The Pre-Action Protocol for Judicial Review sets out a code of good practice and contains the steps which parties should normally follow before making a claim for judicial review. The Protocol encourages the parties to exchange information at an early stage and to consider using a form of alternative dispute resolution.
When does the Pre-Action Protocol for Judicial Review apply?
The Protocol applies to all judicial reviews. Judicial review is a procedure which allows people with a sufficient interest in an action or decision of a public body to ask a judge to review the lawfulness of an enactment, a decision, an action or a failure to act in relation to the exercise by the public body of a public function.
When will it not be appropriate to follow the Protocol?
Claims which are likely to become time-barred
Claims for judicial review must normally be made within 3 months after the grounds to make the claim first arose. The Court does have the discretion to allow a late claim, however, this is only used in exceptional circumstances. Compliance with the Protocol alone is unlikely to be a sufficient ground for making a late claim. For this reason where the claim may become time-barred the Claimant is not expected to follow the Protocol.
Claims where the Defendant does not have the legal power to change a decision
The Protocol will not be appropriate where the Defendant does not have the legal power to change the decision being challenged.
The Protocol will not be appropriate in urgent cases, for example, where a Claimant is due to be removed from the UK or there is an urgent need for an interim order. In emergency cases the Protocol provides that it is good practice to fax to the Defendant the draft Claim Form which the Claimant intends to issue or for a Claimant to notify a Defendant when an interim mandatory order is being sought.
What are the requirements of the Pre-Action Protocol for Judicial Review?
The letter of claim
The Claimant is required, before making a claim, to send to the Defendant a letter of claim. The purpose of the letter of claim is to identify the issues in dispute and establish whether Court proceedings can be avoided.
Claimants are encouraged to use the suggested standard format letter of claim annexed to the Protocol. The Protocol specifies what information the letter of claim should contain.
The Claimant should specify in the letter of claim when he expects the Defendant to respond. Normally this should be within 14 days. Court proceedings should not normally be commenced before that date, unless the circumstances of the case require immediate action to be taken.
The Defendant’s response to the letter of claim
Defendants are encouraged to respond using the standard format letter of response annexed to the Protocol. Normally they should respond within 14 days of the letter of claim. If they fail to do so without good reason the Court may take this into account when it decides the question of costs.
If a Defendant is not able to respond within the proposed time limit he should send an interim reply and propose a reasonable extension giving reasons why an extension of time is needed. Where required, additional information should be requested.
The Claimant is not required to agree to an extension of time. However, if the Court takes the view that any subsequent claim was made prematurely the Court may take this into account when it decides the question of costs.
If the claim is conceded in full, the letter of response should make this clear.
If the claim is conceded in part or not conceded at all, the letter of response should make this clear and should:
- Where appropriate, contain a new decision, clearly identifying what aspects of the claim are being conceded and what are not, or give a clear timescale within which the new decision will be issued;
- Where appropriate, provide a fuller explanation for the decision;
- Address any points of dispute, or explain why they cannot be addressed;
- Enclose any relevant documentation requested by the Claimant, or explain why such documents are not being enclosed; and
- Confirm whether or not they will oppose any application for an interim remedy, where appropriate.
The letter of response should be sent to all interested parties identified by the Claimant and should set out details of any other parties who the Defendant considers also have an interest.
Alternative dispute resolution
The Protocol expects the parties to consider alternative dispute resolution procedure as an alternative to judicial review. The Courts take the view that judicial review should be a last resort and may require parties to provide evidence that alternative means of resolving their dispute were considered.
The protocol sets out some of the options the parties may wish to consider for the purpose of resolving their dispute. These are discussion and negotiation, early neutral evaluation by an independent third party and a complaint to the Parliamentary and Health Service Ombudsman or to the Local Government Ombudsman.
The Protocol, however, recognises that parties cannot and should not be forced to enter into any form of alternative dispute resolution procedure.
What happens if a party does not act in accordance with the Protocol?
The Court has a very wide discretion when it comes to awarding costs. When determining costs the Court will take into account the conduct of the parties including whether the parties have complied with the Protocol.
When considering whether a party has complied with the Protocol the Court will be concerned about whether the parties have complied in substance and is unlikely to be concerned with minor or technical shortcomings. The Court will also consider the proportionality of the steps taken compared to the size and importance of the matter, will take account of the urgency of the matter and will look at the effect of non-compliance on the other party.
A single minor breach by one party will not exempt the other party from following the Protocol.