Judicial Review A Practical Guide

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1 Judicial Review A Practical Guide Third Edition Hugh Southey QC Amanda Weston Jude Bunting Raj Desai With a Foreword by Sir Adrian Fulford

2 Published by LexisNexis LexisNexis Regus Terrace Floor Castlemead Lower Castle Street Bristol BS1 3AG Whilst the publishers and the author have taken every care in preparing the material included in this work, any statements made as to the legal or other implications of particular transactions are made in good faith purely for general guidance and cannot be regarded as a substitute for professional advice. Consequently, no liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in this work. RELX (UK) Limited, trading as LexisNexis 2017 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any way or by any means, including photocopying or recording, without the written permission of the copyright holder, application for which should be addressed to the publisher. Crown Copyright material is reproduced with kind permission of the Controller of Her Majesty s Stationery Office. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN Typeset by Letterpart Limited, Caterham on the Hill, Surrey CR3 5XL Printed in Great Britain by Hobbs the Printers Limited, Totton, Hampshire SO40 3WX

3 CONTENTS Foreword Preface Table of Cases Table of Statutes Table of Statutory Instruments Table of European and International Material v vii xv xxxvii xli xlv Part I Law and Practice Chapter 1 The Scope of the High Court s Jurisdiction to Consider Claims for Judicial Review Why is judicial review important? What is judicial review? Impact of the civil justice reforms on the language of judicial review Who may apply for judicial review? Whose decisions may be challenged? Requirement that decisions must be public law decisions Statutory exclusions of judicial review Particular types of decision that are not subject to challenge Extent of the discretion given to particular decision-makers 27 Chapter 2 Grounds of Challenge in Judicial Review Claims Importance of understanding the categories of legal challenge available Categories of error susceptible to challenge in an application for judicial review Illegality Ultra vires Errors of jurisdiction Broad statutory discretion and errors of law Procedural impropriety Natural justice and impartiality Delegation of decision-making powers Irrationality 77

4 x Judicial Review: A Practical Guide 2.11 Relevant factors and improper motive Legitimate expectation Inconsistency Circumstances in which there is a duty to give reasons Bad faith Proportionality Grounds relying on the Human Rights Act Relying on other human rights instruments 101 Chapter 3 Matters to be Considered Before Applying for Judicial Review Delay in applying for judicial review Premature applications for judicial review Existence of an alternative remedy Whether the issue is a criminal cause or matter Should an order be sought limiting the reporting of the matter? 125 Chapter 4 Steps to be Taken Before Applying for Judicial Review Pre-action Protocol Public funding Appointment of a litigation friend 139 Chapter 5 Procedure for Bringing a Claim for Judicial Review in the High Court Urgent applications Documents to be lodged with the Administrative Court Duty of disclosure applying to claimants Acknowledgement of service Duty of disclosure applying to defendants Claimant s response to acknowledgement of service Amendment of the grounds and service of additional evidence Determining whether permission to apply for judicial review should be granted Further steps following a refusal of permission Conduct of the judicial review application after obtaining permission Acting for a potential party who has not been served with the claim form Settling the claim or otherwise disposing of it without a hearing Substantive hearing Matters that apply at all stages of the procedure 182 Chapter 6 Jurisdiction of the Upper Tribunal to Consider Judicial Review Introduction Procedure in Upper Tribunal 187

5 Contents xi 6.3 Commencing a claim for judicial review in Upper Tribunal Urgent applications Obligations of a respondent or interested party served with an application Determination of the application for permission Procedure following a grant of permission Judgment of the Upper Tribunal Appeals 195 Chapter 7 Orders for Interim Relief available from the Administrative Court During a Judicial Review Claim Procedure for interim relief applications Right to apply for bail while judicial review proceedings are pending in the Administrative Court Stays of the enforcement of criminal penalties Stays of proceedings pending a judicial review challenge Other forms of interim relief available during applications for judicial review 204 Chapter 8 Relief Available at the End of Judicial Review Proceedings Discretion and judicial review Judicial review orders Power to vary a sentence following judicial review 224 Chapter 9 Appeal Procedure Civil appeals to the Court of Appeal Civil Appeals to the Supreme Court Criminal Appeals to the Supreme Court Leapfrog Appeals to the Supreme Court 243 Chapter 10 Costs Introduction Rules governing costs between the parties Costs for the period before the permission decision Special considerations when the unsuccessful party is in receipt of public funding Special considerations when a magistrates court or other court or tribunal is the defendant Special considerations as to the costs of third parties and non-parties Costs from central funds Costs capping orders Wasted costs against legal advisers Assessment of costs 259

6 xii Judicial Review: A Practical Guide Practical considerations when a client is in receipt of public funding 260 Part II Procedural Checklist 263 Part III Forms and Precedents 277 P3.1 Letter before Claim 280 P3.2 Letter in Response to the Letter before Claim 283 P3.3 Claim Form 285 P3.4 Grounds in Support of the Claim 292 P3.5 Application for Urgent Consideration 297 P3.6 Order on Application for Urgent Consideration 301 P3.7 Witness Statement 302 P3.8 Notice of CLS Funding 306 P3.9 Acknowledgement of Service 308 P3.10 Summary Grounds of Defence, 312 P3.11 Reasons for Renewing a Claim 313 P3.12 Detailed Grounds of Resistance 314 P3.13 Consent Order 316 P3.14 Application for Bail 317 P3.15 Precedent Draft Order Granting Bail 320 P3.16 Consent Order Disposing of the Case 321 P3.17 Precedent Skeleton Argument 323 P3.18 Grounds for a Non-Criminal Case 329 P3.19 Application for Interim Relief 336 P3.20 Draft Order Granting Interim Relief 338 P3.21 Certificate of Suitability of Litigation Friend 339 Part IV Legislation, Guidance and Protocol 341 Senior Courts Act County Courts Act Human Rights Act Tribunals Courts and Enforcement Act Civil Procedure Rules 1998, SI 1998/ Practice Direction 32 Evidence 384 Part 44 General Rules about Costs 400 The Costs Practice Direction 415 Part 52 Appeals 444 Practice Direction 52 Appeals 456 Part 54 Judicial Review and Statutory Review 542 Practice Direction 54A Judicial Review 549 Practice Direction 54D Administrative Court (Venue) 556 Pre-Action Protocol for Judicial Review 559 The Tribunal Procedure (Upper Tribunal) Rules 2008, SI 2008/

7 Contents xiii Practice Direction Fresh Claim Judicial Review in the Immigration and Asylum Chamber of the Upper Tribunal 576 Administrative Court Judicial Review Guide Practice Direction (Judgments: Form and Citation) 582 Practice Direction: Upper Tribunal Applications for Judicial Review 585 Practice Direction: Upper Tribunal Fresh Claims for Judicial Review 586 Index 587

Directors Duties. Andrew Keay LLB, M Div, LLM, PhD

Directors Duties. Andrew Keay LLB, M Div, LLM, PhD Directors Duties Andrew Keay LLB, M Div, LLM, PhD Professor of Corporate and Commercial Law Centre for Business Law and Practice School of Law University of Leeds Professorial Research Fellow Deakin Law