UK: Pre-Action Protocol for Judicial Review

The pre-action Protocol for judicial review came into force on Monday 4^th 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.

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).

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)).

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

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