Judicial Review Pre Action Protocol

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What is Judicial Review?

Judicial Review is a type of proceedings undertaken in the High Court within England and Wales. During Judicial Review Court proceedings, a judge can examine the way a decision has been reached by a public department, and challenge the legality of certain actions, decisions, or failure to act by public bodies (government departments, local authority, or a body exercising a public law function). Ultimately, it is a procedure which applies to most reviews, allowing parties with sufficient interest in an action by a public body to ask the judge to review its fairness. 

Judicial review commonly involves decisions concerning immigration, nationality and asylum matters in the Upper Tribunal Immigration and Asylum Chamber. 

Applicants who wish to apply for Judicial Review should usually be referred to a Solicitor. With exception to urgent cases where it is appropriate to issue applications without delay, certain steps must be taken by both parties before beginning the Judicial Review procedure in order to comply with protocol requirements. It should be noted that the timescales of the Judicial Review procedure are extremely time-limited, and prompt action must therefore be taken in such cases to abide by the deadlines set.

 

What is the Judicial Review Pre-Action Protocol?

The Judicial Review Pre-Action Protocol sets out a code of good practice which also contains the steps that parties should normally follow when making a claim for judicial review. It encourages both parties to exchange information at an early stage and to consider using other forms of alternative dispute resolutions. 

The aims of the protocol are:

  • To identify the issues in dispute in the proposed claim and share information/relevant documents 
  • To make informed decisions as to whether and how to proceed with a claim
  • Try to settle disputes without attending Court
  • Avoid unnecessary expenses and limit the litigation costs
  • To enable and support efficient management of Court proceedings when an agreement cannot be reached

 

Alternative Dispute Resolution (ADR) 

The Courts take the view that litigation through a judicial review should be the last resort. Both parties will be asked to provide evidence that they have considered alternative ways of resolving the dispute through internal compliant procedures, negotiation, ombudsman services, and mediation.

Non- response to an invitation to participate in ADR or refusing to participate in ADR may be considered by the Court to be unreasonable and costs sanctions may be imposed by the Judge.

The Court will expect that an application for Judicial Review is started no later than three months after grounds for the claim first arose. However, exploring ADR cannot be justified for failing to comply with the time limit when starting a claim for judicial review.

 

Request for Pre-Action Disclosure

A Claimant/Applicant’s request for pre-action disclosure of information and documents should be proportionate to what they need in order to understand the basis of a certain decision and/or identify the issues complained of accurately.

On the other hand, a Respondent/Defendant public body should comply with any proportionate request from the Applicant, unless there are good reasons for not doing so. Otherwise, the Court may impose costs sanctions for those who fail to provide the relevant information.

 

Letter before Claim

When initiating a case, the Applicant is required to send a Letter before Claim or Action to the Respondent. It is suggested that the letter takes the standardised form set out in Annex A of the protocol (available from the Home Office). The purpose of this letter is to identify issues in dispute and establish whether Court proceedings can be avoided. 

The information in the letter should include the following details:

  • Respondent public body, identifying specific offices and individuals;
  • The matter being challenged with a clear summary of the legal basis for the claim;
  • The Applicant and their legal advisor;
  • Any interested parties who have received a copy of the letter;
  • The action that the other party is expected to take (an interim measure such as provision of accommodation);
  • ADR proposals put forward;
  • Further reasons for why a decision was taken and why pre-action disclosure is relevant;
  • An address for responses, and;
  • Specify the date and time the Applicant expects to receive a response.  

Letter of Response

The Respondent’s Letter of Response to the Applicant should normally be sent within 14 days. If this cannot be reached, they should send an interim reply to propose a reasonable extension along with explaining the reason why an extension is required. Where needed, additional information should be requested. The format the letter should take is set out in Annex B of the protocol. 

The letter should clearly state whether the claim is:

  • Conceded (admitted/accepted) in full;
  • Conceded in part, so they should clearly identify what aspects are being conceded and what isn’t;
  • Denied (not accepted/admitted);
  • Where appropriate, identify a new decision and give a clear timescale within which the new decision will be issued;
  • Where appropriate, it should provide a fuller explanation for the decision;
  • Address any points of dispute. If it cannot be addressed, the defendant should explain why;
  • Enclose any relevant documentation requested, or explain why if such documents cannot be included, and;
  • Where appropriate, confirm whether they will oppose any application for an interim solution.

The Applicant is not forced to agree to an extension of time. However, if the Respondent fails to provide a Letter of Response or meet the requirements without good reason, particularly where this failure is a breach of a statutory or common law, the Court will consider this when deciding on the question of costs.

 

Litigants in Person

If the Applicant does not have a legal representative and they are a litigant in person, the Respondent should provide a copy of the protocol with the letter of response.

 

Interested Parties

A copy of the Letter of Response should be sent to all interested parties identified by the Applicant. It should also contain details of any other potential interested parties that the defendant has put forward.

 

When is it Appropriate not to Follow the Protocol?

There are certain scenarios where the protocol does not need to be followed. This is the case when:

Claims are likely to become time-barred

When making a claim for Judicial Review, it should be made within three months after the grounds to make the claim first arose. Although the Court has discretion to allow for a late claim, this must only be under exceptional circumstances. 

Complying with the protocol alone is highly unlikely to be a sufficient ground for making a late claim. Therefore, where the claim was submitted after three months, the parties are not expected to follow the protocol. 

Cases where the Respondent does not have the legal power to modify a decision

The protocol will not be appropriate if the Respondent does not have the legal power to change the decision being challenged. 

Urgent cases

The protocol does not apply in urgent circumstances; for example, where a Respondent is due to be removed from the UK and there is a need for an interim order. 

In cases where a claim must be issued without delays, the Applicant should try to alert the Respondent of the claim by telephone or fax over the draft claim form before releasing it in Court. Alternatively, as a matter of good practice, an Applicant can notify the Respondent when an interim mandatory order is being sought. 

In other words, there may be a need to issue an urgent application in emergency cases, such as to force a local authority to provide interim accommodation pending an appeal against a negative homelessness decision.

 

What Happens if a Party does not Abide by the Judicial Review Pre Action Protocol?

The Court considers the conduct of both parties and whether they have complied with the protocol when determining the level of costs awarded. 

When considering whether each party has complied with the protocol, the Court is unlikely to be concerned with minor or technical shortcomings. The Court will also take into consideration the proportionality of the steps taken compared to the importance of the matter, the urgency of the matter, along with effect of non-compliance on the other side. 

However, one minor breach by one party does not excuse the other party from continuing to follow the protocol.

 

Recovering Costs under the Judicial Review Pre Action Protocol

As a general rule, costs are not recoverable if a case is settled within the Judicial Review Pre Action Protocol stage. To facilitate access to justice, legal aid is available for a number of Judicial Review cases.

In some circumstances, the Courts may award an inter-partes costs order to allow costs to be recovered from the Respondent, though this is only if a Judicial Review Claim Form has had to be issued.

The Order will usually state that “the Defendant/Respondent do pay the Claimant/Applicant’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 Applicant Solicitors to claim their costs from the other side. 

An Applicant will be entitled to recover the legal fees of their proceedings in the event that the respondent fails to provide a response to the letter within the relevant time period, and the case is settled following permission to proceed to Judicial review. In this case, a Bill of C osts will need to be drafted and submitted to the paying party to recover all costs and disbursements. 

 

How can ARC Costs Assist?

ARC Costs are a team of specialist Costs Draftsmen and Costs Lawyers who can assist in all costs related disputes. We regularly provide advocacy related services to professional and Litigant in Person clients, and as independent costs experts we can act for either the Paying or Receiving Party.

If you require assistance in recovering or defending judicial review costs, please do not hesitate to get in touch. Though quite often, any Letter before Action which is resolved pre-action will not allow for costs entitlement, litigated matters which have been lodged for formal Judicial Review often conclude in costs awards being made, if the Applicant is successful.  It is therefore imperative at this juncture to obtain the input of a costs specialist to quantify and recover your legal costs.

If you would like any further information or advice on legal costs, please do not hesitate to contact us on 01204 397302 or email one of the team at info@arccosts.co.uk. Alternatively, you may complete our online enquiry form and we will be in touch to discuss your query further on the same day.

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