This new edition has been significantly amended to take account of the following developments in law and practice, including:

• Development of the Unified Tribunal system with transfers of judicial reviews
• Regionalisation of Administrative Court
• Clear development of mistake of fact as a mistake of law
• Increasing understanding of the impact of the Human Rights Act
• Limitations upon judicial review in the context of immigration
• Ongoing case-law developments
• Changes to Appeals (CPR Pt 52)
• Developments in costs and funding

In addition to the authors’ commentary, Judicial Review: A Practical Guide contains over 20 precedents covering all aspects of the litigation process, together with all the main legislative and judicial materials.

Hugh Southey QC, Amanda Weston and Jude Bunting all Tooks Chambers

Foreword
Preface
Table of Cases
Table of Statutes
Table of Statutory Instruments
Table of European and International Material

Part I
Law and Practice

• The Scope of the High Court’s Jurisdiction to Consider Claims for Judicial Review
• Grounds of Challenge in Judicial Review Claims
• Matters to be Considered Before Applying for Judicial Review
• Steps to be Taken Before Applying for Judicial Review
• Procedure for Bringing a Claim for Judicial Review in the High Court
• Jurisdiction of the Upper Tribunal to Consider Judicial Review
• Orders for Interim Relief available from the Administrative Court
• During a Judicial Review Claim
• Relief Available at the End of Judicial Review Proceedings
• Appeal Procedure
• Costs

Part II
Procedural Checklist

Part III
Forms and Precedents

Part IV
Legislation, Guidance and Protocol

Index

In the last half-century or so judicial review of governmental acts and omissions has come from almost nowhere – it didn’t even feature in the Bar examinations in the 1960s – to centre-stage in both legal theory and legal practice.

There is a corresponding wealth of books on the doctrines of modern public law; but there remains surprisingly little in the way of practice books. Part of the reason is that this is a field in which practice and theory are almost inseparable. What kind of official or body, for example, is open to judicial review? Where is the interface between policy guidance and individual decision-making? Can a policy be attacked for stultifying decisions? Can a decision be attacked for conforming – or for not conforming – to a policy?

For public administrators and their lawyers the problems are migrainous. For their challengers the possibilities are numerous, but the constraints and obstacles are both real and necessary. Behind the rules and principles lies a network of legal controls, most but not all put in place by the judges. Time limits are very tight; disclosure is not merely a litigant’s obligation but a public duty; remedies are discretionary.

There is in addition a unique relationship between the parties, one of which is always, in one guise or another, the state. It is a fundamental principle of the common law that the state comes before the courts on an equal footing with the individual. But this is not the whole story, for in public law litigation the state’s object is not, or not necessarily, to win the particular case: it is to ensure that the law is correctly understood and developed. One of the striking features of my 25 years of public law
litigation at the Bar was the preparedness of the successive Treasury Devils (from Nigel Bridge to John Laws) to forgo points which might win their case but would distort the law or retard its development. Another was their abstention from taking technical objections – for instance to the introduction of late arguments – unless these placed them in genuine difficulties: once again the object was to get the law straight, not necessarily to win the case.

One consequence of this forensic culture has been, I think, a more principled and less uneven development of modern public law than would otherwise have been the case. That is not to say that there are not anomalies and difficulties; but they tend to arise from the merits of individual cases less often than in some other fields of law. At the same time, public law has attempted – for example in developing the principles of legitimate expectation – to bring law more closely into line with justice. Thus fairness and proportionality tend now to be invoked where quasi-judicial decisions and rationality were once argued.

But it’s no use having a good case if your tackle is not in order. The practicalities of judicial review may at times resemble an assault course, but they are logical and, in general, necessary. They are also interwoven with law. In Judicial Review: A Practical Guide practitioners on both sides of the fence (as well as the growing band of litigants in person) will find what they need to get their show on the road and to keep it running.

Stephen Sedley
The Rt Hon Sir Stephen Sedley
March 2012

Judicial review is the cornerstone of the rule of law in our constitutional system. In particular, it ensures that a powerful executive acts lawfully. That may be more important now than it has ever been. We are living through a period of extraordinary political conflict. Central government is seeking to introduce highly controversial policies such as reforms to welfare benefits, legal aid and the National Health Service. It is not necessarily unlawful to introduce those policies. However, they must be introduced in a manner that is consistent with the parameters set by Parliament. This is one area where judicial review plays such an important role.

Parts of the media present judicial review as the unelected judiciary undermining the political process. However, this misunderstands judicial review. Parliament has enacted legislation such as the Human Rights Act 1998 and the Equality Act 2010 that restrict the scope of the executive’s powers. As a consequence, if the courts hold that government acted unlawfully by failing to comply with that legislation, they are simply enforcing the will of Parliament. The common law has developed to protect fundamental rights and freedoms from the Magna Carta onwards. These are the rights that judicial review upholds.

Judicial review is important because it ensures that controversial policies are genuinely the product of the democratic process and that decisions that affect the lives of individuals and groups are lawful. That is why we wrote this book. We hope that it will help to increase access to judicial review. Judicial review is not straightforward and even experienced lawyers can find it intimidating. This book is intended to act as a handbook for all. We hope that both experienced lawyers and litigants in person will be able to rely on this book to guide them through the process.

We would like to thank all of those who have provided us with support in writing this. Tony and his team at Jordans have worked tirelessly and shown us support and patience for which we are very grateful. Our wonderful colleagues at Tooks Chambers have provided us with ideas and inspiration. Sir Stephen Sedley generously prepared a characteristically eloquent foreword. Our families have put up with late nights and weekend working. Hugh would particularly like to thank Mum, Kate, Rebecca, Orla and Tommy. Amanda would like to thank Joby, Verity, Jojo and Millie for their insights about the importance of speaking truth to power and Catherine Oborne for her able assistance. Jude’s work on this book is dedicated to the Great Franko. Finally but most importantly we owe an enormous debt to our partners. Thank you Jackie and Mohamed. We have attempted to state the law as at 1 January 2012.  We have, however, been able to include some subsequent developments. There are some abbreviations used throughout the book. In particular: CPR – Civil Procedure Rules 1998 (SI 1998/3132) HRA – Human Rights Act 1998

Hugh Southey QC
Amanda Weston
Jude Bunting
March 2012