Public law and judicial review

Judicial review asks whether a public body acted lawfully, not whether it decided correctly. That distinction decides most cases.

The grounds

Narrow, and deliberately so. A judge does not substitute their view for the decision-maker’s.

Illegality — misapplying the law or the policy, asking the wrong question, acting outside the powers conferred, or fettering a discretion by applying a policy rigidly without considering the individual case.

Procedural unfairness — failing to give an opportunity to respond, failing to follow a promised procedure, bias or the appearance of it, or failing to give reasons where they are owed.

Irrationality — a decision no reasonable decision-maker could have reached. A high threshold, and rarely the strongest ground.

Failure to have regard to relevant considerations, or having regard to irrelevant ones — including, for public bodies, the public sector equality duty, which requires due regard to eliminating discrimination and advancing equality of opportunity. A body that made a decision affecting people with a protected characteristic without any equality analysis is vulnerable on this ground, and it is frequently overlooked.

“The decision was wrong” is not a ground. “The decision was reached by a process not open to them” is.

Who and what can be challenged

Local authorities, government departments, regulators, the NHS, licensing authorities, schools and universities in respect of public functions, and other bodies exercising public functions — including some private bodies where the function is public in nature.

Decisions, policies, failures to decide within a reasonable time, and failures to act where there is a duty to.

The pre-action stage

Before issuing, a pre-action protocol letter sets out the decision challenged, the grounds, and what you want done, with a short period to respond.

A significant proportion of claims never reach court because the body reconsiders at this stage. That makes the letter the most valuable document in the process and, for many clients, the point at which the matter resolves — at a fraction of the cost of proceedings.

If cost is a concern, this is where to spend.

Deadlines

A claim must be brought promptly, and in any event within the time limit that applies — which is short, and shorter still in some fields including planning and procurement.

Promptness is a separate requirement from the outer limit. A claim brought inside the limit can still be refused permission for delay. There is no safe period of waiting.

Costs, stated plainly

Costs follow the event. The losing party is generally ordered to pay the other side’s costs, which is the major difference from tribunal work.

Permission is a hurdle. Claims are filtered at a permission stage, and a claim refused permission still carries costs exposure.

Cost capping may be available in some public interest cases, which is worth exploring early where it might apply.

We will give an honest view of prospects before you commit, including when that view is that the claim should not be brought.

What we do

Assess whether there is a genuine public law ground as opposed to a decision you disagree with — which is the first and most important filter. Draft the pre-action letter. Issue and instruct counsel where necessary. And act urgently where a decision is about to take effect.

What it costs

£400 per hour plus VAT with an estimate by stage. The pre-action letter can be fixed-fee, and for most clients it is the sensible first commitment — it caps the initial spend and it is where a good proportion of these matters are won.

Questions

Questions people ask us

Is judicial review an appeal?

No. An appeal reconsiders the decision; judicial review asks whether it was made lawfully. A judge will not substitute their own view of the merits.

How long do I have?

Short, and you must also act promptly, which is a separate requirement. Some fields have shorter limits still. Take advice immediately.

What if I lose?

Costs generally follow the event, so you may be ordered to pay the other side’s costs. That risk should be understood before anything is issued, and cost capping may be available in some public interest cases.

They ignored the equality impact. Is that a ground?

Potentially. The public sector equality duty requires due regard to eliminating discrimination and advancing equality of opportunity, and a decision taken with no equality analysis at all is vulnerable. It is frequently overlooked.

Is there a cheaper option?

Often — a pre-action letter, a complaint to an ombudsman, or a statutory appeal route where one exists. We will tell you if any applies before you commit to litigation.

The hub

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