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Defending a claim for judicial review

Predeterminiation iStock 000016468646Small 146x219This LexisPSL Public Law checklist, produced in partnership with Stephen Hocking of DAC Beachcroft highlights the key steps and considerations for defending a judicial review claim.

On receipt of pre-action protocol letter

Ensure the pre-action protocol for judicial review has been followed

- The pre-action protocol for judicial review should be followed unless extreme urgency or other good reason dictates otherwise.

- Failure to do so may have cost consequences and should be drawn to the court's attention in the acknowledgement of service.

Ensure the claim is within time limit for judicial review

- Although it is more of a concern for the claimant, note that the need to comply with the pre-action protocol does not affect the obligation to bring a claim promptly and within three months of the grounds arising (unless an alternative time-limit applies).

-,See Practice Note: Judicial review—time limits and the pre-action protocol under the headings Time limits and Interplay between complying with the pre-action protocol and the time limits for bringing a judicial review claim.

Triage applying the basic tests for a claim

•     Immediately on receipt of a pre-action letter a high level triage should take place:

Criteria  Points to note Further guidance
Is the threatened claim against the correct defendant (did the named defendant actually take the action or decision complained of)?
Where the named defendant is not responsible for the action or decision complained of, the claimant should be promptly informed. It is not necessary or appropriate to seek to respond to the claim in any more detail.

Practice Note: What is a public authority?

Practice Note: Judicial Review—how to start proceedings

Is the threatened claim actually a public law matter (as opposed to, say, a claim in tort or for breach of contract)? Where the threatened claim is exclusively not a public law matter, the claimant should be informed. It would be good practice to pass the pre-action letter to the team which would be responsible for responding to the relevant private law claim and for them to reply substantively. Practice Note: Judicial review—what it is and when it can be used
Is the threatened claim reasonably clear? If the threatened claim is not clear (ie, comprehensible) it will usually be appropriate and necessary to ask the claimant to clarify the complaint, stating that the pre-action letter cannot be replied to until this is done. This should be done only if truly necessary, and not merely if a claim is disorganised, badly expressed, or does not explicitly identify recognised public law concepts. For litigants in person regard should be had (here and throughout) to the possibility that they have a relevant protected characteristic which hinders them in engaging with the defendant, (for example, a learning difficulty) and if so what steps if any might be desirable under the Public Sector Equality Duty. Practice Note: Public sector equality duty
What is the date of the action or decision complained of and when will time to bring a challenge expire (or has it expired already)? If limitation has expired this point will be taken in the pre-action reply (below, but be aware the Court may extend time under CPR 3.1(2)(a) and see the notes to CPR 54.5). If it has not expired the date should be diarised. If a claim form is issued it should be served within seven days, so a likely window for service (and hence acknowledgement, see below) can be identified. If it is thought that witness evidence might be needed with the acknowledgement, the availability of the potential witness(es) during the likely period for preparing the acknowledgement should be established.

Practice Note: Judicial review—time limits and the pre-action protocol

Practice Note: Judicial review time limits—extensions and urgent cases

Discharging the duty of candour

- If a claim passes the basic tests above, immediate consideration should be given to the preservation of documents and the discharge of the duty of candour throughout any possible case.

- It is essential to appreciate that the duty of candour extends beyond information relevant to complaints actually made, and encompasses all material relevant to the legality of the action/decision under challenge. It also applies at all stages of the case.

- It is advisable to document steps taken to discharge the duty of candour.

- See Practice Note: Duty of candour (defendant’s) and disclosure requirements.

Responding to the pre-action letter

- Typically a defendant is given 14 days to reply to a pre-action letter.

- Adherence to the Pre-action protocol for judicial review does not stop time running. Claimants may give a defendant less time to reply, particularly if the time limit for a challenge is approaching. If more time is needed a holding reply should be sent proposing a reasonable extension, giving reasons.

- The pre-action reply should be in a standard form set out at Annex B to the Pre-action protocol for judicial review. Relevant documentation should ordinarily be disclosed at the same time. Where this is not possible, reasons should be given.

- If the claimant is a litigant in person, the defendant must serve a copy of the Pre-action protocol for judicial review on the claimant with the response (regardless of whether or not it is clear that the claimant is aware of the protocol).

- The reply to a pre-action letter is a defendant's first opportunity to state its case. It should be exploited in full, with a view to complying with CPR 1.3 by narrowing or eliminating issues in dispute, to setting out the defendant's substantive case early, and to position the defendant favourably for any costs arguments. However caution as to detail is needed as the defendant may not have conducted a full review of all potentially relevant documents, and is unlikely to have made any progress with witness evidence.

Deciding whether to defend

- In some cases the defendant may have no choice (if it is a tribunal and is functus, for example). Otherwise the questions are: is the case properly defensible? Is it cost effective to defend?

- Where a review of the pre-action letter, the defendant's documents and likely case leads to the conclusion that the action/decision complained of is likely to be found to be legally flawed, that conclusion should be admitted to the claimant and arrangements made to retake the action/decision lawfully. Conceding the case at this stage should avoid costs liability.

- Where the review suggests the action/decision will be likely to be found to be legally robust, it is necessary to defend the case. The decision cannot be improved by being revisited, and there is an expectation that public bodies will exercise their powers and implement their decisions without being deflected by the threat of challenge.

- Where the review suggests that the action/decision will be found to be legally robust, but there is significant uncertainty, the defendant should decide whether it is cost effective to defend. Where the uncertainty as to the legality of the decision stems from an action or inaction of the defendant, it may be both appropriate and cost effective to re-take the decision 'correcting' the arguable defect. The more arguable the defect, and the fewer people other than the claimant who are affected by the retaking of the decision, the more appropriate this may be. Where the uncertainty stems from an uncertainty as to the state of the law it is unlikely to be appropriate to retake the decision. The retaken decision will be no more certain.

Where the decision referred to was taken more than 3 months ago

- Particular care is needed where a decision was taken more than three months before the pre-action letter, and the pre-action letter expressly or by implication invites the defendant to reconsider its decision.

- Reconsideration may defeat what would otherwise have been a good point on timing. The pre-action reply must be clear whether it is explaining the past decision, or whether a reconsideration and a fresh decision have taken place.

- See Practice Notes: Judicial review—time limits and the pre-action protocol and Judicial review time limits—extensions and urgent cases.

Use of alternative dispute resolution

- If the claimant has proposed ADR it is necessary to consider this specifically and to give reasons if the proposal is rejected.

- If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. There may be adverse cost consequences if this is not done.

- See Practice Note: ADR and the CPR—court’s approach pre-action.

Interested parties

- The pre-action correspondence should identify any interested parties to the proposed claim. Interested parties are persons directly affected by the claim.

- See Practice Note: Judicial review—Interested parties and interveners.

On receipt of claim form

Claim form with no pre-action protocol

- If a pre-action letter was not sent, the claim form will be the first indication that a claim is threatened.

- The actions set out above should be carried out, save that an acknowledgement of service and summary grounds of resistance will be prepared rather than a pre-action reply.

- In those circumstances the fact that the claimant has not complied with the pre-action protocol should be highlighted, unless the reason for not having done so is obvious and legitimate.

Questions immediately on receipt of a claim form

- Are the grounds of claim substantially the same as foreshadowed in the pre-action correspondence?

- Are the remedies sought substantially the same as foreshadowed in the pre-action correspondence?

- Does the evidence filed with the claim cast the decision to defend the claim into doubt?

- Are there any interested parties not named by the claimant?

- Does the claim seek expedition, an interim remedy, a protective costs order (PCO) or judicial review costs capping order (JRCCO)?

- If the claim seeks expedition or an interim remedy it will be necessary to respond within a shortened timescale and/or to address the question of interim remedy, PCO or JRCCO. See also Practice Notes: Costs for judicial review—general principles and Costs for judicial review—protective costs orders (PCOs), judicial review costs capping orders (JRCCOs) and interveners

- Should the decision be suspended? Without the grant of interim relief, lodging a claim for judicial review does not prevent the defendant implementing the action/decision under challenge. A pragmatic decision on whether voluntarily to suspend the decision should be reached, taking account inter alia: the strength of the case; the effect on interested parties; the likely timescale of a challenge, and the ease or difficulty with which a decision could be reversed if found to be unlawful

The defendant should consider making its own application for expedition if it voluntarily decides the decision is suspended.

Strength of case assessment

- The strength of the case must be re-assessed in light of the claim as pleaded and its supporting evidence.

- The defendant should re-evaluate whether it is correct to defend the case, and if not the case should be conceded.

- Particular issues to investigate in most cases include: Were the defendant's own processes followed? Does the defendant have any relevant policy and if so was it followed or taken into account? Was the decision taken by the correct individual or body? Was due regard had to any relevant equality issue? Does any record or communication of the decision correspond with relevant policies and processes?

- The discharge of the duty of candour should be revisited to establish whether any additional information has become relevant in light of the claim as now put.

Filing the acknowledgement of service

- The acknowledgement of service must be filed within 21 days of service of the claim form.

- It must be served on the claimant and any other person named in the claim form within seven days of filing, and sooner if practicable.

- Form N462 is required along with summary grounds of resistance. The documents filed in the claim bundle should be checked. Any important documents not included should be filed with the acknowledgement of service, as the defendant is under a duty to assist the court. Witness evidence is not required, (the rules are silent but in practice it may be filed).

- A judge considering permission on the papers will not have time to review a large body of evidence, nor is this appropriate for a decision on permission, so any evidence should be short and directly relevant to a ground on which permission might be refused). In any case early consideration should be given to who within the defendant will review the form N462 and summary grounds as these must be verified with a statement of truth.

- If costs are sought in the event permission is refused a form N260 should also be filed (see Mount Cook Land [2003] EWCA Civ 1346 and Practice Notes: Avoiding a judicial review and Judicial Review—how to start proceedings).

- The acknowledgement of service must set out a summary of grounds on which the claim is contested. In practice the summary should at least: provide an outline of the substantive grounds on which the case will be defended (there may at least be costs consequences if this is not done); and provide full detail on any points on which the defendant realistically anticipates permission may be refused, including arguments raised under section 31(3) of the Senior Courts Act 1981 (SCA 1981), (see below)

In a particularly weak case the court should be invited to rule that the case is totally without merit at the same time as refusing permission.

- See Precedent: Summary grounds of resistance on behalf of the 1st, 2nd etc defendant.

Permission decision—points to note

- SCA 1981, s 31 (as amended) requires the court to refuse to grant relief on application for judicial review if it appears highly likely that the outcome for the applicant would not have been substantially different had the conduct complained of not occurred. The court may disregard this requirement for reasons of 'exceptional public interest'. The court may consider this question of its own motion, but must consider it if the defendant asks the court to do so. This requirement is expected to reduce the number of cases, as applications made solely as a tactical or delaying objective may be disposed of at the outset.

- Under amendments introduced by CJCA 2015, the court in future will be obliged to refuse permission if certain specified information about the financing of the claim has not been provided (see: SCA 1981, s 31(3) as amended).

Receipt of permission decision

Effect of permission decision

- Permission may be given, given for only some grounds, or refused.

- Unless permission is granted for all grounds, and provided the application was not certified as totally without merit, the claimant may request an oral reconsideration of the decision. The request must be filed within seven days of receiving the reasons for the decision. (CPR PD 54A para 8.5-6)

- The defendant is not required to file any further document or to attend the hearing (unless the Court directs otherwise) and it is not usual to do so. The costs of attending any hearing will not usually be awarded to the defendant.

- Unless permission is refused on all grounds, the defendant should reconsider the merits of the case in light of the Order made by the Court.

Detailed grounds

- Within 35 days of service of the Order giving permission the defendant must file detailed grounds of resistance, together with any evidence on which the defendant will rely which was not filed with the acknowledgement of service.

- If witness evidence is required and was not filed with the acknowledgement of service, it should be filed with the detailed grounds.

Skeleton arguments

- Skeleton arguments are due from the claimant 21 days before the hearing, and from the defendant 14 days before (CPR PD 54A says working days in both cases, this is thought to be an error). CPR PD 54A, para 15.3 details the required content as: a time estimate for the complete hearing, including delivery of judgment; a list of issues; a list of the legal points to be taken (together with any relevant authorities with page references to the passages relied on); a chronology of events (with page references to the bundle of documents); a list of essential documents for the advance reading of the court (with page references to the passages relied on) (if different from that filed with the claim form) and a time estimate for that reading; and a list of persons referred to.

- Skeleton arguments may be and most conveniently are filed electronically, to the correct dedicated email address given on the Administrative Court website.

- The claimant must also file the hearing bundle(s) at the same time as his/her skeleton argument, which must include any documents requested by the defendant.

This checklist produced in partnership with Stephen Hocking of DAC Beachcroft was originally published in LexisPSL Public Law. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL.

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