Top Tips: Bringing a Judicial Review

Judicial review is a way to challenge the decisions, actions or inactions of a public body because it has not acted lawfully. It is a court process usually carried out in the Administrative Court, which is a branch of the High Court.

In a judicial review, a judge will examine the decision, action or inaction and decide whether the law has been correctly followed by the public body. In particular, they will consider the way in which the decision was made, not the decision itself. This means that if the court finds that the law was not followed, it cannot impose a new decision, but it does have a range of other powers, which are set out below.

The parties to a judicial review are the claimant (the person who is challenging the decision) and the defendant (the public body that made the decision). Other parties who may be affected by the outcome may also be allowed to be included as interested parties or those who may be able to assist the court may be able to 'intervene'.

When considering bringing a judicial review, there are a few questions you should be asking yourself, with input from your legal advisors.

Do you have grounds?

In order to bring a judicial review, you must have grounds to do so. The standard grounds for judicial review are:

• Irrationality – the decision, action or inaction was so unreasonable that no reasonable person acting reasonably could have made it (note that the threshold for irrationality is extremely high).

• Illegality – the decision, action or inaction was beyond the power of the authority that made the decision.

• Procedural impropriety or procedural unfairness – the decision, action or inaction was taken improperly (for example, without a fair hearing, with bias, or without proper notice).

These grounds are not exhaustive or mutually exclusive, and a court may permit a judicial review on other grounds such as:

• Proportionality – the decision, action or inaction is a disproportionate means of achieving an otherwise legitimate aim.

• Misdirection of law – the government has misdirected its officials as to the application or effect of the law.

• Incompatibility with human rights law – public bodies are bound by human rights law, and a decision, action or inaction which is incompatible with those obligations could be judicially reviewable.

• Legitimate expectation – a party has been given an expectation that a body will act in a certain way, either because of express statements or prior conduct and the body fails to act in that way, causing the claimant detriment.

• Fettering of discretion – a public body applies its powers over-rigidly, or has a policy to exercise discretion more narrowly than the relevant legislation contemplated.

Is it the type of thing that can be judicially reviewed?

The category of things that can be judicially reviewed is wide. It is any decision, act or failure to act by any public body.

Are you dealing with a public body?

Judicial review only applies if the decision, action or inaction is that of a public body.

There is no single answer to whether a body is a public body. Rather, the courts will consider the legal source of the power or function exercised by the decision-maker and the characteristics of that function. If the legal source of the power is statutory, the court will presume that the body is a public body. If there is no statutory source of power, the functions may nevertheless be public in character, such that the body’s decisions, actions and inactions are judicially reviewable.

In relation to animal protection, the decision-maker to be challenged will often be an obvious public body, such as a local authority or a government department. On the other hand, farms, veterinary service providers and land management companies are unlikely to be public bodies.

Do you have “standing”?

Not just anyone can bring a judicial review. The court will require you to show that you have “standing”, which will usually involve showing that you are affected in some way (such as being the subject of or affected by the decision, action or inaction). Alternatively you might have standing if you are an organisation with sufficient interest in the issue.

Do you have permission?

Unlike many other types of legal procedure, you will need to seek the court’s permission to proceed with a judicial review. Prior to seeking permission, you will also need to take certain pre-action steps, including sending a pre-action letter to the public body.

When applying for permission, your legal team will help you put together certain documents, including a claim form and a statement of facts and grounds, with supporting evidence. These papers will be served on the public body and the court. A judge will review the papers and most likely grant or refuse permission.

Are you within time?

A claim for judicial review must be brought “promptly”, and ordinarily within three months of the decision, action or inaction you want to challenge. Some types of judicial review must be brought sooner.

What are the possible outcomes?

The court can make one of the following orders:

• Quashing order – overturning the original decision and requiring the public body to remake the decision in a lawful manner. This may result in the public body reaching the same decision.

• Declaration of the law – clearly stating what the law is.

• Declaration of incompatibility with human rights law – stating that the decision, action or inaction was incompatible with human rights law.

• Prohibiting order – preventing a public authority from taking an unlawful decision or action it has not yet taken.

• Mandatory order – requiring a public authority to do something.

• Injunction – preventing an unlawful act or requiring a public authority to do something, at an early stage.

• Payment of damages – providing compensation, particularly where a public authority has violated your rights. Courts will only award these in certain, limited circumstances.

Do you have the funds?

The usual rule in a judicial review is that the loser pays the winner’s costs. This means that you will need to budget for both your own legal fees and also the other side’s legal fees in the event that you are unsuccessful.

You may have visibility of your own legal costs but it is difficult to predict what the other side’s will be. In some cases it may be possible to apply for a costs capping order, which would cap the amount of costs that each party could recover from the other in the event that they win.

Overall, judicial review can be very costly, running to tens of thousands of pounds in your costs alone; however, the benefit of a judicial review is that it is one court procedure that can deal with a systemic issue (for example an unlawful government policy), whereas other types of court processes (such as individual private prosecutions) can be very narrow and are unlikely to result in systemic change (save to the extent that new precedents or authorities may be set).

Do you have expert legal advisors?

Judicial review is a complicated area of law, so it is important that you have an expert team of legal advisors. At Advocates for Animals, we have unique experience in judicial review relating to animal protection and we regularly advise clients on these issues.

What should you do next?

Please note that this post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws please contact info@advocates-for-animals.com