Welcome to ‘Did You Know?’, Hempsons’ publication designed to keep you informed about the latest legal developments, legislation, and noteworthy case law across our sectors.

In this edition, we look at ‘judicial review’ – a long-standing function of the Courts, enabling it to consider the challenges to the lawfulness of decisions, acts or omissions by public bodies.  In this edition, we will look at the role of judicial review in the context of health and social care, the scope of the Court’s powers, and key ‘take-aways’ when preparing or responding to a judicial review.

We hope you find the articles in this edition interesting and useful. If you need any legal assistance, have questions, or wish to discuss any of the issues covered, we would be delighted to hear from you.

Judicial review is a specific type of court proceeding, in which a High Court judge reviews the lawfulness of a decision, act or omission of a public body by looking at how the decision was made. The Court is not, therefore, looking at the case as an ‘appeal’ and will not look at the merits of a case to decide whether or not they would have made a different choice.

Instead, the Court will focus on how the decision was made, including looking at whether the decision was (a) made in accordance with proper procedures and under a lawful power to make it, (b) taking into account the right factors (and only those factors), and (c) is not irrational, or so unreasonable that no reasonable public body could have reached it.

It is a common misconception that where a decision has been challenged within a three month period of when it was made, that it is – axiomatically – within the accepted Court timescale for challenging such decisions. However, the three months is in fact a ‘back-stop’ for bringing any challenge. The Courts have been clear that they will expect any challenge to be brought ‘promptly’ – which may well be sooner than three months from the date of the decision. What is sufficient ‘promptness’ in any case will depend on the facts, but the Court’s own decisions make clear that it will not always be three months in every case.

Not every person can bring a judicial review challenge, or in every case. In addition to demonstrating the claim is being made in time, claimants need to establish that they have a sufficient interest (or ‘standing’) to bring the claim. What amounts to a ‘sufficient interest’ depends on the facts, but has been found not to include ‘campaign’ or ‘public interest’ organisations (such as the Good Law Project) where they cannot establish a sufficient interest.

Equally, the Courts will also expect claimants to show that they have tried all reasonable alternative remedies – this is because judicial review is a ‘remedy of last resort’. While this does not always require them to try every avenue, the Courts will decline to hear claims where a clear and effective alternative route to remedy is available.

Even where a claim is brought in time, by an individual or organisation with ‘standing’ to bring it, the Courts must then grant ‘permission’ to proceed with the claim. This requires the Court to review the claim to consider whether it raises an arguable case.

Judicial review is concerned with challenges to ‘public’ decisions. Judicial review proceedings are therefore different from private law proceedings because the interests at play are, generally, not just those of the parties to the litigation. As ‘public’ law decisions are predominantly taken by public bodies, they are most often the bodies whose decisions are challenged.

However, this also means that (a) not all decisions of public bodies can be judicially reviewed, if they are not ‘public’ decisions, and (b) certain decisions of private bodies if they are – in fact – ‘public’ law decisions, can be challenged by judicial review. The best example of decisions falling in the first category are employment decisions, which are essentially ‘private law’ decisions, even where taken by a public body. Equally, an example of the latter is where a private company is exercising and discharging a public function e.g. certain private health bodies, housing associations, or regulatory bodies.

At Hempsons, we advise and represent a wide range of health and social care professionals and organisations in judicial review matters, from the pre-action and advice stages, through to substantive hearings in the High Court.

We have substantial experience of bringing and defending judicial review proceedings, and regularly advise our clients on the tenets of lawful decision making.

To find out more about our services and to contact the team, visit our website.

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