What is a Judicial Review?

Judicial Review proceedings fall into the category of Public Law and is a process whereby the Court examines decisions made by public bodies. The Administrative Court is part of the High Court and can deal with cases about judicial reviews, statutory appeals and extradition.

Applying for a Judicial Review encompasses pre-action work and making the Judicial Review application for permission. At this permission stage a court must be convinced that the case has a reasonable prospect of success. If the initial request was refused permission then the application must be renewed at an oral hearing and once permission is granted preparation for the full Judicial Hearing can commence.

As a general rule, costs incurred can not be recovered if a judicial review case settles in the Pre-Action stage. Legal aid is available for many judicial review cases to facilitate access to justice. Costs in Judicial Review cases may be recovered from the Defendant in the event that the Courts award costs via inter-partes costs orders.

The Order will usually state that “the Defendant do pay the Claimant’s costs, to be assessed failing agreement”. In these types of cases, the agreement with the Legal Aid Agency acts as the retainer in the case (in place of a CFA or private agreement for instance, and entitles the Claimant solicitors to claim their costs from the other side.

If you would like more information on recovering costs in legal aid matters, have a look at our recent article.

Applying for Judicial Review

Pre-action Stage:

If you believe a public body has made an unlawful decision, it is important to write to them before initiating legal action. This letter should explain why you think their decision is unlawful and what corrective action you expect them to take.

Additionally, you should indicate that you intend to seek judicial review if they do not agree to take the requested action within a specific time, typically 14 days. This letter is known as a pre-action protocol letter and follows guidelines set out in the Pre-action Protocol for Judicial Review.

The pre-action protocol letter is a key document and should ideally be drafted by a lawyer with expertise in judicial review. Often, a well-drafted letter can prompt the public body to reconsider or withdraw the decision in question. Moreover, their response can help you evaluate the strength of your case. A successful pre-action stage can sometimes resolve the dispute without needing to proceed to judicial review.

Permission Stage:

If the public body does not respond satisfactorily to your pre-action letter, the next step is to apply for permission to pursue judicial review. If you have a solicitor, they will handle the process on your behalf, including preparing court documents, communicating with the public body and the court, and instructing a barrister.

Judicial review cases are filed in the Administrative Court, located in several cities, including London and Birmingham. Certain cases, such as challenges to immigration decisions or decisions made by the First-tier Tribunal, must be filed in the Upper Tribunal.

To start the process, a judicial review claim form and statement of facts and grounds are submitted, along with supporting documents. These are prepared by your legal team and served on the public body and any other affected parties. Once the case is filed, you become the “claimant” and the public body the “defendant.” Anyone else involved in the case is referred to as an “interested party.”

The public body and any interested parties have 21 days to submit an acknowledgment of service, stating whether they will contest the claim. A judge will then review all the documents to decide if the case has enough merit to proceed. The judge can either:

• Grant permission for the case to move forward,
• Deny permission if the case is unarguable,
• Deny permission and certify the claim as “totally without merit,” or
• Order an oral hearing to assess the arguability of the case.

If permission is denied, you have seven days to request reconsideration at an oral hearing at the Court of Appeal, unless the claim is certified as “totally without merit.”

Final Hearing:

If permission is granted, the case will proceed to a final hearing, where the defendant must submit their detailed grounds of resistance within 35 days. The hearing itself is formal, with lawyers from both sides presenting arguments about the lawfulness of the decision being challenged. It’s rare for you to need to give oral evidence, and attendance at the hearing is typically optional.

After the hearing, the judge may give a decision immediately, though it’s more common for the judgment to be reserved and delivered at a later date. Following the judgment, both parties can make submissions about who should bear the costs of the proceedings. Generally, the losing party is required to pay the winning party’s legal costs.

Judicial Review Costs

If the Respondent has failed to respond to your Letter before Action, and proceedings have been issued and permission is granted to proceed to a Judicial Review, in the event that your claim is settled, the Applicant is entitled to recover their legal fees of the proceedings. As a result, a Bill of Costs will need to be prepared and submitted to the paying party to recover your legal costs and disbursements.

Recovering Judicial Review Costs in Legal Aid Cases

Claimants in Judicial Review cases may apply for Legal Aid which is made available and provided to individuals who meet a specific threshold.

In the majority of publicly funded Judicial Review cases, the Solicitor will be required to recover their profit costs and disbursements from the Legal Aid Agency. In some matters, an inter-partes order, for “costs to be assessed” instead. 

If judicial review costs are required to be recovered from the Legal Aid Agency, costs will need to be submitted via the Legal Aid CCMS System.

Solicitors must quantify their costs and submit either a Payments on Account (POAs) or an interim or final bill for aspects of work completed.

It is important to note that the LAA has specific rules you must follow when submitting your invoices, and our Costs Draftsmen can assist you with this to ensure everything is submitted correctly.

Our legal aid experts regularly use the CCMS system to submit legal aid costs claims and deal with all the administration on behalf of our clients and to free up the time of fee earners, thereby ensuring you can recover your maximum legal aid fees in an expeditious and efficient manner. 

What Makes Us Different? 

We are a digital-focused Law Costs Draftsman service, and our skilled costing team can assist anywhere in England and Wales at a competitive cost, in all cases from the County Court to the Supreme Court.

We hold both national and international accounts and are able to provide legal costs drafting services in any legal matter to any practice looking for a quick and client focused costs partner.

We create efficiency throughout the cost drafting process by working digitally. Bundles of files no longer need to be sent, scanned and passed back on, and instead we can work in a pragmatic way, on your local server.

Wherever your location, ARC Costs are the perfect Law Costs Draftsman partner for your law firm.

If you are looking for a qualified Costs Draftsman in the United Kingdom, then the ARC Costs team are always happy to help with costs challenges. The team can be contacted via email at info@arccosts.co.uk, or by telephone on 01204 397302. For more information on our services, please visit our services page here or find out about our speciality areas of expertise on our legal costs page.