UK: Recent Developments in Judicial Review Procedure

Last Updated: 31 May 2002
Article by Andrew Lidbetter

Since October 2000 the procedure governing judicial review claims has been contained in Part 54 of the Civil Procedure Rules (CPR), as explained in our April 2001 Public Law Briefing. Recent months have seen a number of important additions to the rules of procedure for judicial review, addressing the steps to be taken by the parties before proceedings commence, and the procedure for cases which require urgent consideration in the Administrative Court. These new rules fill in a number of gaps in the rules relating to the commencement of judicial review proceedings.

The Pre-Action Protocol for Judicial Review

The Pre-Action Protocol for Judicial Review came into force in March 2002. To an extent it simply codifies existing good practice regarding the steps that parties should take before proceedings are begun. The position prior to March was that a Claimant for judicial review should normally write a letter before action, and faced potential costs consequences for failing to do so ( R v. Horsham District Council ex parte Wenman [1995] 1 WLR 680). Similarly, a Defendant public authority could be penalised in costs for behaving in a way which the Court felt was unreasonable. This position has now been formalised in the Protocol.

When the Protocol applies

The Protocol includes guidance as to the circumstances in which a judicial review claim is suitable. It highlights the need to exhaust all alternative procedures before commencing judicial review proceedings. A recent case in which this principle was applied was R (Kurdistan Workers’ Party) v. Home Secretary (unreported, 17 April 2002), where Richards J held that a statutory appeal procedure should have been pursued instead of judicial review. The Protocol also notes that judicial review will not always be appropriate. For example, some issues should properly be raised in a forum other than the Administrative Court. Recent cases in which the Courts have applied this principle include R (Assisted Reproduction and Gynaecology Centre) v. Human Fertilisation and Embryology Authority (unreported, 13 January 2002), where the Court of Appeal held that the authority’s scientific and ethical judgments concerning fertility treatment were not susceptible to legal challenge.

The Protocol states that all Claimants will need to satisfy themselves whether they should follow the Protocol, depending on the circumstances of the case. The Protocol will not be appropriate where the Defendant does not have the legal power to change the decision being challenged. 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 or when making orders for costs.

What the Protocol requires

Claimant’s letter before claim

The Claimant must send a letter to the Defendant in order to identify the issues in dispute and establish whether litigation can be avoided. The Protocol sets out the information which should be included, and includes a suggested standard format for the letter. The letter should identify the decision being challenged, the date of the decision, the facts and reasons on which the challenge is based, and the remedy sought. It should also identify any information (such as fuller reasons for the decision) or documents that the claimant seeks from the defendant. Any interested parties should be named and should also be sent a copy of the letter. Finally, the letter should specify a reasonable time for the defendant to reply, which will normally be 14 days. The claim should not be commenced until the suggested reply date has passed, unless the circumstances require more urgent action.

Defendant’s letter of response

Defendants are required to respond using a standard format annexed to the Protocol, and should normally do so within 14 days. Where a response in this time is not possible however, the Defendant should send an interim reply and propose a reasonable extension, giving reasons. The Defendant’s reply must also be sent to all interested parties.

The Defendant’s reply should state in clear and unambiguous terms whether the claim is being conceded in full, in part or not at all. Where the claim is not being conceded in full, the response letter will also, depending on the circumstances, set out a new decision or timescale for issuing a new decision, a fuller explanation for the existing decision, and/or address any points in dispute or explain why they cannot be addressed. Where the Claimant is seeking interim relief, the letter should confirm whether or not the Defendant will oppose the relief sought.

The response letter should also enclose any relevant documentation requested by the Claimant, or explain why they are not enclosed. The Protocol expressly does not impose a greater burden on public bodies to disclose documents or give reasons than already exists under statute or common law. However, the Court may impose sanctions where is considers that the public body should have provided relevant documents or information.

Practical points

Concern has been expressed about the potential clash between the short time limit in judicial review proceedings under the CPR and the time needed to take the steps required by the Protocol. CPR 54.5(1) requires 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. In commercial judicial review cases, especially those challenging the grant of licences or planning permissions, there will often be a special need for urgency which means that proceedings have to be commenced well before the expiry of the three-month period. This is because the party to whom the licence or permission is awarded is likely to incur expenditure in reliance on the public authority’s decision, and may be prejudiced by even a short delay in bringing the challenge.

The judicial review time limit has not been changed by the Protocol; indeed the introduction to the Protocol expressly provides that it is unaffected. The requirement to send out a letter before claim, and wait for a written response from the Defendant, may make it difficult to comply with the requirement to bring proceedings promptly, but it is not yet 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 Protocol’s most important feature is the need to write a letter of response within what may well be a 14 day period. Failure to do so will be taken into account by the Court and sanctions may be imposed unless good reasons are given. 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.

It should also be noted that, once proceedings are issued, CPR 54.8 and 54.9 place considerable pressure on a Defendant to file an acknowledgment of service summarising its grounds for resisting the challenge. The need to respond to the letter before claim and file an acknowledgment of service mean that Defendants now have to place their cards on the table much earlier than was previously required.

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 the recent case of Cowl v. Plymouth City Council [2002] 1 WLR 803, in which he indicated that the Courts could ask the parties to judicial review proceedings 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 to resolve or reduce the issues in dispute. It remains to be seen to what extent Lord Woolf’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.

New procedure for urgent judicial review cases

The Pre-Action Protocol states that its requirements will not be appropriate where the case is urgent or there is a need for an interim injunction to compel a public authority to act. However, CPR Part 54 contains no express provision for the handling of urgent applications. This led to practical difficulties in listing urgent hearings of applications for injunctions or for permission to proceed, and to injunctions being granted without a hearing. Therefore, in February 2002, the Administrative Court issued guidance on the procedure to be followed for cases which are urgent or which include applications for interim injunctions.

Under the new procedure, the Claimant seeking urgent consideration must complete a form stating the reasons for urgency, the proposed timescale for the consideration of the permission application, and the date by which the full hearing of the merits should take place if permission is granted. Where the Claimant applies for an interim injunction, it must also provide a draft order and a statement of the grounds on which the injunction is sought. The application must be served by fax and post, along with the claim form, on the Defendant and interested parties. The Defendant and interested parties must be advised that they may make representations on the application.

Each day one judge will act as the "Urgent Judge" to hear urgent applications on that day. A judge will consider the application within the time requested, and may order that an oral hearing should take place. The judge will then make such order as is appropriate.

Case management and evidence in judicial review

Prior to the enactment of the HRA and CPR Part 54, the Administrative Court had the power to receive oral evidence and allow cross-examination of witnesses in judicial review proceedings. However, it exercised this power extremely rarely. Cross-examination was generally only permitted where there was a material conflict of evidence as to the factual circumstances.

The Court of Appeal’s decision in R (Wilkinson) v. Broadmoor Hospital [2002] 1 WLR 419 indicated that the HRA might require the Court to undertake a more detailed factual investigation, including cross-examination, in cases concerning fundamental Convention rights or the proportionality of interferences with Convention rights. In R (PG) v. Ealing London Borough Council (The Times, 18 March 2002), Munby J considered whether the HRA and Part 54 had unintentionally made a more radical alteration to judicial review procedure. Whereas the old rules specifically gave the Administrative Court the power to direct thatthere should be oral evidence and cross-examination, the new rules in CPR Part 54 contain no express provision to that effect, and a question therefore arose as to whether the Court retains that power.

The judge noted that "there will be some cases - no doubt not very many - where justice simply cannot be done unless there is cross-examination". He also observed that, following the coming into force of the HRA, judicial review now required the Court to undertake more intensive review of certain decisions, which might extend to a full review of the merits of a decision. Full merits review would require cross-examination, without which it might be arguable that the Court itself had failed to comply with its obligation to provide a fair hearing under Article 6(1) of the European Convention on Human Rights (see also Wilkinson). Accordingly, the judge held that the Court not only had the power to direct oral evidence and cross-examination (derived from its general powers under the CPR to manage cases and control evidence), but that it might be under a duty to order cross-examination in some cases.

PG should not mean that cross-examination of witnesses in the courtroom becomes a common feature of judicial review hearings. Indeed, in commercial judicial review cases oral evidence and cross-examination will continue to be highly unusual. Munby J himself remarked that he would expect them to be "very much the exception". Nevertheless, the case illustrates the need for the Courts to ensure that their procedures comply with the HRA.

© 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.

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