Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body.
In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.
It is not really concerned with the conclusions of that process and whether those were 'right', as long as the right procedures have been followed. The court will not substitute what it thinks is the 'correct' decision.
This may mean that the public body will be able to make the same decision again, so long as it does so in a lawful way.
If you want to argue that a decision was incorrect, judicial review may not be best for you. There are alternative remedies, such as appealing against the decision to a higher court.
Examples of the types of decision which may fall within the range of judicial review include:
- Decisions of local authorities in the exercise of their duties to provide various welfare benefits and special education for children in need of such education;
- Certain decisions of the immigration authorities and Immigration Appellate Authority;
- Decisions of regulatory bodies;
- Decisions relating to prisoner's rights.
Her Majesty's Court Service: Guidance notes on applying for judicial review
http://www.judiciary.gov.uk/judgment_guidance/judicial_review/index.htm
PDF version INTRODUCTION
This protocol applies to proceedings within England and Wales only. It does not affect the time limit specified by Rule 54.5(1) of the Civil Procedure Rules which requires that any claim form in an application for judicial review must be filed promptly and in any event not later than 3 months after the grounds to make the claim first arose.1
1
Judicial review allows people with a sufficient interest in a decision or action by a public body to ask a judge to review the lawfulness of:
- an enactment; or
- a decision, action or failure to act in relation to the exercise of a public function.2
2
Judicial review may be used where there is no right of appeal or where all avenues of appeal have been exhausted.
Alternative Dispute Resolution
3.1
The parties should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, and if so, endeavour to agree which form to adopt. Both the Claimant and Defendant may be required by the Court to provide evidence that alternative means of resolving their dispute were considered. The Courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored. Parties are warned that if the protocol is not followed (including this paragraph) then the Court must have regard to such conduct when determining costs. However, parties should also note that a claim for judicial review ‘must be filed promptly and in any event not later than 3 months after the grounds to make the claim first arose’.
3.2
It is not practicable in this protocol to address in detail how the parties might decide which method to adopt to resolve their particular dispute. However, summarised below are some of the options for resolving disputes without litigation:
- Discussion and negotiation.
- Ombudsmen – the Parliamentary and Health Service and the Local Government Ombudsmen have discretion to deal with complaints relating to maladministration. The British and Irish Ombudsman Association provide information about Ombudsman schemes and other complaint handling bodies and this is available from their website at www.bioa.org.uk . Parties may wish to note that the Ombudsmen are not able to look into a complaint once court action has been commenced.
- Early neutral evaluation by an independent third party (for example, a lawyer experienced in the field of administrative law or an individual experienced in the subject matter of the claim).
- Mediation – a form of facilitated negotiation assisted by an independent neutral party.
3.3
The Legal Services Commission has published a booklet on ‘Alternatives to Court’, CLS Direct Information Leaflet 23 (www.clsdirect.org.uk), which lists a number of organisations that provide alternative dispute resolution services.
3.4
It is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR.
4
Judicial review may not be appropriate in every instance.
Claimants are strongly advised to seek appropriate legal advice when considering such proceedings and, in particular, before adopting this protocol or making a claim. Although the Legal Services Commission will not normally grant full representation before a letter before claim has been sent and the proposed defendant given a reasonable time to respond, initial funding may be available, for eligible claimants, to cover the work necessary to write this. (See Annex C for more information.)
5
This protocol sets out a code of good practice and contains the steps which parties should generally follow before making a claim for judicial review.
6
This protocol does not impose a greater obligation on a public body to disclose documents or give reasons for its decision than that already provided for in statute or common law. However, where the court considers that a public body should have provided relevant documents and/or information, particularly where this failure is a breach of a statutory or common law requirement, it may impose sanctions.
This protocol will not be appropriate where the defendant does not have the legal power to change the decision being challenged, for example decisions issued by tribunals such as the Asylum and Immigration Tribunal.
This protocol will not be appropriate in urgent cases, for example, when directions have been set, or are in force, for the claimant's removal from the UK, 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 (for example, the failure of a local housing authority to secure interim accomodation for a homeless claimant) a claim should be made immediately. A letter before claim will not stop the implementation of a disputed decision in all instances.
7
All claimants will need to satisfy themselves whether they should follow the protocol, depending upon the circumstances of his or her case. Where the use of the protocol is appropriate, the court will normally expect all parties to have complied with it and will take into account compliance or non-compliance when giving directions for case management of proceedings or when making orders for costs.3 However, even in emergency cases, it is good practice to fax to the defendant the draft Claim Form which the claimant intends to issue. A claimant is also normally required to notify a defendant when an interim mandatory order is being sought.
To read more http://www.justice.gov.uk/civil/procrules_fin/contents/protocols/prot_jrv.htm
1 Introduction
2 What is Judicial Review?
3 What is the Pre-action protocol?
4 Where should I commence proceedings?
5 When should I lodge my application for permission to apply for judicial review?
6 Is there a fee to pay and, if so, when do I pay it?
7 How do I apply for Judicial Review?
8 What do I do if my application is urgent?
9 What is an Acknowledgement of Service?
10 What happens after the defendant and/or the interested party has lodged an acknowledgement of service?
11 What happens if my application for permission is refused?
12 What happens if my application for permission is granted?
13 What happens when my case is ready for hearing?
14 What if I need to make an application for further orders after the grant of permission?
15 Can my application be determined without the need for a hearing?
16 What if the proceedings settle by consent prior to the substantive hearing of my application?
17 What if I want to discontinue the proceedings at any stage?
18 Will I be responsible for costs of the defendant and/or the interested parties if my application is unsuccessful?
19 What can I do if I am unhappy with the Judge's decision?
20 Where can I get advice about procedural matters?
http://www.hmcourts-service.gov.uk/cms/1220.htm