Judicial Review

Our lawyers' experience includes:

The Blue Bag System

Instrumental in the judicial review brought against the Police in relation to the seizure and review of legally privileged material recovered during the execution of a search warrant. This judicial review was a precursor to the ‘blue bag’ system, which is employed to this day by the Police where any items considered to contain LPP material is isolated and reviewed by counsel/lawyers independent to the investigation regarding disclosure to the investigation.

Supreme Court & Tax Tribunal

In a current matter proceeding before the Supreme Court (and also involving associated proceedings in the Tax Tribunal), funding is being provided by an insurer who stipulated that the policy was limited to defending claims rather than commencing them. Accordingly, our proposal to also pursue judicial review in this matter wouldn't be covered. Through protracted discussions with the insurer, we were able to stress that the most cost-effective method for resolution would lie in judicial review — which although not technically covered by the policy, would nonetheless operate as a defence mechanism against the assessments raised by HMRC against the client, as it bore the strongest opportunity for disposal of the assessments in their entirety, saving the client over £2.5m and securing the viability of their business. Against that background, the insurer extended the funding to cover judicial review. These proceedings have led to an historic decision in our client’s favour at the Court of Appeal.

Property development company 

Acting on behalf of a leading property development company in an application for judicial review of HMRC’s interpretation and application of the relevant Income Tax (Construction Industry Scheme) Regulations 2005, which led to the issuance of determinations for around £5m. This is currently being appealed by HMRC to the Supreme Court following success at the Court of Appeal.

SFO challenge

Acted for Interested Third Party in a judicial review challenge against the Serious Fraud Office regarding its obligations to ensure that there was compliance with a deferred prosecution agreement and an analysis of legal and litigation privilege when interviews are conducted by third parties during an internal investigation. It was a key challenge not only in the terms of an associated ongoing Bribery Act prosecution but also in terms of the SFO’s position on legal professional privilege. 

Misconduct in a public office

Acted in a judicial review challenge to the issue of a summons (in a private prosecution) against a public official concerning misconduct in a public office. This was successful, with the summons being quashed and a declaration issued that the summons was unlawful.

FTSE 100 director

Acted on behalf of a former FTSE 100 director against the Insolvency Service in a high-profile prosecution that was ultimately discontinued. The issue focused on the Carltona principle.

Our lawyers' experience includes: 

• Acting on behalf of a governing body for sport in England (the defendant) who was challenged by a member (the claimant) over an email which stated that they couldn’t attend a panel meeting. The Court adopted our submissions, refused the claimant permission to proceed with judicial review and awarded our client its costs.
• Instructed by a disability charity when a local authority refused to continue with direct payments.
• Instructed by a London college when its decision to expel a student was challenged.
• Acting for a national supermarket chain in multiple related judicial reviews regarding permissions to build supermarkets that were challenged.
• Numerous planning judicial reviews against local authorities.
• Acting for Claimant in challenges over Natural England licences and consents to manage protected moorland sites including access rights and burning rights.
• Acting for National Gamekeepers Organisation in challenge against non-determination of a licence application by Natural England to manage predatory birds.
• Acting for the Plantagenet Alliance in its challenge against the Secretary of State for Justice regarding the burial location of the remains of Richard III excavated at a site in Leicester.
• Acting for an interested third-party refinery, opposing a challenge brought by Client Earth against the Environment Agency over the granting of permits to carry out refinery practices at client site on the Humber. The refinery supplied 20% of all UK petroleum products, including 11% of the UK’s road fuel. It was one of six major UK oil refineries and the world’s largest single producer of graphite coke and part of the UK Government’s Critical National Infrastructure. If successful, the challenge would have closed the site down. The judicial review was successfully opposed.

An application for judicial review is typically instigated by any individual or organisation who has been directly affected by the decision or action of a public body. 

An application for judicial review can be brought when a public body has made a decision, taken an action or failed to act in a way that’s alleged to be unlawful.

The grounds for judicial review generally fall into three categories:

1. Illegality

The decision-maker didn’t have the legal authority to make the decision or acted beyond their powers.

2. Procedural unfairness

The process by which the decision made was unfair or biased.

3. Irrationality

The decision was so unreasonable that no reasonable public body would have made it.

An application for judicial review must be brought promptly and in any event, within three months from the date of the decision or when the grounds for the challenge first arose. For certain types of cases (such as planning decisions), the time limit may be shorter.

To commence the judicial review process, the claimant must establish that they have a sufficient interest in the matter, the application is brought within the appropriate time limits and there are proper grounds for the review. They must also demonstrate that there’s no adequate alternative remedy available.

Decisions of private bodies can be subject to judicial review if they’re exercising public functions. The courts will consider whether the private body’s actions have a public element and whether they’re performing a role that’s typically carried out by a public body.

A judicial review focuses on the lawfulness of the decision-making process of a public body to ensure that the decision was made within the applicable legal framework and followed fair procedures. 

An appeal involves a higher court reviewing the decision of a lower court or tribunal to determine if there were errors in the application of the law or findings of fact.

Since the right to appeal is often lost if judicial review proceedings are issued, you should seek specialist legal advice to ensure that you’re fully informed of your options, as well as the possible outcomes and timescales.

Pre-action — exploring resolution

Before applying for judicial review, a letter should be sent to the decision-making body outlining the intended application, legal basis for the challenge, issues with the decision and remedy sought. The judicial review Pre-Action Protocol provides that the decision-maker should normally respond within 14 days.

Permission — seeking the court’s approval

If the issue isn’t resolved, an application to the court is made for permission to proceed with a judicial review. The court will then assess whether there is an arguable case for judicial review. If it’s satisfied, permission will be granted for the claim to proceed to a substantive hearing. This stage is normally determined on the papers filed at court and without a court hearing. 

Substantive hearing — arguing the case in court

If permission is granted, a full hearing is scheduled.

If permission is refused, you may renew your application for permission which may be determined as a standalone hearing or ‘rolled up’ so that if permission is granted, the court will move directly into a substantive hearing.

A party that's directly affected by a decision but didn’t make the decision itself should be included in the pre-action correspondence and served with the claim as an Interested Party. Such parties are able to participate fully in the judicial review proceedings if the Court grants them Interested Party status. 

A party that isn’t directly affected by the decision can still seek the court’s permission to be heard in the judicial review proceedings as an Intervener.

If the claimant is successful at the final hearing, the most common remedies include:

1. Quashing order

The decision is declared invalid, forcing the public body to reconsider it lawfully.

2. Mandatory order

The public body is ordered to take specific action, such as reconsidering an application within a specified period. These orders are relatively rare. 

3. Prohibiting order

The public body is prevented from taking an unlawful decision or action which hasn’t yet been taken.

4. Declaration

The court may issue a formal statement to clarify the law where there is a dispute.

5. Injunction 

This is a temporary order requiring a public body to either take a positive action or not take any further action until a final decision has been made in the case.

6. Declaration of incompatibility

This remedy is used where an Act of Parliament is found to contravene the Human Rights Act 1998. This invites MPs to change the law but isn’t binding on Parliament.

7. Damages

The court has limited discretion to order damages in cases where another form of legal remedy is also being sought, including when:

1. A breach of human rights under the Human Rights Act 1998 has been established.
2. A breach of rights under European Union Law has been established.
3. There's a right to damages under private law where the judicial review has established the unlawful act which now allows for compensation.

Any party that exercises a ‘public function’ can be subject to judicial review.

This includes: 

• HM Courts and Tribunal Service.
• Crown Prosecution Service (CPS).
• Serious Fraud Office (DFO).
• Police.
• HM Revenue & Customs (HMRC).
• Prison Governors.
• Environment Agency.
• Natural England
• Local authorities.
• NHS Trusts.
• Government departments.

If you’re successful, you can ask the court to make an order that the public body pays the costs you’ve incurred in pursuing judicial review proceedings. 

However, the court has a very wide discretion on the issue of costs and will take various factors into consideration when deciding whether to award costs to the successful party, as well as the amount of those costs. Such factors can include the conduct of the parties throughout proceedings.