UK: Pre-Action Protocol for Judicial Review

Last Updated: 4 March 2002
Article by Andrew Lidbetter


The pre-action Protocol for judicial review came into force on Monday 4th March 2002. To an extent it simply places into the framework of the Civil Procedure Rules what is already good practice; a letter before claim from the Claimant and a response from the Defendant with potential costs consequences for failing to do so. However, the position has now been formalised.

When the Protocol Applies

The Protocol sets out the parameters for when a judicial review claim is suitable. It highlights the need for other alternatives to judicial review to have been used prior to commencing proceedings (paragraphs 2 and 3). Concern was expressed prior to the introduction of the Protocol as to the potential clash between, on the one hand, the existing time limit in judicial review proceedings under Rule 54.5(1) of the Civil Procedure Rules and on the other hand, the need to send out a letter before claim and await a letter of response from the Defendant. The time limit in CPR 54.5(1) requiring Claimants to file their claim form promptly and in any event not later than 3 months after the grounds to make the claim first arose has not been changed and indeed it is expressly provided in the opening paragraph of the introduction that the Protocol does not affect the time limit.

The Protocol states that all Claimants will need to satisfy themselves whether they should follow the Protocol depending on the circumstances of his or her case (paragraph 7). However, where judicial review is appropriate the Court will normally expect all parties to have complied with the Protocol and will take into account compliance and non-compliance when giving directions for case management of proceedings or when making orders for costs (paragraph 7).

However the Protocol does specify that it will not be appropriate to comply with its requirements where the case is urgent or where there is an urgent need for an interim order to compel a public body to act where it has unlawfully refused to do so (paragraph 6). The Protocol will also not be appropriate where the Defendant does not have the legal power to change the decision being challenged (paragraph 6).

What the Protocol Requires

Claimant's Letter Before Claims

Claimants must send a letter to the Defendant in order to identify the issues in dispute and establish whether litigation can be avoided (paragraph 8). The Protocol sets out the information which should be included (paragraphs 10 and 11). The Claimant is also normally required to notify the Defendant when an interim mandatory order is being sought (paragraph 7). The Protocol contains a suggested standard format for the letter at Annex A and, in particular, requires the following:

  • The overall matter being challenged;
  • The date and details of the decision, act or omission being challenged, a brief summary of the facts and why the decision is contended as wrong (paragraph 10);
  • Details of the remedy sought;
  • Details of any interested parties (who must also be sent a copy of this letter) (paragraph 11);
  • Details of any information that is being sought such as a fuller reasoning for the decision in question (paragraph 10);
  • Details of any documents or policy which the Claimant wants disclosed together with the reason why they are relevant;
  • Details of the address for the reply and a proposed date for reply. The Protocol recommends 14 days as a reasonable time depending on the circumstances of each case. The claim should not then be made until this date has passed unless the circumstances of the case require more urgent action to be taken (paragraph 12).

Defendant's Letter of Response

Defendants are required to respond, and should normally do so within 14 days using the standard format at Annex B. Failure to do so will be taken into account by the Court and sanctions may be imposed unless there are good reasons (paragraph 13). Where a response in this time is not possible however the Defendant should send an interim reply and propose a reasonable extension, together with reasons for the extension. The Defendant's reply must also be sent to all interested parties identified by the Claimant and set out details of any parties the Defendant considers have an interest (paragraph 17). The Defendant's reply should comply with the following requirements:

  • The reply should state in clear and unambiguous terms whether the claim is being conceded in full, in part or not at all (paragraphs 15 and 16).

Where the claim is not being conceded in full the response letter should also deal with the following:-

  • Where appropriate, it should contain a new decision identifying what aspects of the claim, if any, are being conceded or give a clear timescale within which the new decision will be issued (paragraph 16(a));
  • Provide a fuller explanation for the decision where it is appropriate (paragraph 16(b));
  • Address any points in dispute or explain why they cannot be addressed (paragraph 16c));
  • Enclose any relevant documentation requested by the Claimant or explain why they are not enclosed (paragraph 16(d)). The Protocol does not impose a greater burden on public bodies to disclose documents or give reasons than already exists under statute or common law, but the Court may impose sanctions where is considers that the public body should have provided relevant documents or information, especially where there is a breach of a common law or statutory requirement (paragraph 6);
  • Where an interim remedy will be applied for, confirm whether or not the Defendant will oppose the relief sought (paragraph 16(e)).

Practical Points

The position prior to 4th March was that a Claimant for judicial review should normally write a letter before action and there was a risk of adverse costs consequences of not doing so. Similarly, a Defendant public authority would face possible cost consequences of behaving in a way which the Court felt was unreasonable. However, the position has now been codified. The difficulty for Claimants will be to balance the requirements of the Protocol against the strict timings in judicial review. It is not year clear to what extent the Court will accept compliance with the Protocol as a reason to extend time for applying for judicial review. From the Defendant's perspective, the most important development is the need to write a letter of response within what may well be a 14 day period. Both the Claimant and the Court can be expected to consider the letter of response carefully and it goes without saying that it is important that this response be carefully written.

One of the purposes of pre-Action protocols is to see to what extent the exchange of information can lead to litigation being avoided. This links in with the approach of Lord Woolf LCJ in Cowl v Plymouth City Council [2002] The Times, 8 January in which he indicated that in a given judicial review case the Courts could ask the parties to explain what steps they had taken to resolve the dispute and ask why a complaints procedure or some other form of alternative dispute resolution had not been used or adapted to resolve or reduce the issues in dispute. It remains to be seen to what extent Lord Woolf LCJ's comments will be taken on board and to what extent the Protocol will, in fact, contribute to the saving of costs and/or unnecessary litigation.

© Herbert Smith 2002

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.