Judicial Review — SQE1 FLK1 Legal System

Your client is a residents' association. On 4 March their council resolved to dispose of a public open space to a developer. They heard that week, took advice in mid-March, then did nothing. They want to challenge it now, eleven weeks on, inside the three months everyone told them they had. In time? Not necessarily.

That gap, between the deadline candidates remember and the rule that decides the case, is what this topic is made of. Judicial review is how the High Court polices the lawfulness of public power. Keep the association in mind. The reason they may lose has nothing to do with whether the council was right.

Here is the route. What judicial review is, and what it is not. Then four gates every claim must pass: which decisions can be challenged, who may bring one, by when, and whether the client should have gone somewhere else. Then the four grounds. And last, remedies, and why winning may get you nothing.

Start with what the court is doing. Judicial review is how the High Court reviews the lawfulness of decisions, actions and failures to act by public bodies. It is a creature of the common law, with the procedure in Part 54 of the Civil Procedure Rules and the remedies in the Senior Courts Act 1981.

The jurisdiction is supervisory. The court asks whether the decision was reached lawfully, not whether it was the right decision. Win, and the decision is usually quashed and sent back to be taken again, lawfully this time. The decision-maker may reach exactly the same conclusion. That is not a failure of the claim.

An appeal is the opposite. It asks whether the decision was wrong, and lets the appellate body substitute its own decision. Judicial review asks only whether it was made lawfully. This is the single most heavily tested distinction in the topic. So ask one question first: is the complaint about process and legal limits, or about the merits? Merits point to a statutory appeal, if one exists, or to nothing at all.

Parliament conferred the power for a purpose, and the courts enforce the limits Parliament set, so judicial review supplements parliamentary sovereignty rather than challenging it. Claims go to the Administrative Court, part of the King's Bench Division of the High Court, whatever the sums involved.

Gate one. Is this a public law decision by a body amenable to review? Ministers, departments, local authorities, the police, regulators and inferior tribunals are all amenable in principle. The starting point is the source of the power: statute or prerogative, and the body is normally in.

But source is not the only test. Picture an association regulating a financial market. No statutory powers. Yet no firm can operate without its approval, and ministers accept that without it a statutory regulator would be needed. Amenable? Yes: it performs a public regulatory function government would otherwise have to perform itself.

That is the Datafin principle, from 1987. A body can be caught by the nature of what it does, not only by where its power comes from. Now run that idea the other way.

Being a public body does not make everything it does reviewable. A county council dismisses a highways engineer under an ordinary contract of employment. He says the contractual redundancy procedure was ignored, and that a manager who had complained about him sat on the panel. Judicial review? No.

The council was exercising private law rights, and that belongs in the employment tribunal. Ask about the character of the decision, never the identity of the decision-maker. The superior courts are outside altogether: the High Court, the Court of Appeal and the Supreme Court are not supervised by the Administrative Court.

Gate two: standing. The court must not grant permission unless the claimant has a sufficient interest in the matter to which the application relates. That is s.31(3) of the Senior Courts Act 1981, and it is read generously. The concern is the officious busybody, not the serious challenger. An expert campaigning organisation usually qualifies even with no member affected.

Gate three is time, and here is your residents' association again. Under CPR 54.5 the claim form must be filed promptly, and in any event not later than three months after the grounds first arose. Two requirements. Not one. They filed on 28 May, eleven weeks after the resolution, inside the three months.

But in those eleven weeks contracts were exchanged, the developer discharged planning conditions at substantial cost, and works began on site. Prompt? No. Three months is a long-stop, not a deadline. It caps how far promptness could stretch. Advise a client to act at once, never to use the time available.

Some claims are tighter. Planning decisions: six weeks, under CPR 54.5(5). Public procurement: 30 days. Time runs from when the grounds first arose, normally the date of the decision. Not the date the claimant found out. Challenge a policy, and it runs from adoption, not from each later application.

An internal complaint or the ombudsman does not stop the clock. And even a claim in time can die of delay: s.31(6) lets the court refuse permission or relief for undue delay causing substantial hardship, prejudice, or detriment to good administration.

The procedure is short. A letter before claim under the pre-action protocol, normally allowing 14 days to reply. Then the claim form under CPR Part 54, summary grounds of resistance within 21 days, and permission on the papers.

The threshold is arguability with a realistic prospect of success. Not more likely than not. Refused on the papers, the claimant may usually renew orally. Granted, it goes to a substantive hearing.

It is largely a paper exercise. Disclosure is rare and cross-examination exceptional, because the court reviews how the decision was reached, not the facts. Hence the duty of candour: the public body must explain frankly how it decided, producing material that damages its case.

Gate four: alternative remedies. Judicial review is a remedy of last resort. Where a statutory appeal or a specialist tribunal can deal with the complaint, the court will normally refuse permission and send the claimant there. A scenario that hands your client a right of appeal is often the whole question.

Now the grounds. In 1985, in Council of Civil Service Unions v Minister for the Civil Service, Lord Diplock grouped them under three heads: illegality, irrationality, procedural impropriety. Legitimate expectation is now a distinct fourth ground, operating procedurally or substantively.

Illegality is wider than it sounds. Acting beyond the power granted is the classic ultra vires case. But it also covers misdirecting yourself in law, and using a power for a purpose Parliament did not intend. Add irrelevant considerations, ignoring what the statute requires, fettering a discretion, and unlawful delegation.

Improper purpose has the best story. A statute let a minister refer complaints about a marketing scheme to a committee of investigation if he so directed. Producers complained. He refused, because a referral would probably produce a report criticising the scheme and cause political embarrassment. Unlawful.

A discretionary power must be used to promote the policy and objects of the Act that conferred it. That is Padfield v Minister of Agriculture, Fisheries and Food, from 1968. And here is the sentence to carry into the exam hall. A power expressed in unqualified terms is still not an unfettered one.

Considerations next. A council empowered to manage its land for the benefit of its area banned a country sport on moral grounds. Unlawful. That was not a consideration the statute allowed. Where a statute is silent, the courts read the relevant considerations out of its purpose.

Now the limit candidates miss. A licensing authority must have regard to public nuisance, crime and disorder, and economic activity. It considers all three, then weights the economics heavily and nuisance lightly. Residents say the balance is plainly wrong. Any claim? No. Which considerations are permissible is for the court. Weight is for the decision-maker.

Fettering. A body given a discretion must actually exercise it. A woman applies for a hardship payment. Her savings exceed the published threshold, but are held on trust for her disabled son. The refusal reads: the policy permits no exceptions.

That is a fettered discretion. A policy is lawful and sensible. A rule that never bends is not. The decision-maker must stay willing to listen to someone with something new to say. And on delegation: a power given to a named office-holder must be exercised by them, except that under the Carltona principle civil servants may decide in a minister's name.

Ground two: irrationality. The classic formulation comes from a 1948 cinema licensing case, Associated Provincial Picture Houses Ltd v Wednesbury Corporation. A decision may be set aside if it is so unreasonable that no reasonable authority could ever have come to it. Deliberately a very high bar.

Lord Diplock put it harder still: a decision so outrageous in its defiance of logic or of accepted moral standards that no sensible person applying his mind to it could have arrived at it. Successful pure irrationality challenges are rare.

A decision can be harsh, unpopular, poorly reasoned, and still sit inside the range of reasonable responses. Where the real complaint is the weight given to competing factors, irrationality will usually fail. Most claims that look like irrationality run better as illegality.

Ground three: procedural impropriety, in two limbs. First, failing to observe a procedure laid down by statute. An Act says consult everyone appearing to have an interest in the land. The authority consults the owner but overlooks a company whose lease was on the register. The order falls.

Second, the common law rules of natural justice, which apply whether or not the statute says anything. Hear the other side. And no one may be a judge in their own cause.

Fairness usually requires notice of the case to be met, a genuine chance to make representations, and disclosure of adverse material being relied on. Add reasons, where an important interest or a right of appeal depends on them. And what it requires rises with the consequences.

A panel decides whether to strike a man off a register, ending his career. He hears the general concerns, but never of the confidential report the panel relies on. Fair? No. Answering generalities is not answering the case against you.

Then bias, stricter than candidates expect. A claimant never has to prove actual bias. It matters that justice is seen to be done, so appearance is enough. The test comes from Porter v Magill, in 2001. Would a fair-minded and informed observer, having considered the facts, conclude that there was a real possibility that the tribunal was biased?

And separately, a direct pecuniary or proprietary interest in the outcome disqualifies automatically, whether or not the decision-maker even remembered it.

Ground four: legitimate expectation. It arises from a clear, unambiguous and unqualified representation, or from an established settled practice, such that a person reasonably expects it to be honoured. Departing without adequate justification can be an abuse of power. But a promise to act unlawfully creates nothing the court will enforce.

Two kinds. A procedural expectation is an expectation of a process, typically consultation before a change of course. Twenty years of consulting a representative body without exception, with no statute requiring it, is exactly that. Such a practice founded the expectation in that 1985 case.

A substantive expectation is an expectation of an outcome, and much harder. Eight severely disabled residents were promised in writing that a new purpose-built unit would be their home for life. They gave up their accommodation and moved. Five years later the authority decided to close it.

Frustrating a promise given to a small number of identified individuals was so unfair, the Court of Appeal held, as to amount to an abuse of power. That case is Coughlan. But an expectation is not a guarantee. A body may resile where there is a sufficient overriding public interest.

And the promise must be clear. Vague reassurance, a general policy statement, an expression of current intention: none of those will do.

Last, remedies. A quashing order sets the decision aside and sends it back. That is the standard one. A prohibiting order restrains a body from acting unlawfully. A mandatory order compels a public body to perform a public duty, which is what you want when it has failed to decide at all.

Then declarations and injunctions. And damages, which never stand alone: under s.31(4) they are available only if claimed, and only if they would have been awarded in an ordinary private law claim.

Since July 2022, s.29A lets the court suspend a quashing order until a specified date, or limit its retrospective effect so past acts stand. But every remedy is discretionary. And under s.31(2A) the court must refuse relief where it is highly likely the outcome for the claimant would not have been substantially different. Prove your breach. Still get nothing.

A word on how the exam tests this. SQE1 will not ask you to recall case names or section numbers. You get a scenario, five answers, and one instruction: pick the best. So learn the rules. The names in this episode are memory pegs, nothing more.

If you keep only three. Wednesbury, for an irrationality bar set deliberately high, so that courts cannot substitute their own view. Padfield, for the rule that a discretion must serve the purposes of the Act that gave it. And Porter v Magill, for the fair-minded and informed observer, where appearance is enough.

Five traps. One: do not stop at it is a council. A public authority making a commercial or employment decision is not making a public law decision, and judicial review will be offered as the answer to tempt you. Two: the parties cannot agree to extend the time limit. Only the court can. A defendant's promise to take no point on delay is worth nothing if the judge takes it.

Three: proportionality is not a fifth ground. It is the standard where a Convention right under the Human Rights Act 1998 is engaged. An ordinary domestic challenge is judged by Wednesbury irrationality.

Four: standing is satisfied far more often than not. If an option says the claim fails for want of standing, be suspicious. The real problem is usually the time limit, an alternative remedy, or the ground itself. Five: the grounds overlap, so do not agonise over the label.

Quick check. A woman applied to her council for a grant to adapt her home. Fixed annual budget, awarded to those in greatest need. The council followed its published scoring process, gave detailed reasons, and refused her because eleven other applicants scored higher. She accepts the process was correct and the reasons adequate. She says only that it reached the wrong conclusion, and wants the court to award her the grant.

Three candidate answers. One: the claim succeeds, because the court can substitute its own assessment of need. Two: it succeeds, because refusing a grant to someone in genuine need is necessarily unreasonable. Three: it is unlikely to succeed, because her complaint is with the merits rather than the lawfulness of the decision. Pause here if you want a moment.

The answer is three. The court asks whether the decision was reached lawfully, not whether it was right. Her complaint is purely with the council's evaluation of need, and that is for the decision-maker. There is no ground of review to run.

Why the others fail. Option one describes an appeal. Option two turns need into irrationality, but a refusal within a lawful scheme on a finite budget is not irrational merely because the applicant is in need. Note what was not the problem: the decision was amenable, and no alternative remedy existed.

Five things to take away. One: judicial review is supervisory. The court polices how a decision was reached, not what was decided, and a claimant can win and still get the same answer back. Two: clear the gates first. An amenable public law decision, a sufficient interest under s.31(3), promptness as well as three months, no alternative remedy.

Three: four grounds, illegality, irrationality, procedural impropriety and legitimate expectation, and proportionality is not a fifth. Four: on bias, the test is what a fair-minded and informed observer would conclude. Actual bias never has to be proved. Five: every remedy is discretionary, and s.31(2A) can leave a winner with nothing.

And your residents' association? Filed inside three months, and still at risk of being refused permission, because promptness is separate and works had begun. Next time, Constitutional Foundations.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.