Reviewed by PLC Public Sector in April 2011.
A checklist for claimants issuing a claim for permission to apply for judicial review.
Remember to consider the following:
Does the claimant have sufficient standing or locus standi to proceed by way of judicial review? Under section 31(3) of the Senior Courts Act 1981, the court must not grant leave for an application for judicial review unless it considers that the claimant has a sufficient interest in the matter to which the application relates.
Have all other avenues of appeal or alternative remedies been exhausted? Judicial review is considered to be a remedy of last resort and can be declined on the basis that an alternative remedy may be available.
Is the decision, action or failure to act that of:
a public body; or
other body exercising a public function.
The public/private law divide is blurring. The court, when deciding whether a body is a public body for the purposes of judicial review, will examine the functions that it performs and whether those functions have public law consequences.
Is there a reviewable act or omission by the public body? On what ground might it be challenged? When would be the right time to challenge?
What will judicial review achieve? Can the outcome be achieved by other means?
What type of order is required? The orders available include:
a mandatory order requiring the public body to do something;
a prohibiting order preventing the public body from doing something;
a quashing order quashing the public body's decision;
a declaration; or
damages under the Human Rights Act 1998. For more information on the circumstances in which a claim for damages arising from a public body's unlawful actions may be included in a judicial review claim, see Practice note, Damages in judicial review (www.practicallaw.com/6-523-6740).
The claim form must be filed promptly and in any event not later than three months after the grounds upon which the claim is based first arose (CPR Part 54.4).
Remember that it is not possible to agree an extension of time for lodging the application with the defendant. If an extension of time is needed for the lodging of the application, the claim form must:
include such an application; and
set out the grounds in support of the application.
Note however that where a claim involves a challenge to an EU directive, a claimant seeking permission to apply for judicial review no longer has to overcome the hurdle of promptness under CPR 54.4, see Case C-406/08 - Uniplex (UK) Ltd v NHS Business Services Authority and R (Buglife) v Natural England [2011] EWHC 746 (Admin). However, if the case does not raise an EU point of law, the principles in Andrew Finn-Kelcey v Milton Keynes Borough Council [2008] EWCA Civ 1067 that filing within three months should not be assumed to be prompt filing continues to apply.
The pre-action protocol may be dispensed with where:
The circumstances of the claim are urgent enough to warrant doing so.
The proposed defendant does not have the legal power to change the decision being challenged. In this situation, the use of the protocol is not appropriate.
The letter before claim (see Standard document, Letter before claim (www.practicallaw.com/5-503-0768)) is an opportunity to persuade the public body, at a no-cost-risk stage, to consider the grievance and put the matter right rather than face having its decision or action judicially reviewed.
The letter before claim should:
outline the proposed challenge;
give details of the issue in dispute;
raise questions and request documents;
provide sufficient information to establish whether litigation can be avoided;
detail any relevant information required from the defendant and explain why it is considered relevant; and
give a date by which the defendant should respond. This is usually 14 days from the date of the letter of claim.
Consider whether there is an interested party who should also receive a copy of the letter before claim.
Upon receiving the defendant's reply to the letter before claim, consider whether:
There is anything in the response that weakens the claim.
Any authorities or materials were overlooked when the letter before claim was written and whether these can be addressed.
When drafting the claim form (Form N461 (www.practicallaw.com/4-517-0127)) and supporting grounds, bear the following in mind:
It is a document that will be read by a busy permission judge. Ensure that there is sufficient detail/information in the document for the permission judge to consider that there is an arguable ground for judicial review.
The document will form the framework for a substantive hearing.
Deal with any issues that have been raised by the defendant in their reply to the letter before claim.
Remember to include the following:
any written evidence in support of the claim or an application to extend time;
a copy of any order required to be quashed;
copies of documents to be relied on;
copies of relevant statutory materials; and
a list of essential documents for advance reading by the court (with page references to the passages relied on).
If it is not possible to file all the necessary documents with the claim form:
indicate which documents are missing; and
explain why it is not possible to file them with the application.
Remember that the defendant is entitled to seek an extension of time for lodging the acknowledgement of service until the missing documents are received.
If there is an issue as to delay or alternative remedy, do not forget to deal with this in the claim form.
Lodge the claim promptly or with a good reason for delay by filing the original claim form and fee at the Administrative Court Office with:
a copy of the claim for the court's use;
a paginated (in consecutive page number order) and indexed bundle containing the required documents (see Drafting the claim form and preparing the court bundle); and
sufficient additional copies so that the court can seal them for the claimant to serve upon the defendant and any interested party.
Remember to lodge a Certificate of Service in the Administrative Court Office within seven days of serving the defendant and any interested party (Form N215).
Applications that do not comply with the requirements of CPR Part 54 and its accompanying Practice Direction will only be accepted in exceptional circumstances. An exceptional circumstance is one where a decision from the court is required within 14 days of lodging an application. However, an undertaking to comply with the requirements of the Civil Procedure Rules (www.practicallaw.com/6-107-5906) within a specified period will be required.
Although there is no provision within CPR 54, a claimant may after service of the defendant's acknowledgement of service contact the Administrative Office of the High Court to lodge a brief reply on the summary grounds:
a copy of this reply should be served on the defendant;
this reply should be lodged promptly.
A judge will consider the application for permission to proceed with the claim for judicial review on the papers. The judge's decision and the reasons for the decision will be served on the claimant and defendant.
If permission is granted to the claimant, there is no right of appeal from the grant of permission for the defendant.
For further information on judicial review, see Practice notes: