The Jurisdiction of Judicial Review

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Claims for Judicial Review Procedure:

In civil proceedings, litigation begins when a claimant submits pleadings and pay a fee. Then, the defendant is served notice of the pleadings.

Permission:

The court’s permission to proceed is required in a claim for judicial review. [1] This is an additional hurdle the overcome than other civil law cases.

‘It is in the public interest that this procedure emphasises speed, certainty and the prevention of vexatious litigation.’ [2]

There is a success rate of less than 25%.

Time Limit:

Claims must be filed promptly and in no more than 3 months. [3]

Bringing a Claim (‘Standing’):

‘the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates’ [4]

Sufficient Interest:

In civil law, the interest is usually a personal interest to the claimant. This is not necessarily the case for judicial review claims.

‘The question of sufficient interest cannot . . . be considered in the abstract, or as an isolated point: it must be taken together with the legal and factual context. The rule requires sufficient interest in the matter to which the application relates’. [5] Courts look to wider implications, even if there is not direct personal interference, [6] including public interest. [7] Note, there are outliers. [8]

Human Rights Act 1998:

s7 – Those who bring a claim of an unlawful infringement on human rights by a public authority must be a victim of the unlawful act. This is an even stricter requirement.

‘Grounds’ for Claims:

Judicial Review Grounds [9]:

Illegality
Irrationality
Procedural Impropriety

‘Judicial review has, I think, developed to a stage today when ... one can conveniently classify three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’, the second ‘irrationality’, and the third ‘procedural impropriety’.’

Subject of Judicial Review (‘Jurisdiction’):

Executive and administrative decision makers, including local government, can be subject to judicial review cases.

A lot of public functions are now performed by non-public bodies. These bodies can be subject to judicial review if their function is of a public nature, even if it is a private body. [10] As long as the decision-maker is empowered by public law, they can be subject to judicial review by the courts.

In Chief Rabbi, it was questioned whether the decisions of a senior rabbi can be subject to judicial review. The court held that the decisions of the body must ‘not merely [be] a public but potentially a governmental interest’. Therefore, the Rabbi was not subject to review.

In Jockey Club, since members of a club had agreed to the nature of how decisions were made when they joined, the decisions of senior members of the club are not subject to review.

Procedural Exclusivity:

There are concerns over whether judicial review is the only means by which public bodies can be brought before the courts.

Judicial review ‘should not be exclusive in the sense that it would become the only way by which issues relating to the acts or omissions of public authorities should come before the courts.’ [11]

In O'Reilly v Mackman, the House of Lords established that there should not be other ways which public bodies are brought before the courts. This is to provide ‘protections against groundless, unmeritorious or tardy harassment that were afforded to statutory tribunals or decision-making public authorities.

Exceptions (where Public Bodies can be taken to Court, other than Judicial Review):

The public law issue is collateral to a private law case. [12]
When the public law issue is raised as a defence in ordinary civil proceedings. [13]
Where private law issues dominate the case. [14]

Curing Procedural Exclusivity [15]:

Establishment of Administrative Court
Provisions for cases to be transferred into and out of the judicial review process.

Remedies:

Discretionary writs (mandatory, prohibiting or quashing orders).
Injunction or declarations.
Rarely ‘may include a claim for damages, restitution or the recovery of a sum due but may not seek such a remedy alone’.

References:

[1] Civil Procedure Rules, Part 54(4) [2] Law Commission, Report on Administrative Law: Judicial Review and Statutory Appeal (1993) [3] Civil Procedure Rules, Part 54 [4] Senior Courts Act 1981 s31(3) [5] R v IRC, ex parte National Federation of Self Employed and Small Businesses [1982] AC 617 (Wilberforce LJ) [6] EG: R v HM Inspectorate of Pollution, ex parte Greenpeace (no. 2) [1994] 4 All ER 329 [7] EG: R v Secretary of State for Foreign Affairs, ex parte World Development Movement (‘Pergau Dam’) [1995] 1 All ER 611 [8] EG: R v Secretary of State for the Environment, ex p Rose Theatre Trust Co. [1990] 1 QB 504 [9] Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9 (‘GCHQ’) (Lord Diplock) [10] R v Panel on Take-Overs and Mergers, ex parte Datafin [1987] 1 All ER 564 [11] Law Commission Report [12] Mercury Communications v Director General of Telecommunications [1996] 1 WLR 48 [13] Wandsworth London Borough Council v Winder [1984] 3 All ER 976 [14] Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 A.C. 624 [15] Civil Procedure Rules (1998) Part 54

Cases Mentioned:

R v Chief Rabbi, ex parte Wachmann [1992] 1 WLR 1036

R v Jockey Club, ex parte Aga Khan [1993] 1 WLR 909

O'Reilly v Mackman [1983] UKHL 1, [1983] 2 AC 237