Judicial review claims by councils rise but permissions drop, says report
The number of judicial review claims brought by local authorities has risen steadily since 2021, but permissions have fallen, a report from law firm Burges Salmon has found.
The research report, Navigating Public Sector High Court Litigation in England and Wales, noted that more than 800 claims were lodged by councils in 2024, but just 104 were granted permission to be heard.
The report, published by Burges Salmon in collaboration with litigation intelligence platform Solomonic looks at public sector High Court cases overall and includes data on central government, police forces and local authorities.
It is based on data from more than 7,600 High Court cases dating back to 2014 involving more than 1,000 public sector parties based in England and Wales.
The report noted that High Court litigation involving public bodies accounted for 12% of High Court litigation cases over the last decade – and in 80% of those cases, the public sector organisation is the defendant.
The report said that in cases where the claimant is a public sector body, the majority of the time (63% of cases), the claimant is a local authority.
According to the report, public sector High Court litigation has steadily fallen since 2014. This is due to a significant decrease in claims against central government.
However, the research revealed an increase in claims brought by the public sector. This was largely driven by a rise in applications by local authorities in the last four years.
It revealed that 611 applications were lodged by local authorities in 2021, rising to 628 applications in 2022, then 742 applications in 2023 and finally 844 applications in 2024.
However, the number of local authority cases that received permission to be heard fell in the same period, from 229 cases in 2021, then 248 cases in 2022, down to 191 in 2023 and 104 cases in 2024.
The report said it was “unclear” why there has been a drop in the number of cases receiving permission.
The report meanwhile noted that local authorities were involved in 34% of all public sector High Court litigation cases over the last decade, more than any other public sector body.
Central government came second, appearing in 30% of all public sector High Court litigation cases.
According to the report, more than two-thirds of all public sector High Court litigation ends in a settlement, while around a quarter results in a judgment. Two percent of cases are withdrawn.
The research also revealed that the time taken to resolve a case has been increasing for both public sector litigation and other High Court litigation. The public sector is in addition shown to have different tendencies to settle compared to other types of proceedings.
The report meanwhile warned that public sector use of artificial intelligence could be the subject of future litigation.
It predicted that the type of AI disputes will be highly fact specific and would cover a range of legal issues, including procurement disputes, contractual disputes, and judicial reviews.
It also said that claims in AI cases could originate from a range of claimants, such as contracting third parties, members of the public or from the public sector organisation itself.
Tom Whittaker, a director in Burges Salmon’s Dispute Resolution team, comments: “The analysis illustrates that litigation has continued to change for public sector organisations over the last ten years, with notable changes since the start of the Covid-19 pandemic. It is difficult to say whether this is the new normal, especially as we expect factors such as greater adoption of technology and changes in legislation to impact the risks of future disputes for the public sector.
“Our analysis suggests that the experiences of the public sector in High Court litigation are in many ways consistent with that of other parties. However, on closer analysis, we can see that there are notable differences in some areas, including significant differences in how litigation plays out for different types of public sector organisations such as in how frequently they settle claims, and how likely they are to bring claims.”
Adam Carey
