Judicial review is the process of challenging the lawfulness of decisions made by public authorities. It is important to understand that a judicial review is not a re-run of the merits of the decision but a challenge to the way in which it was made.
This page provides an overview of the process and time frames for judicial review and statutory challenge
Public Law Statutory Challenges
Whilst there are minor procedural differences that can trip up even lawyers who are not well-acquainted with such challenges, from a client’s perspective statutory challenges in public law claims relating to environmental or planning law will usually operate very similarly to judicial review. For instance, challenges relating to the decision of a planning inspector, or those relating to rights of way, village greens, or the adoption of a local plan, are all claims that must be brought by way of a statutory challenge but where the procedure and legal framework is quite similar to judicial review.
If a claim is successful the usual result is that the decision is “quashed”. In turn this usually means that the decision must be taken again. In planning cases, this means that the application will be reconsidered having rectified any defects found, e.g. with EIA or other required information. We find that where there is a legal problem with a decision, there is often a substantive one too. It may well mean that in practice the decision cannot or will not be taken again with the same results.
Judicial review requires permission from the Court. One of the most important requirements is that the application for permission is made within the short time during which such claims are allowed. For planning claims, the application must generally be made within 6 weeks of the date of the decision. For non-planning cases the time limit is likely to be that a claim is made “promptly” and in any event within 3 months minus a day. The time limits are strictly applied. In all cases it is best to avoid problems by taking advice as soon as possible after the decision you may wish to challenge is made.
The first procedural step is to write a formal letter to the proposed defendant setting out your proposed claim and what you are seeking. This is known as a pre-action protocol (PAP) letter. Normally a response is expected within 14 days. In cases challenging a grant of planning permission, the 6-week time limit to issue a claim does not leave much time for pre-action correspondence, and so it is especially crucial that you take advice immediately upon any decision being issued (or ideally before issue, if you know it is likely).
If the response to the pre-action protocol (PAP) letter is unsatisfactory, you may apply for permission by lodging your claim in Court. The test for obtaining permission to proceed is that your case is arguable. The Court will weed out cases where it does not consider there is an arguable error of law. If permission is refused, you can “renew” your application to be heard in open court. Our experience is that permission is often refused on paper but granted upon renewal in open court.
If permission is granted, the claim can proceed. A further round of pleadings (and sometimes evidence) is exchanged between the parties which culminates in a full hearing in the High Court. Hearings usually last for a day, although in more complex cases, they may take longer. The period of time between first instructing solicitors and receiving judgment (often several months after the hearing) can last a year.
Many cases settle at some point during the judicial review process, but in our experience, perhaps the most likely time at which a Defendant may re-evaluate its case and make an offer of settlement is shortly after the grant of permission.
Rules about costs are complicated. However, there are protections in place which (at least in theory) should prevent environmental claims (including planning claims) from being “prohibitively expensive”. The general rule remains that the loser pays the winner’s costs, but usually one can obtain protection from the risk of paying opponent’s costs beyond a specific level. If you are considering bringing a judicial review or statutory challenge, we can of course advise you further about this subject.
If a judgment is not in your favour, we may advise that there is merit in appealing to the Court of Appeal. However, like the initial stage of judicial review, this requires permission and carries with it its own costs implications.
See BELOW Public Law Project JR Guide