Judicial Review

Why do I need to know about judicial review?

If you interact in any important way with public bodies, you need to know the basics of judicial review, given the critical impact their decisions or omissions might have.

Where you are affected, you may bring judicial review proceedings concerning the decision or omission. However, it is important to first check if any other remedies are available to resolve the issue before opting for judicial review proceedings.

Who can be subject to judicial review proceedings?

Judicial review can be applied to any person or body, typically established under legislation, that performs public functions.

This means that decisions made, for example, by government departments, entities involved in:

• Licensing
• Discipline or planning
• Bodies overseeing public contract awards
• Tribunals
• Lower courts
• Regulators, and
• Any other persons making decisions under public or legal authority can be challenged through judicial review.

Even private organisations can be subject to judicial review if they are performing public functions.

What can be achieved through judicial review?

Judicial review is a quick and effective type of action that aims to:

• Prevent a public body from doing something it shouldn’t
• Make the public body do something it has a duty to do
• Stop the public body from doing something in an incorrect and/or unfair way and/or without giving sufficient reasons
• Overturn decisions based on the following incorrect and/or unfair processes
• Overturn decisions made without authority, or unreasonably or without supporting material, or
• Have the court declare the position at law and in some cases award damages

The courts can also grant interim relief to freeze a decision, pending further order, or the outcome of the proceedings as a whole.

The Superior Courts, in judicial review proceedings, can examine both the process and the substance of decision-making. However, it’s important to note that judicial review proceedings do not challenge the merits of a decision. Instead, judicial review proceedings are brought on grounds that a particular decision is beyond the powers of the body.

In this regard, public bodies are empowered only to make decisions that:

• Are within their remit
• Are made for the purposes intended
• Are made on a reasonable and rational basis, taking account of only evidence-based and relevant matters
• Are accompanied by sufficient reasons; and are arrived at in a procedurally correct and fair way

Therefore, you can't challenge a decision simply because you disagree with it or think it's wrong or could be better. But you can challenge a decision that is:

• Outside of the remit of the public body
• Within remit but not made for the intended purpose
• Reached in a procedurally incorrect or unfair way
• Not accompanied by sufficient reasons, or
• Patently unreasonable or lacking any supporting evidence

What do I need to look out for?

Judicial review has its own particular rules, practices and legal principles which include the following:

• A two-stage process is involved. Initially, there’s the so-called “leave” application, which is a ‘filtering’ stage where you must apply to the Court for permission to bring the case on the facts and grounds you have identified. This requires preparing a substantial set of documents even before the case starts. If the case doesn’t pass this stage, it won’t proceed further. The test is whether there is an ‘arguable case’, so the threshold is reasonably low.
• Judicial review has much shorter timelines compared to regular legal proceedings, and these deadlines are strictly enforced. You must start judicial review proceedings promptly, and usually within a maximum of three months of the issue arising. Timeliness is crucial, and some cases require even quicker action.
• Judicial review proceedings are ‘paper-based’, meaning that they are heard and determined on affidavit, so usually no witnesses are called to give oral evidence.
• Judicial review proceedings normally pass through the court system more quickly than ‘ordinary’ proceedings, and they can sometimes also be heard in the High Court’s ‘fast-track’ Commercial List or the Commercial Planning and Environment List.
• Judicial review proceedings can only be commenced in the High Court, and not in any lower court.
• In a successful challenge, the Court will not usually substitute its own decision for the challenged decision of the public body, and will remit the matter to the body for proper, lawful, decision-making.
• The Court may give a measure of deference to decisions of public bodies which have a specialism and expertise in the field in which the impugned decision was made.

If you have an issue with the procedural or substantive lawfulness of a public body’s decision-making, absent any other remedy being available, you can apply to the High Court to challenge the decision-making by way of judicial review, provided you move quickly and have an arguable case.

For more information and expert advice, contact a member of our Public, Regulatory & Investigations team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.