Judicial review

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Overview
Judicial review is becoming an increasingly
popular means of challenging decisions with
a significant public element. This guide seeks
to answer a number of key questions relating
to judicial review. Topics covered include:

What is judicial review?

Why is judicial review relevant to my

business?

Who may be the subject of a judicial

review?

Who may apply for judicial review?

What is the role of third parties in judicial

review?

What can be judicially reviewed?

What are the grounds for applying for

judicial review?

What remedies are available in judicial

review proceedings?

What are the procedural requirements for

judicial review?

What are the five key points I should

remember about judicial review?

This publication is not intended to be a comprehensive review of all

developments in the law and practice, or to cover all aspects of those
referred to. Readers should take legal advice before applying the
information contained in this publication to specific issues or
transactions. For more information please contact us at Ashurst LLP,
Broadwalk House, 5 Appold Street, London EC2A 2HA
T: +44 (0)20 7638 1111 F: +44 (0)20 7638 1112 www.ashurst.com.
Ashurst LLP and its affiliates operate under the name Ashurst. Ashurst
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www.ashurst.com.
Ashurst LLP 2014 Ref: 9095645 April 2014

Judicial review

Judicial review
1.

What is judicial review?

Judicial review is the principal mechanism used by the courts to police the exercise of public law functions. This is
a constitutionally important aspect of English law. It seeks to ensure that bodies exercising public law functions
act lawfully and fairly and do not abuse their powers.
There are a number of common misconceptions about judicial review. It is important to be aware that:

judicial review is not concerned with the merits of decisions. It focuses on the process by which
decisions were made and actions taken; judicial review is not confined to reviewing the decisions
of public bodies. Any party exercising a "public function" may be subject to judicial review proceedings;
and

judicial review is a remedy of last resort. It is only available where all alternative avenues of
challenge or appeal have been exhausted.

2.

Why is judicial review relevant to my business?

Judicial review has been described in one Government publication as "a growth industry". In 2000, 4,250 judicial
review applications were made but by 2011 this number had increased to 11,000. Although largely due to
immigration and asylum matters, judicial review is increasingly used in the commercial sphere. This trend is
likely to continue as businesses face greater regulation and administrative oversight.
In recent years Ashurst has been involved in judicial review proceedings in the healthcare, telecommunications,
transport, real estate/planning, energy, financial services, tobacco, media, tax and EU/Competition sectors.
Businesses may wish to challenge decisions by means of judicial review, intervene in judicial review proceedings
which are of relevance to them, or may even be subject to an application for judicial review.

3.

Who may be the subject of a judicial review?

The first question that is likely to emerge when judicial review proceedings are under consideration is whether
the party which has done something which may give rise to a challenge is susceptible to review.
The definition of "judicial review" in the Civil Procedure Rules governing English court proceedings (CPR) refers to
"a decision, action or failure to act in relation to the exercise of a public function"1. It is significant that the
definition focuses on the nature of the function being performed rather than the body performing it. In reality the
category of bodies whose functions may be challenged is constantly evolving.
The courts have adopted a flexible approach to determining whether a body is subject to judicial review. There is
no single test.
The following characteristics have been considered relevant to whether an act or function can be reviewed.

1
2

The "but for" test: in other words, whether, but for the existence of a non-statutory body, the functions
exercised by such body would inevitably be regulated by statute. Bodies which have been considered
amenable to judicial review using this test include the Advertising Standards Authority2 and the Takeover

CPR 54.1.
R -v- Advertising Standards Authority Ltd, ex parte the Insurance Service Plc [1990] 2 Admin LR 77.

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Judicial review

Panel3. However, the Football Association's decisions escaped review as the court held that if the Football
Association did not exist, the state would not have found it necessary to perform its functions 4.

Statutory "underpinning": where the government has encouraged the activities of an organisation by
providing "underpinning" for its work, or the body was established under the authority of the government,
this can constitute grounds for a body to be considered to be exercising a public function. However, the
fact that a body is recognised in legislation (as, for instance, the Football Association was in the Football
Spectators Act 1989) is not sufficient to bring its activities within the remit of public functions.

Extensive or monopolistic powers: the fact that a body exercises extensive or exclusive functions may
be a relevant factor. The Takeover Panel was described as having "a giant's strength" 5 . However the
exercise of extensive power in the private sector is not necessarily sufficient and the number of people
affected or the seriousness of the impact of a decision are not necessarily conclusive6.

The result of the multiple tests employed by the courts and the flexible approach taken is that certain decisions
which might not necessarily be considered likely to be appropriate for judicial review have been reviewed by the
courts. These include those of:

the managers of a private psychiatric hospital because there was sufficient statutory underpinning and
public interest in the care of patients7;

a registered social landlord who operated within a sector which was permeated by state control and
worked side-by-side with public authorities and who received substantial public subsidies8;

an independent school regarding an assisted place9;

a privatised water company exercising statutory powers (although as a commercial organisation it was
entitled to act in the interests of its shareholders and not merely in the public good)10; and

an airport operator in relation to noise pollution and vibrations felt by local residents11.

4.

Who may apply for judicial review?

No application for judicial review may be made unless the court has granted leave. The court will only grant
leave if it considers that the applicant has sufficient interest in the matter to which the application relates12.
The courts have adopted an increasingly liberal approach to the "sufficient interest test". This is in recognition
that it is desirable that the courts allow, in appropriate cases, responsible citizens to bring claims for the benefit
of the public.
However, it should be remembered that the purpose of the test is to ensure that frivolous and vexatious litigation
against public bodies is avoided. The applicant's interest will be assessed in the context of all factual and legal
circumstances in the case, such as:

3
4
5
6
7
8
9
10
11
12

Strength and importance of the grounds of challenge: in a claim regarding the decision of the UK
Government to approve aid for the construction of a dam and hydro-electric power station in Malaysia, the

R -v- Panel on Takeovers and Mergers, ex parte Datafin plc [1987] QB 815.
R -v- Football Association Ltd, ex parte Football League Ltd [1992] 2 All 833.
ex parte Datafin plc.
ex parte Football League Ltd.
R (A) -v- Partnerships in Care Ltd [2002] EWHC 529 (Admin).
R (Weaver) -v- London & Quadrant Housing Trust [2008] EWHC 1377 (Admin).
R -v- Cobham Hall School, ex parte S [1998] ELR 39.
R -v- Northumbrian Water Ltd, ex parte Newcastle and Tyneside Health Authority [1999] Env LR 715.
R -v- Fairoaks Airport Ltd, ex parte Roads [1999] C.O.D. 168.
Section 31(3) of the Senior Courts Act 1981.

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Judicial review

judge said that "the merits of the challenge are an important, if not dominant, factor when considering
standing"13.

Proximity of the decision to the claimant: a claimant who challenges a decision which interferes
directly with his personal right will clearly have standing to bring a claim for judicial review. A direct
financial or legal interest in a matter is not required. The treatment of competitors by a public body may
also give rise to sufficient interest. In one case ICI were found to have standing to seek judicial review of
the way the Inland Revenue proposed to value business goods used by Shell, Esso and BP 14. ICI alleged
that this would have given its competitors an artificially favourable taxation regime.

Whether there is an alternative remedy: the courts have, on numerous occasions, made it clear that,
in the absence of exceptional circumstances, permission to proceed with a claim for judicial review will be
refused where a claimant has failed to exhaust other possible remedies. Such remedies have included a
statutory complaints procedure, the possibility of bringing a private prosecution and other statutory
mechanisms.

5.

What is the role of third parties in judicial review?

Judicial review allows for the involvement of parties other than the claimant and the defendant. This reflects the
role of judicial review as a mechanism for public accountability rather than bipartite dispute. There are two
principal categories of third party who may participate in judicial review.

An "interested party" is "any person (other than the claimant and defendant) who is directly affected
by the claim" 15 . The "directly affected" person must be "affected without the intervention of any
intermediate agency". So, for example, the application of certain tobacco companies to be interested
parties in an action against the Legal Aid Board's refusal to grant legal aid for personal injuries actions
against them was refused16 . Interested parties are parties to the claim and may therefore appeal the
judgment of the court.

An "intervener" is any person granted permission (a) to file evidence or (b) to make representations at
the hearing of the judicial review17. Generally the court will grant permission if the interveners, through
their expertise, are likely to be able to assist the court in understanding either the legal issues in question
or the factual basis of the claim. In recent years there has been a striking increase in interventions in
judicial review. Interveners have included campaign groups, government departments and companies
indirectly affected by the outcome of the review. It should be remembered, though, that intervention may
have costs consequences for the intervening party18.

6.

What can be judicially reviewed?

The most common target for judicial review is a "decision", often communicated in a decision letter. However the
scope of "targets" for judicial review is very broad. There have been successful applications for permission to
bring judicial review in respect of primary legislation, subordinate legislation, policies and schemes, proposals,
guidance and opinions.
A claim will often involve several potential connected targets. An example of this would be a planning resolution
and consequential planning permission.
There are certain claims which the courts have traditionally not considered. A claim may fail if it is felt to lack
substance or materiality. The courts have always been mindful of the fact that proceedings should be

13
14
15
16
17
18

R -v- Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 All ER 611.
R -v- Attorney General, ex parte ICI Plc [1987] 1 C.M.L.R. 72.
CPR 54.1.
R -v- Legal Aid Board, ex parte Megarry [1994] C.O.D. 468.
CPR 54.17.
R -v- Central Criminal Court, ex parte Francis & Francis [1989] AC 346.

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Judicial review

proportionate to the issues involved and the remedy sought. They are disinclined to entertain cases which are
based on hypothetical or academic issues.
Additionally, the courts are reluctant to entertain challenges to decisions relating to the internal procedures of
the United Kingdom Parliament and challenges to decisions of the superior courts of England and Wales (e.g. the
High Court, Court of Appeal and Supreme Court). Challenges to decisions relating to the validity of Acts of
Parliament have traditionally been outside the remit of judicial oversight although there are certain areas, such
as compliance with European Community law, which the courts may investigate.
The courts have also shown an unwillingness to pass judgement on certain issues such as national security and
economic policy.

7.

What are the grounds for applying for judicial review?

There have traditionally been three grounds for judicial review. These are illegality, irrationality, and
procedural impropriety. These categories are not exhaustive nor mutually exclusive.

Illegality
The most obvious example of illegality is where a body acts beyond the powers which are prescribed for it. In
other words, it acts ultra vires (a concept imported from company law). There is a fundamental hierarchy in
English law which comprises (1) European legislation, (2) primary legislation, (3) subordinate legislation and (4)
decision-making. Illegality can occur where any of these is inconsistent with the parameters imposed by a
superior source of law. In April 2013, Npower successfully challenged Milton Keynes Council's decision to
implement a new planning document that would introduce minimum separation distances between wind turbines
and residential properties on the basis that the document was in conflict with the existing local plan and national
legislation on wind energy19.
Decisions taken for improper purposes may also be illegal. So, for example, the decision of a council not to do
business with Shell on the grounds that Shell had interests in apartheid South Africa was held to be unlawful20.
While it would have been legitimate for the decision to be taken merely on the basis that it would improve race
relations in Lewisham, in this case it had also been taken to exert pressure on Shell to end its involvement in
South Africa. This constituted an improper purpose.
A further category of illegality is where a body either abdicates or delegates responsibility for a decision or
impermissibly fetters its discretion. It has been accepted that it is a practical necessity of administration that
responsibility be devolved (rather than delegated) in certain cases (so, for example, it is permissible for a duly
authorised civil servant to exercise a power granted to his Minister)21. However, a body may not surrender its
decision-making responsibilities to another body. Similarly, a body must not blindly follow policy guidelines
where it is required to exercise its discretion; it must maintain an open mind.
Illegality also extends to circumstances where the decision-maker misdirects itself in law. When exercising a
discretionary power, a decision-maker may take into account a range of lawful considerations. If the exercise of
the discretionary power has been influenced by considerations that cannot lawfully be taken into account, or by
the disregard of relevant considerations required to be taken into account, a court will normally find that the
power had been exercised illegally.

Irrationality/Unreasonableness
One of the most well known grounds of challenge is on the basis that a decision is irrational or unreasonable.

19
20
21

R (RWE Npower Renewables Ltd) -v- Milton Keynes Council [2013] EWHC 751.
R -v- Lewisham London Borough Council, ex parte Shell UK Ltd [1988] 1 ALL ER 938.
Carltona Ltd -v- Commissioner of Works and Others [1943] 2 All ER 560.

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Judicial review

In the leading case, a local authority granted a cinema licence pursuant to legislation which granted it a
discretion to impose such conditions as it saw fit 22 . A licence was granted subject to the condition that no
children under fifteen years of age should be admitted to Sunday performances with or without an adult. It was
held that the authority had not acted unreasonably. The court was entitled to investigate only whether the
authority had taken into account matters that it ought not to, or had disregarded matters that it ought to have
taken into account.
The courts have raised the bar for irrational or unreasonable behaviour. This is because they do not want to stray
into territory which requires them to pass judgement on the merits of decisions rather than the process by which
they have been made.
One formulation of the test is that an irrational or unreasonable decision must be "so outrageous in its defiance
of logic or accepted moral standards that no sensible person who had applied his mind to the question to be
decided could have arrived at it"23.
There has been criticism of the extreme formulations of the test but it remains the case that it is difficult to bring
a successful judicial review on the basis of irrationality or unreasonableness.

Procedural impropriety
English law imposes minimum standards of procedural fairness. This concept is founded upon the principle of
natural justice. The "twin pillars" of procedural impropriety have been described as "the rule against bias" and
"the right to be heard"24. The right to be given reasons for a decision is also an integral element of procedural
fairness.
While actual bias is relatively rare, it is a conclusive factor in disqualifying a decision-maker. More common is
where apparent bias is alleged. The courts have adopted a test of whether there is a "real possibility" of bias. In
other words, "whether the fair-minded and informed observer, having considered the facts, would conclude that
there was a real possibility that the [decision] was biased"25.
Thus, where the chairman of a planning committee had a close relationship with developers, apparent bias was
found26. However, an adjudicator of a construction dispute was not apparently biased in circumstances where he
had ruled previously on the dispute and where he had engaged in a telephone conversation with the solicitor of
one of the parties27.
The right to be heard is fundamental in criminal and asylum cases, but also extends to commercial situations. A
flawed consultation process restricting the right to be heard is now a common ground for judicial review. In
many situations, a decision maker will be required to consult by statute, and any flaw in that process may vitiate
the final decision.
In March 2013, HS2 Action Alliance, a not-for-profit organisation working with other action groups opposed to
the Government's proposal to build the "High Speed 2" rail link, were successful in their claim that the
consultation process for the compensation scheme for blighted properties, on or near the route of HS2, was
flawed28. The court held that the consultation period was so unfair as to be unlawful. The Government had failed
to provide adequate information to consultees on the practical implications of the proposed schemes and had
failed to conscientiously consider the claimants' consultation response.

22
23
24
25
26
27
28

Associated Provincial Picture Houses Ltd -v- Wednesbury Corporation [1948] 1 KB 223.
Council of Civil Service Unions -v- Minister for the Civil Service [1985] AC 374.
Kanda -v- Government of Malaya [1962] AC 322.
Magill -v- Porter [2001] UKHL 67.
R (Ghadami) -v- Harlow District Council [2004] EWHC 1883 (Admin) [2005] LGR 24.
AMEC Capital Projects Ltd -v- Whitefriars City Estates Ltd [2004] EWHC 393 (TCC).
R (Buckinghamshire County Council and Others) -v- Secretary of State for Transport [2013] EWHC 481.

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In relation to the right to reasons, there is a large body of case law that supports the existence of this general
duty29. There is an obvious rationale for reasoned decisions: it enables claimants to assess whether a decision
has been made for illegal or irrational reasons.

Legitimate expectation
Allied to the ground of procedural impropriety is the notion of "legitimate expectation". This is sometimes
considered as a discrete ground for judicial review and arises where a party has been given an expectation that a
body will act in a certain way, either because of express statements from the authority, or from prior conduct.
It is likely that for a legitimate expectation to arise there will need to have been a clear promise or evidence of a
regular practice30.
The challenge to the Government's decision to scrap the "Building Schools for the Future" programme is an
example of a successful claim on the basis of legitimate expectation. The issue in this case was that the
Government made its decision without conducting a consultation. The claimants, five local authorities, each of
whom had committed to building schools under the BSF programme, successfully argued that they had a
legitimate expectation to be consulted before the decision was made31.
The court held that, in view of the fact that the BSF programme had previously been run as a partnership basis
between central and local government, project-specific decisions could not lawfully be made abruptly without
some prior consultation.

A new ground: application of the Human Rights Act 1998

Detailed analysis of the provisions of the Human Rights Act 1998 is beyond the scope of this note. However,
section 6 (1) of the Act provides that "it is unlawful for a public authority to act in a way which is incompatible
with a Convention right". This may provide an independent ground for judicial review.

8.

What remedies are available in judicial review proceedings?

Judicial review is not intended to provide a means for the merits of decisions to be challenged. Because of this
the following remedies are available:

mandatory orders require the body under review to do something;

prohibitory orders restrain or prevent the body from doing something; and

quashing orders set aside the decision of a body on the basis that it is invalid32.

A successful judicial review will often result in a quashing order and an order that the matter be remitted to the
decision-making body for reconsideration. It is important that it is understood that this will not necessarily result
in a different outcome from the original decision. Where the original decision was unreasonable or unlawful, then
the same outcome may be precluded. However, where there has been a procedural defect it is possible that the
same decision will be reached again. In certain instances, a successful judicial review may leave a claimant in a
worse position than it was in originally.
It is a principle of judicial review that remedies are discretionary. So a claimant may be able to show that a
decision-maker has acted improperly but the court may decline to grant the remedy sought.

29
30
31
32

North Range Shipping Ltd -v- Seatrans Shipping Corp [2002] EWCA Civ 405; [2002] 1 W.L.R. 2397.
Council of Civil Service Unions.
Luton Borough Council and others -v- Secretary of State for Education [2011] EWHC 217.
Section 31 Senior Courts Act 1981.

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Judicial review

The court may make a declaration or order an injunction where "it would be just and convenient" in "all the
circumstances of the case"33.
There is no right in judicial review to claim damages for losses caused by unlawful administrative actions. It is
only possible to receive damages in judicial review claims if there is another established cause of action, separate
to the ground for judicial review, such as breach of statutory duty, misfeasance in public office or a private action
in tort. For example, where a decision-maker takes into account an irrelevant decision, as well as providing
grounds for quashing the decision on the basis of illegality, this may create a right to damages for misfeasance in
public office if it can be proved that the action complained of was done knowingly or maliciously. Where a
separate cause of action accrues, the claim for judicial review may include a claim for damages to avoid the need
to bring parallel proceedings.
While damages are not available that is not to say that there is no financial gain to be had from bringing a
judicial review claim. The publicity associated with a judicial review claim will often encourage a public body to
retract a decision or settle the dispute.

9.

What are the procedural requirements for judicial review?

The detailed procedure for making a claim for judicial review is beyond the scope of this Quickguide. A number of
key points are set out below:

Judicial review proceedings have two stages. A party must apply for permission (or leave) to the court to
proceed with its claim. If permission is granted, the parties then prepare for the substantive hearing of
the claim.

There is a pre-action procedure applicable to judicial review. A claimant must send a Letter before
Claim to a potential defendant. The defendant should then respond with a Letter of Response. Failure to
comply with the pre-action procedure may have costs consequences.

The CPR has been amended to provide for a new Planning Court.34

All claims for judicial review are brought in the Administrative Court, a division of the High Court and
part of the Queen's Bench Division. However, from 6 April 2014 all planning-related judicial reviews and
statutory challenges should be issued in the new Planning Court which will replace the planning fast track
in the Administrative Court.

A claim must be brought promptly and, in any event, not later than three months after the grounds to
make the claim first arose. Under reforms introduced and effective from 1 July 2013, this time frame is
reduced to 30 days for procurement decisions and six weeks for planning decisions.

A claimant is under a duty to make full and frank disclosure of all relevant facts to the court. This
extends to providing the court with information on any impediments to an application for judicial review
such as the existence of an alternative remedy or the claimant's delay. The duty of disclosure also
extends to the defendant.

A judge will usually consider the claimant's application for permission on paper. If permission is
refused, the claimant has the right to request an oral hearing by way of appeal. Under reforms introduced
and effective from 1 July 2013, a claimant is denied such an oral hearing if the court, having reviewed the
application for permission, determines the claim to be "totally without merit".

If permission is given the defendant or any other person who has been served with the claim (such as an
interested party) and who wishes to contest the claim must file detailed grounds for contesting the
claim and any written evidence.

33
34

Section 31 Senior Courts Act 1981.

The Civil Procedure (Amendment No. 3) Rules 2014 (SI 2014/610).

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Judicial review

Because judicial review does not generally require the resolution of factual disputes, disclosure is rarely
ordered in judicial review claims.

A judge will usually consider the substantive aspects of the matter at a hearing. Cross-examination of
witnesses is rare at the hearing which is generally taken up with oral argument.

The courts in judicial review proceedings have exercised a degree of discretion in awarding costs and
have not merely followed principles employed in private law. As in other proceedings, however, the
general rule is that the loser pays the winner's costs.

The court has the power, in judicial review proceedings, to make an order which assures a claimant or
defendant at an early stage in the proceedings that either no or limited costs will be ordered against it
regardless of the eventual outcome. This is referred to as a protective cost order, or "PCO". PCOs are
ordered only in exceptional circumstances35.

10. What are the five key points I should remember about judicial
review?
1.

Judicial review is concerned with whether decisions are taken lawfully and fairly. It is not concerned with
the merits of decisions.

2.

Public bodies and bodies exercising administrative powers with a significant public law element may be
subject to judicial review.

3.

A person with a sufficient interest in a decision may apply for a judicial review. This requirement is
interpreted liberally.

4.

The traditional grounds for judicial review are illegality, irrationality and procedural impropriety. These
grounds may overlap and are flexible.

5.

Judicial review proceedings should not be commenced where there is a suitable alternative remedy. Any
proceedings should be commenced as promptly as possible.

35

The principles applied were set out in R (Corner House Research) -v- Secretary of State for Trade and Industry [2005] EWCA Civ 192 and are
known as the "Corner House Principles". To order a PCO the court must be satisfied that:
(a) the issues raised are of general public importance;
(b) the public interest requires that those issues should be resolved;
(c) the applicant has no private interest in the outcome of the case;
(d) having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved it is
fair and just to make the order; and
(e) if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.

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Judicial review

Judicial review: the key questions

Is the defendant
exercising a public
function?

Does the claimant have

sufficient interest?

Is there a "decision"
which may be
reviewed?

Are there grounds for

judicial review?

Has a body acted

illegally?

Has a body acted

unreasonably?

Has there been

procedural impropriety?

Has there been a

breach of the Human
Rights Act?

Is there an alternative
remedy?

Are any of the remedies

available in judicial
review appropriate?

Can a claim be made

promptly/within three
months of the relevant
decision?

Page 9

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Ashurst or one of our contacts listed below.
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Dispute resolution managing partner
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E: simon.bromwich@ashurst.com
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