This is the sixth in our new series of Good Decision Making Guides for Public Bodies. These Guides highlight what is best practice in decision-making and offer simple and practical tips to reduce the risk of challenge to your decisions.
In this Guide, we look at what you can expect if a decision you make is challenged in the courts by way of judicial review.
WHAT IS JUDICIAL REVIEW?
As discussed in Guide 1, judicial review is a procedure that allows the High Court to review the manner in which a public body exercising a public law function made a decision. In judicial review proceedings, the Court is mainly concerned with the manner in which the body made the decision, rather than with the substance or the merits of the decision. In this way, judicial review differs from appeal.
The person or body challenging the decision is called 'the applicant'. The person or body who made the decision is called 'the respondent'.
HOW WILL I KNOW THAT MY DECISION IS BEING JUDICIALLY REVIEWED?
Applications for judicial review do not generally come as a surprise. The formal court procedure is usually preceded by correspondence from the person unhappy with the decision, indicating that he/she intends to challenge it.
Occasionally, you may be served with formal court papers, without any warning.
In either event, you should contact your lawyers straight away to discuss your next steps. Do not delay.
You may decide that the best course of action is to revisit the decision-making process and to correct the alleged flaw. You may come to the same decision as before, provided you follow fair and proper procedures. Alternatively, you may decide to contest the application.
CAN I IMPLEMENT MY DECISION IF JUDICIAL REVIEW PROCEEDINGS ARE INITIATED?
The commencement of judicial review proceedings does not, of itself, prevent you from implementing your decision. However, the applicant may ask the court for an order preventing you from implementing the decision, pending the full hearing of the case.
Even if the applicant does not do this, it may not be appropriate to implement the decision while the matter is before the court. This is something you should discuss with your lawyer at the outset.
IS THERE A TIME LIMIT WITHIN WHICH THE APPLICANT MUST BRING JUDICIAL REVIEW PROCEEDINGS?
A judicial review application must be brought "promptly", and in any event within three months of the date when the grounds for challenge first arose.
If the applicant misses the deadline, he/she can apply to the court for an extension of time. The court will usually grant an extension where:
- there is good and sufficient reason for doing so;
- the reason for the delay was outside the control or could not have been reasonably anticipated by the applicant; and
- there is no prejudice to the respondent or any other interested party.
HOW WILL THE APPLICANT START THE PROCESS?
The judicial review process consists of two stages. The applicant must first apply to the High Court for permission to challenge the decision. This is known as seeking leave to apply for judicial review. If leave is granted, the court will hear the application.
STAGE 1: THE LEAVE STAGE
The applicant will seek permission or leave from the High Court to bring an application for judicial review. This gives the High Court an opportunity to filter out groundless claims.
Applications for leave are usually brought ex parte. This means that you (the respondent) will not be on notice of when the application is being heard and will not be present in court for the application. In some cases, however, the Court may direct the applicant to give you notice of the application so that you can attend court for the leave stage.
The applicant brings the application by filing a statement of grounds and a grounding affidavit.
The statement of grounds sets out the applicant's case and the reliefs he/she is seeking. The grounding affidavit verifies the facts set out in the statement of grounds.
The applicant must show that he/she has sufficient interest in the decision in question, i.e. that the decision affects him/her in some way. The applicant must also demonstrate that he/she has an arguable case and a reasonable chance of success.
This is all done on paper and by legal submissions from counsel. The Court does not hear any oral evidence at the leave stage.
The High Court granted leave to bring judicial review in 481 cases and refused leave in 27 cases. (These figures do not include applications for leave in asylum cases.)
IF LEAVE IS REFUSED
The Court may refuse to give the applicant permission to challenge the decision. The applicant can appeal this refusal to the Court of Appeal.
If the applicant does not appeal the refusal, the challenge will be at an end.
IF LEAVE IS GRANTED
The Court may give the applicant leave to challenge the decision. The applicant will then have to serve you with various court papers, including:
- the order of the court granting leave;
- the statement of grounds;
- the grounding affidavit; and
- a notice of motion – this will set out the date the application is back in court.
Once you have been served with the papers, you will need to prepare your response.
HOW SHOULD I PREPARE MY RESPONSE?
You will need to work with your lawyers to prepare a document known as a statement of opposition. This is an important document as it is your opportunity to respond to the applicant's challenge and to get your full case before the court. Ordinarily, the court will not hear oral evidence in judicial review proceedings so it is extremely important to get this document right.
To draft the statement of opposition, your lawyers will need all relevant information and documentation. Your lawyers will need to know who exactly was involved in the decision-making process, the context in which the decision was made, how the decision was made and to what extent fair procedures were followed (for more on fair procedures, see Guide 3 and Guide 4).
Do not withhold any information from your lawyers, even if you think it might weaken your case. If you are unsure if something is relevant, send it to your lawyers and let them consider it.
You will also have to swear a grounding affidavit verifying the facts set out in the statement of opposition. Swearing an affidavit is equivalent to giving evidence in court. It is an offence to swear that something is true when it is not.
You must serve the statement of opposition on the applicant. Once this has been done, you may exchange further affidavits with the applicant to clarify various issues. When all affidavits have been exchanged, the matter will proceed to a hearing.
There may be a number of court appearances before the case is ready for hearing as you may need the court's assistance to deal with various issues that arise. For example, if there is a dispute as to the facts, the applicant might seek discovery of documents from you, though this is rare in judicial review proceedings.
STAGE 2: THE HEARING
The application will be heard by a High Court judge.
Counsel for the applicant will open the case to the Court and will make submissions on points of law. Your counsel will then present your case.
After hearing both sides, the judge may deliver his/her decision or may reserve judgment for a later date.
You, or someone senior in your office who has authority to deal with any issues that may arise, should attend the hearing to instruct your lawyers. You should also make sure that someone in your office who is familiar with the case is available to get further information or documents for you, if necessary.
WHAT HAPPENS IF MY DECISION IS SUCCESSFULLY JUDICIALLY REVIEWED?
The High Court granted judicial review in 145 cases, and refused it in 144 cases.
If the court grants judicial review, it may grant one or more remedies, depending on what the applicant has asked the court to do. The most common order granted in judicial review proceedings is an order of certiorari, i.e. an order quashing or cancelling the decision. If the court grants an order of certiorari, it may send the matter back to you, as the decision-maker, so that you can make the decision properly.
The Court may also grant other orders such as an award of damages, or orders compelling the decision-maker to reconsider the decision, or prohibiting the decision maker from taking a particular action. See list of remedies in Guide 1.
WHAT HAPPENS IF MY DECISION IS NOT SUCCESSFULLY JUDICIALLY REVIEWED?
If the Court refuses to grant judicial review, the applicant may appeal to the Court of Appeal.
If the applicant does not appeal the refusal, the challenge will be at an end.
- Contact your lawyers as soon as you think your decision may be challenged – do not wait until you are served with formal court papers.
- Consider all your options - you may be able to avoid litigation by settling the case.
- Provide your lawyers with all relevant information and documentation, even if it might potentially weaken your case.
- Do not assume something is irrelevant.
- Work together with your lawyers to respond to the challenge and to meet all court deadlines.
- Learn from your mistakes. If your decision is successfully challenged, consider what changes you can make to your decision-making process to reduce the risk of this happening again.
In the next Guide, our last Guide in the series, we will offer some practical tips for decision-making and dealing with challenges to your decisions.
If you missed any Guides in the series, click here to let us know and we will send them to you.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.