or unreasonable. The test that the Court will apply to determine whether the threshold of irrationality has been met is whether decision is so unreasonable that no reasonable authority could have arrived at the same decision. This is often referred to as the standard of “Wednesbury unreasonableness”.
It is important to remember that when considering an application for judicial review, the Court’s role is not to find an error in the public body’s decision and substitute the Court’s own decision for that of the decision maker. Irrationality imposes a high threshold of unreasonableness that the applicant must satisfy to succeed on this ground. You must not simply demonstrate that another decision would be more reasonable. You have to show that no reasonable authority could have reached the decision that this body did.
An applicant can only raise the proportionality ground where the proposed application for judicial review engages an individual’s rights under the Human Rights Act 1998 and European Convention on Human Rights. The inquiry under the ground of proportionality is whether the public body’s interference with an individual’s human rights is proportionate. This principle is centrally concerned with balance, and in considering the ground of proportionality will undertake a balancing exercise. This requires considering the scope of protection under the right engaged in the application for judicial review, the factors that the public body considered, and the weight that it gave to those factors when it acted. Under this ground, the applicant must show that the public body failed to give sufficient weight to their rights when it made the relevant decision, took the relevant action, or failed to act. Sufficient weight here means that the public body did not give an individual’s human rights the weight that they are due at law. An argument that the public body did not consider the applicant’s human rights arguments to the extent that she wanted them to would not be sufficient to support an application for judicial review on the ground of proportionality.
Steps in an application for judicial review
Often when we think about litigation, we only think about the hearing. The bulk of the work in an application for judicial review happens in advance of the hearing. Here is a brief overview of the various steps in an application for judicial review. We hope that seeing these steps set out will demonstrate the amount of effort that goes into an application for judicial review and prepare your expectations for how the proceedings will unfold.
This step-by-step guidance is a simplified version of the procedure, and should not be considered as a substitute for any of the Court’s official guidance. If you are contemplating an application for judicial review, you should consult Order 53 of The Rules of the Court of Judicature and the Judicial Review Practice Direction 3/2018, which set out the requirements in detail.
Please note that this Toolkit does not constitute legal advice.
The Toolkit should not be relied upon in place of legal advice. If you are considering legal action in the form of an application for judicial review, we recommend that you speak with a solicitor. If you are unable to retain a solicitor and are a PILS Member, you can submit an application for legal support.
Step 1: Pre-Action Protocol
A Pre-Action Protocol Letter (“PAPL”) is a mandatory first step in an application for judicial review. It must be issued before an individual can lodge papers to commence the proceedings. A PAPL is a letter from the applicant to the respondent which details the applicant’s complaint (“alleged breach”) and their desired remedy. The purpose of a PAPL is to avoid unnecessary litigation. Issuing a PAPL can be an effective tool to reach a settlement. The “Pre-Litigation Considerations & Other Options section of this toolkit explores how issuing a PAPL can be an effective tool to reach a settlement and PILS’ success with that approach.
Sending a PAPL should not simply be considered a hoop that parties have to jump through. Applicants should spend significant time and effort on setting out the details of their proposed judicial review in their PAPL. A well-crafted pre-action letter may result in the proposed applicant getting their desired outcome without having to pursue litigation at all. In some instances, it may even lead to wider organisational or sectoral change.
The timelines for issuing a PAPL are based on the general timelines in applications for judicial review. An applicant must lodge their application for judicial review within 3 months of the date of the public body’s decision, act, or omission that they want to challenge. An applicant must seek to complete the PAPL process within those three months. Therefore the general timeline is:
The potential applicant should send their PAPL to the proposed respondent not later than 7 weeks following the date of the decision, act, or omission that they want to challenge. Best practice is to send the letter as soon as possible. It is important to know that failing to send a letter within this timeline will not necessarily jeopardise your application for judicial review. The purpose of sending the letter within 7 weeks is to provide an opportunity to settle the matter before lodging your application with the Court. If necessary, you can send the letter later on in the 3 month time period and lodge your application for judicial review on a protective basis before you receive a response from the respondent.
The proposed respondent must reply within 3 weeks of receiving the applicant’s PAPL.
A PAPL must include the following minimum information:
- The name and contact details of the proposed applicant and respondent
- Particular public bodies have specific designated addresses to which PAP letters requiring a response should be sent. The addresses are set out at page 23 of the Judicial Review Practice Direction. Before issuing your letter, verify that the designated address has not changed since the Direction was published.
- The details of the matter that you want to challenge:
- Specify the exact decision, act or omission that you are challenging
- Include the reference number that the public body has assigned to your matter. Particular public bodies have designated the information that they need. Find the reference details that you need to include at page 24 of the Judicial Review Practice Direction.
- The legal issue with the matter that you want to challenge
- A summary of the facts
- Why the matter is wrong in your view
- Include any alleged human rights breaches
- The details of the actions that you expect the respondent to take
- Here you are setting out your requested remedy. What do you want from the respondent? What is the outcome that you hope to get out of the litigation? Or, what would they need to do for you to not bring legal action?
- Set out any information that you want from the other party – this could include a request for a fuller explanation of why it made the decision that it did, or for them to provide you with additional documents that you want from them.
- Proposed reply date
- Advise the respondent when you expect to hear back from them on this matter. Remember: the guidance suggests a minimum of 3 weeks. The Court may not look favourably on giving a an applicant a respondent a shorter period of time to respond.
For full details on the required content of a PAPL please consult the template letter at page 22 of the Court’s Practice Direction on in Judicial Review Practice Direction.
Step 2: Lodging your Application for Judicial Review
Lodging an application for judicial review is also known as initiating or issuing proceedings. This simply means that you file the required paperwork by sending it to the Court. Lodging these papers begins the formal proceedings. To make an application for judicial review, you must lodge the following paperwork with the Court.
1. An ex parte docket;
The Docket for an ex parte application sets out the name(s) of counsel acting on behalf of the applicant(s) and the order that the applicant(s) seeks from the Court: that leave be granted to the applicant to apply for judicial review of the particular decision. It also includes the date on which the application was lodged and must be signed by the applicant.
2. An Order 53 statement;
The Order 53 statement sets out all of the basic information about the proposed application for judicial review. The applicant must provide information on themselves, the proposed respondent, the decision, the relief sought – the order that the applicant wants to receive from the Court if their application is successful, and the grounds of the challenge. Many of these required details can be taken from the PAPL. This is another reason why it is important, and to your client or service user’s benefit, to invest time into crafting a thorough PAPL.
The Order 53 statement is a prescribed form and applicants must complete the relevant sections. In some applications for judicial review, the applicant may be required to include more than the basic information provided above. Page 27 of the Judicial Review Practice Direction provides a sample of the Order 53 statement which must be completed and lodged. This document shows the various sections which must be completed in each application.
If the applicant intends to apply for a Protective Costs Order, this should be included in the Order 53 statement. Protective Costs Orders limit the risk of an adverse costs order being made against an applicant in an application for judicial review. Protective Costs Orders are available in public interest cases and there are particular statutory rules in environmental cases.
3. Affidavits and exhibits.
An affidavit is a sworn statement provided to the Court. Affidavits are the means through which evidence is put before the Court in an application for judicial review. The affidavit will typically be sworn by the applicant, or, if the applicant is an organisation, one of its representatives. They are often written in a narrative style, explaining how the case has evolved and including a reference to the documents which demonstrate those developments to the Court. The affidavit, for example, would always include a paragraph to the following effect: “The Department of X made X decision on X date. See Tab 3.” This then admits the decision that is the subject of the application for judicial review into evidence, which allows the Court to look at that decision when it decides whether to grant leave.
The Judicial Review Practice Direction provides detailed information on the requirements of Affidavits and Exhibits at page 7.
Your solicitor will likely assemble the affidavit, but they will need your support to obtain all of the relevant information relating to the application for judicial review. It is essential that the affidavit contains all of the relevant information and evidence that the Court will need to see in order to make its decision. This may require making requests from government departments for documents that have been lost, obtaining expert report to support the applicant’s position, or identifying helpful publicly available information to support your case. PILS can provide financial support to its members to cover the costs of obtaining an expert opinion.
Lodging the ex parte docket, the Order 53, and the affidavit are required under Rule 3(2) of Order 53 of The Rules of the Court of Judicature (Northern Ireland) 1980.
The affidavit should also include the pre-action protocol correspondence exchanged between the parties.
In addition to lodging those papers with the Court, you must also serve those same documents on the party who will be the respondent in this matter. In many instances, this will be the government department or public body that made the decision. Service rules are technical, and it is important to comply with them strictly. The Judicial Review Practice Direction provides the requirements for serving documents on government departments and bodies.
Lodging and serving an application for judicial review does not mean that the matter will proceed. Remember, the Court must grant leave (permission) for an application for judicial review to proceed. When you lodge these documents, this amounts to lodging an application for leave to bring an application for judicial review.
Step 3: Obtaining Leave from the Court
The next step in the proceedings is for the Court to advise you whether they have granted leave. The Court will determine your leave application in one of three ways:
The Court may determine leave “on the papers”. This means that the Court will make its decision based on the information contained in your application for judicial review without any form of hearing.
The Court may determine leave at an ex-parte hearing. This means that the Court can hold a hearing without the presence of both parties. The applicant will always be present, so in practice, the Court would not alert the respondent of the hearing. Determining leave on this basis is likely to be reserved for cases of exceptional urgency or where the case has a special or compelling feature.
The Court may, at its discretion, invite the proposed respondent to provide a written response to the applicant’s case, as set out in the lodged papers. This will provide the respondent the opportunity to provide its view on whether the Court should grant leave.
The Court may determine leave at an inter-partes hearing. This means that the Court will invite all of the parties to the proposed application for judicial review to attend a hearing which will help the Court decide whether to grant leave. The parties are likely to be given the opportunity to make oral submissions on the issue of whether leave should be granted.
When deciding whether to grant leave, the Court will consider the case’s arguability and whether any of the discretionary bars set out above preclude it from hearing the matter. The test on leave is whether there is an arguable case with a realistic prospect of success and which is not subject to a discretionary bar. Remember, the applicant bears the burden in an application for judicial review. The applicant, when lodging its application for judicial review, must satisfy the Court of these two elements.
If the Court does not grant leave, you can appeal that decision to the Court of Appeal under Rule 10 of Order 53 of The Rules of the Court of Judicature (Northern Ireland) 1980.
Step 4: Once Leave has been Granted
If leave is granted, the applicant must next prepare and lodge a Notice of Motion with the High Court. A Notice of Motion notifies the respondent that leave was granted. Your Notice of Motion should specify the grounds on which the Court granted leave and the relief that you seek (the order that you want the Court to make if you are successful).
An applicant must issue a Notice of Motion within 14 days of the High Court granting leave. If you fail to issue the Notice of Motion within this timeline, leave will lapse and you must apply for either an extension or a further grant of leave. The Court may also make an adverse costs order against you if you fail to meet a deadline. Cost orders are explored fully this toolkit here.
Once leave is granted, the judge will timetable the application for judicial review. This means that the judge will set out the parties’ deadlines to complete each stage in the application for judicial review: the respondent’s evidence, any rejoinder, both parties’ skeleton arguments, and the agreed bundle of authorities.
Step 5: Bundles of Documents
After leave is granted, the bundle that the applicant submitted for the leave application, as long as it complies with the rules, becomes the applicant’s bundle for the substantive hearing. However, the applicant will have to amend and add documents to this bundle.
A bundle for the substantive hearing is called a trial bundle, and must consist of:
- The Order 53 statement, in final form, showing any amendments in colour
The applicant must amend its Order 53 statement to reflect the grounds that it will be advancing in the substantive application for judicial review. This will be necessary where the Court granted leave only on some of the grounds advanced or where the applicant has decided to abandon grounds.
- The Notice of Motion
- All Orders/directions that the parties have received from the Court throughout the proceedings, including orders arising from case management reviews
- Skeleton Arguments
The applicant must provide skeleton arguments within 14 days of providing any rejoinder to the respondent’s affidavit and evidence, or as set out in the timetable. Skeleton arguments are a summary of the arguments that the party will make before the Court.
- Other documents may be appropriate in particular, fact specific, circumstances.
The respondent must provide its bundle, containing the same information, to the Court within 14 days of the date on which the applicant files their bundle.
Step 6: Hearing
This next step is the event that most litigants will be waiting for: the hearing. The length of the hearing will depend on the substance of the application for judicial review. A hearing in an application for judicial review can last anywhere from 3 hours to 4 or 5 days, or even longer in some cases. The hearing will provide the parties the opportunity to explain, expand on, and respond to questions from the Court on their skeleton arguments. Remember, the applicant bears the burden of proving the ground(s) that she is alleging.
As you can see, a lengthy and work-intensive process precedes any hearing in an application for judicial review. Unlike other hearings, calling witnesses is very rare in an application for judicial review. The hearing will usually proceed based on the evidence that the parties included in their respective affidavits.
Judges typically ‘reserve’ the judgment at the end of a hearing. This means that the judge will not announce the outcome of the hearing at the end of the proceedings. She will instead take time to consider her decision, and deliver her judgment in a written document at a later date.
Step 7: Costs
In most instances, the Court will make a Costs Order after delivering its judgment. The different costs orders that the Court may make are covered in detail in the costs section of this toolkit.
After the formal proceedings are over
Proceedings do not necessarily end once the High Court delivers its judgment. Parties to an application for judicial review have a right to appeal the High Court’s decision to the Court of Appeal. The appellant can initiate an appeal by serving and lodging a Notice of Appeal. That Notice of Appeal must identify the alleged errors in the High Court’s decision. An appeal must be lodged within 6 weeks from the date of the High Court’s decision.
Either party is entitled to appeal the High Court’s decision. This means that you could be successful on judicial review and then have to expend the resources to defend that decision on appeal. This is another risk that your organisation and your client or service users should be aware of before pursuing an application for judicial review. Your organisation cannot control at what stage legal proceedings will end, and appeals can cost a great deal of time and money.
Implementing the Decision
Remember, the outcome of a successful judicial review is often a judgment quashing the decision so that it must be taken again by the public body. You will have to cooperate with the public body’s decision-making process and timeline after you receive a positive decision from the High Court. Depending on the nature of the decision, it can add months or years to the judicial process, and there is no guarantee that the body will give the decision that you are hoping for.
Is the applicant fully informed?
If your organisation is supporting an individual applicant through the judicial review process, it is important that they understand the commitment that they are making when they choose to pursue an application for judicial review.
- Do they know that the judge in an application for judicial review can only decide whether the public body acted unlawfully and cannot substitute her decision for the body’s decision?
- Do they know that the proceedings will be open to the public? Are they comfortable with this?
- Have they considered the implications that bringing these proceedings may have on their emotional and mental health?
If your client or service user has concerns about their name being used in the proceedings, they can ask the Court to grant an anonymity order. If the Court grants an anonymity order, the applicant’s name will be not be used in the written proceedings, and the judge will typically also require that her name not be used in open court on the day of the hearing. Granting an anonymity order is a matter for the Court’s discretion, and a client should be advised that the Court operates on the basis of a strong presumption in favour of ‘open justice’. The applicant can include her intention to request an anonymity order in the Order 53 statement when requesting leave to bring an application for judicial review. It is important to know that, even if this order is granted, the hearing will remain public but that the applicant’s name will not be used.
Are you prepared for the time investment of a legal challenge?
Bringing an application for judicial review is a lengthy process. An average High Court case could take 9 months to 1 year to be completed, at minimum. The timelines during this process are very tight. This means that for these months you will need to be on-hand to assist your solicitor with any information that they need to effectively present your case. Any communication that you have with your solicitor during this process will increase the costs of the proceedings. Remember, the applicant bears the onus of proving the alleged ground of judicial review, so any application must be meticulous and very detailed to establish a breach.
Do we have sufficient funds to bring an application?
Judicial review is an expensive process. We explore the breakdown of costs and the ways that PILS can support public interest litigation in detail in the costs section of this toolkit. While there are supports available, it is important to remember that, as an applicant or the organisation supporting the applicant, you ultimately bear the responsibility if, for some reason, support is not available. Does the applicant or your organisation have the funds to support this litigation, or can you obtain those funds, if other support is not available to you?
Summary of Advantages and Disadvantages of Judicial Review
Advantages of Judicial Review
Disadvantages of Judicial Review
|Forces government to and public bodies to look at a particular issue||Not universally appropriate – it must be a review in relation to a public body and applicant must not be barred|
|Addresses public interest issues||Costly – requires great time and financial resources|
|Provides independent judicial oversight||Limited scope – the Court addresses the narrow question of whether there was an error in the public body’s decision|
|Can assist with policy and lobbying – particularly useful where there is no political will to address the issue otherwise||A successful application for judicial review will only require the public body to make a new decision|