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Procedural Requirements for Judicial Review in England and Wales

Judicial review is a vital legal process that serves as a cornerstone of accountability, ensuring that public bodies and administrative authorities act lawfully, fairly, and in accordance with established procedures. This judicial mechanism, fundamentally concerned with the legality and propriety of decisions rather than their merits, provides a means for individuals, organisations, and groups to challenge government actions that impact their rights and interests.

Two-stage process: Judicial review involves in two major stages. First, a party must seek permission (or leave) from the court to proceed with their claim. This stage involves presenting the grounds for the challenge and demonstrating that the claim has legal merit and is not frivolous. If permission is granted, the case moves on to the substantive hearing, where the actual review of the decision takes place.

Pre-action procedure: Prior to initiating judicial review proceedings, claimants must adhere to a pre-action procedure. This entails sending a Letter before Claim to the potential defendant, which outlines the grounds for the challenge and the relief sought. The defendant is required to respond with a Letter of Response, addressing the claim. Failing to comply with this pre-action requirement can result in cost consequences.

Choice of court division: All judicial review claims are filed in the Administrative Court, which is a specialised division of the High Court and part of the King's Bench Division. The Planning Court handles planning-related judicial reviews and statutory challenges, ensuring that claims are dealt with by judges with expertise in the relevant areas of law.

Time limits: Judicial review claims must generally be brought promptly, and, in any case, not later than three months after the grounds for the claim first arose. However, there are exceptions to this rule. For certain procurement decisions, the time limit is 30 days, and for planning decisions, it is six weeks. Strict adherence to these time limits is crucial.

Duty of candour: The duty of candour places an obligation on both claimants and defendants to make full and frank disclosure of all relevant facts to the court. This includes disclosing information that could hinder the judicial review process, such as the existence of an alternative remedy or any delays. The duty of candour ensures that the court has complete and accurate information to make informed decisions.

Application for permission: Typically, a judge will review the claimant's application for permission on paper. If permission is refused, the claimant has the right to request an oral renewal hearing. This allows the claimant to present their case orally and address any concerns raised by the judge. However, an application can be refused on the basis that it is "totally without merit," which precludes an oral renewal hearing.

Detailed grounds and evidence: If permission is granted, the defendant or any other party served with the claim who intends to contest the case must submit detailed grounds for contesting the claim. This involves presenting legal arguments and evidence to support their position. Written evidence can include documents, expert reports, and witness statements.

Limited disclosure: Judicial review claims often do not require the resolution of factual disputes, so the court rarely orders the disclosure of documents or the gathering of evidence through oral examination. The focus is primarily on legal arguments and the application of law to the case's facts.

Substantive hearing: The substantive hearing is the stage where the judge considers the legal merits of the case. It often involves oral arguments presented by both parties. While witnesses can be called, cross-examination is relatively rare, as the focus is on the legal and procedural aspects of the case.

Costs: The court has discretion when awarding costs, and it may not necessarily follow the principles used in private law. Generally, the loser of the judicial review case is responsible for paying the winner's costs, though the court can consider various factors in determining the extent of costs.

Costs capping: In exceptional circumstances, the court may issue a judicial review costs capping order to limit the costs payable by the claimant or defendant. This can provide financial protection and assurance to a party in the case.

The procedural requirements, from the initial application for permission to the substantive hearing, ensure that this process is conducted with transparency and due process. Understanding these requirements of judicial review is essential to navigate this legal avenue effectively and uphold principles of justice and the rule of law. These requirements enable judicial review to serve as a powerful tool for individuals and organisations to challenge decisions that may infringe upon their rights, contributing to a just and accountable society.

You can learn more about this topic with our Public Law and Administrative Law notes.

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