Recent Developments in Judicial Review Procedure

Since October 2000 the procedure governing judicial review claims has been contained in Part 54 of the Civil Procedure Rules (CPR), as explained in our April 2001 Public Law Briefing. Recent months have seen a number of important additions to the rules of procedure for judicial review, addressing the steps to be taken by the parties before proceedings commence, and the procedure for cases which require urgent consideration in the Administrative Court. These new rules fill in a number of gaps in the rules relating to the commencement of judicial review proceedings.

The Pre-Action Protocol for Judicial Review

The Pre-Action Protocol for Judicial Review came into force in March 2002. To an extent it simply codifies existing good practice regarding the steps that parties should take before proceedings are begun. The position prior to March was that a Claimant for judicial review should normally write a letter before action, and faced potential costs consequences for failing to do so ( R v. Horsham District Council ex parte Wenman [1995] 1 WLR 680). Similarly, a Defendant public authority could be penalised in costs for behaving in a way which the Court felt was unreasonable. This position has now been formalised in the Protocol.

When the Protocol applies

The Protocol includes guidance as to the circumstances in which a judicial review claim is suitable. It highlights the need to exhaust all alternative procedures before commencing judicial review proceedings. A recent case in which this principle was applied was R (Kurdistan Workers' Party) v. Home Secretary (unreported, 17 April 2002), where Richards J held that a statutory appeal procedure should have been pursued instead of judicial review. The Protocol also notes that judicial review will not always be appropriate. For example, some issues should properly be raised in a forum other than the Administrative Court. Recent cases in which the Courts have applied this principle include R (Assisted Reproduction and Gynaecology Centre) v. Human Fertilisation and Embryology Authority (unreported, 13 January 2002), where the Court of Appeal held that the authority's scientific and ethical judgments concerning fertility treatment were not susceptible to legal challenge.

The Protocol states that all Claimants will need to satisfy themselves whether they should follow the Protocol, depending on the circumstances of the case. The Protocol will not be appropriate where the Defendant does not have the legal power to change the decision being challenged. However, where judicial review is appropriate, the Court will normally expect all parties to have complied with the Protocol and will take into account compliance and non-compliance when giving directions for...