Civil Justice Council publishes recommendations to reform Judicial Review Pre-Action Protocol

The Civil Justice Council (CJC) has published its Phase Two Report on Pre-Action Protocols, which includes specific recommendations regarding the Judicial Review Pre-Action Protocol.

All civil litigation is subject to a Pre-Action Protocol which sets out the parties’ obligations before Court proceedings are commenced. The CJC states that “pre-action protocols play a crucial role in facilitating dispute resolution”. The recommendations regarding the Judicial Review Pre-Action Protocol will be of interest to any litigant contemplating starting Judicial Review Proceedings or party receiving a Judicial Review Letter Before Claim.

I gotta have (good) faith, faith, faith

The CJC recommends that the Judicial Review Pre-Action Protocol be amended to oblige the parties to apply in good faith the following five key principles:

1. Starting Court proceedings should be a last resort.
2. There must be an early exchange of relevant information.
3. The parties should behave reasonably and proportionately.
4. The parties must actively cooperate with each other to achieve the overriding objective.
5. The parties should take reasonable steps to try to resolve or narrow their dispute.

In 2021, the CJC’s Interim Report suggested that in all Pre-Action Protocols there should be a good faith obligation to try to resolve or narrow disputes. The Phase Two Report now recommends that in Judicial Review cases there should be an enhanced good faith obligation to apply the above principles.

Duty of Candour

An important element of these principles is the ‘duty of candour’. Any party to a claim for Judicial Review has a duty of candour, which is a duty to provide the Court with the information that’s relevant to the issues and ensure that the Court has a true and comprehensive picture of the decision-making process that’s the subject of the case.

In a 2022 case, the Divisional Case determined that the duty of candour “applies to every stage of the proceedings, including letters of response, under the pre-action protocol…”. The CJC recommends that the enhanced good faith obligation in the Pre-Action Protocol should include the duty of candour accordingly.

Alternative dispute resolution

Some of the CJC recommendations that have received the most attention are around alternative dispute resolution (ADR) such as mandatory mediation initiatives.

In Judicial Review cases, the CJC acknowledges that: “ADR in judicial review cases is rare. There are several reasons for this including that judicial review often involves a binary dispute on a legal issue which only the court can resolve. Some cases are so urgent ADR would impede, rather than facilitate, timely resolution”. 

Despite this, we’ve successfully resolved Judicial Review disputes by ADR and believe that most parties in Judicial Review cases will welcome the CJC’s recommendation that the Pre-Action Protocol should prompt the intended Claimant to confirm in its Letter Before Claim that ADR has been considered and prompt the proposed Defendant in its Letter of Response to indicate whether it’s willing to engage in ADR. 

The Court will consider whether case management directions should include provisions for ADR.

Pre-action costs

One of the advantages of the parties to a Judicial Review case attempting ADR pre-action is that settlement avoids the costs of dealing with Court proceedings.

The CJC has considered whether to recommend a new summary procedure for determining cost disputes in Judicial Review cases where settlement is agreed at the pre-action stage but there’s a dispute over the costs incurred. 

Referring to not wanting to deter the parties from attempting settlement, the CJC states that it doesn’t consider such a summary cost procedure to be necessary. The parties to any Judicial Review case should seek to resolve cost disputes as part of any settlement.

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