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Broadbent: Public Law Directions

Chapter 11

1. What is judicial review?

Remember that judicial review is a process whereby the legality of a decision can be examined.  It differs from an appeal in that it is not in the form of a rehearing of the evidence and is usually solely concerned with matters of law.  When exercising the function of judicial review the court is not concerned with the question of whether the decision is right or wrong but rather with the question of whether the decision was one the decision maker could lawfully have come to. As such, the question is largely, though not exclusively, concerned with the process leading to the making of the decision rather than with the decision itself, although if a decision has been reached which is contrary to reason then it can be overturned.

2. Who may bring a claim for judicial review and against whom may a claim be brought?

There are limitations on judicial review relating to both the person bringing a claim and the person against whom the claim may be brought. Only a person with sufficient interest can bring a claim –the object is to prevent busybodies from b ringing frivolous claims and wasting the court’s time.  The claim may only be brought against a public body exercising public law functions. A public body has been fairly widely interpreted to include not only central and local government but also other administrative bodies that exercise statutory powers. Public law functions are essentially those undertaken by a public body when exercising statutory powers.

3. What type of dispute can be challenged by a claim for judicial review?

Remember that judicial review is a process concerned with public bodies exercising statutory powers, though also, in the case of central government, including the royal prerogative. The case is brought by the Crown on behalf of the individual against the public body. It can only be pursued where the public body is exercising public law functions which, in most cases, means they are exercising statutory powers. Where a public body is exercising functions in private law, for example in relation to individual contracts of employment or for goods or services, remedies lie in the ordinary claims for breach of contract etc that any individual or organisation might bring through a claim for damages.

4. What are the main procedural requirements involved in a claim for judicial review?

Claims for judicial review proceed in two stages, following the correct submission of appropriate forms. First there is a requirement that the claimant must obtain permission form the court to proceed. This is essentially a weeding out process to ensure that the court’s time is not taken up with claims that have no merit. Very few cases fail at this stage, and being given permission does not necessarily mean that the claim will ultimately succeed. The case then proceeds to a full hearing when the case is heard in full.