What is the Pre Action Protocol for Judicial Review?

The Pre-Action Protocol for Judicial Review is a set of guidelines that apply to proceedings within England and Wales. The Protocol aims to enable parties to understand and properly identify the issues in dispute, make informed decisions on whether and how to proceed, try to settle the dispute without proceedings, and avoid unnecessary expense.

It encourages the exchange of information at an early stage and the consideration of alternative dispute resolution procedures. The Court may require parties to provide evidence that they have considered complaint procedures, negotiation, internal complaint or review procedures, ombudsman services, or mediation before commencing judicial review.

The protocol also emphasises that judicial review court proceedings are a remedy of last resort, and the court will consider the proportionality of the steps taken compared to the size and urgency of the matter. It does not affect the time limit specified by the Civil Procedure Rules, which require that any claim form in a Judicial Review application must be filed promptly.

The protocol is designed to ensure that parties have complied with it in good time before proceedings, and the court will take compliance or non-compliance into account when determining costs and considering whether a party has complied with the protocol.

Alternative Dispute Resolution and Judicial Review

The Pre-Action Protocol for Judicial Review emphasises that the Court expects the parties to make use of Alternative Dispute Resolution (ADR) before pursuing litigation in claims for Judicial Review.

Parties are expected to consider internal complaint procedures, negotiation, ombudsman services, and mediation.

Failure to engage in ADR may be considered unreasonable by the court, potentially resulting in cost sanctions. While the court expects a judicial review to be initiated within three months of the claim’s emergence, this time limit cannot be justified for failing to comply with ADR requirements.

Steps under the Pre Action Protocol for Judicial Review

The Pre-Action Protocol for Judicial Review involves the following steps:

• Request for Pre-Action Disclosure: The claimant’s request for pre-action disclosure should be proportionate to understand the decision’s basis and identify the issues accurately. The respondent’s legal representative should comply with a proportionate request, and failure to do so may lead to cost sanctions.
• Letter before Claim: The applicant must send a Letter before Claim to the respondent, following the standardised form set out in the protocol. The letter should include details such as the respondent’s specific offices and individuals, the matter being challenged, ADR proposals, and the expected response date.
• Letter of Response: The defendant should respond within 14 days or propose a reasonable extension with an explanation. The letter should state whether the claim is conceded in full or part, denied, or if a new decision will be issued. Failure to provide a Letter of Response without good reason may be considered by the court when deciding on costs. 

These steps aim to enable parties to understand the issues, make informed decisions, and try to settle the dispute without proceedings, as well as to avoid unnecessary expense and keep down the costs of resolving the dispute.

The Pre-Action Protocol for Judicial Review may not need to be followed in the following scenarios:

• Time-barred claims: When claims are likely to become time-barred, the protocol may not need to be followed. A claim for Judicial Review should normally be made within three months after the grounds for the claim first arose. However, the Court may allow a late claim only under exceptional circumstances.
• Lack of legal power: If the Respondent does not have the legal power to modify a decision being challenged, the protocol may not be appropriate in an application for Judicial Review.
• Urgent cases: In urgent circumstances, such as when a Respondent is due to be removed from the UK and there is a need for an interim order, the protocol does not apply.

Costs under the Pre Action Protocol for Judicial Review

In general, 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 many Judicial Review cases.

To recover legal aid costs, Solicitors must quantify their expenditure, for both profit costs and disbursements, and submit Payments on Account (POAs) if the case is ongoing, or interim bills (if one aspect has concluded) or final bills (if the case is fully concluded) for completed work through the LAA’s online billing system (CCMS).

The Legal Aid Agency enforces strict invoice and costs submission guidelines, and we would always recommend the assistance of a costs expert to submit your costs claims online. 

Our Legal Aid Costs Draftsmen can provide assistance to ensure accurate and proper submissions, and high levels of rejections can impact on legal aid KPIs, which may trigger more frequent reviews of a firm’s performance by the LAA.

Submitted bills are scrutinised by the Legal Aid Agency for compliance with all guidelines. Once accepted, the agency may request evidence supporting the solicitor’s work, including court documents and invoices, before making payment.

Whilst some solicitors may recover costs for all completed work, the LAA may apply reductions if they find the claimed amounts to be inaccurate or unreasonable.

However, in some circumstances, the Courts may award an inter-partes costs order to allow costs to be recovered from the Respondent, but only if a Judicial Review Claim Form has been issued and the proceedings have either been successful, or withdrawn on the basis of a concession from the Respondent, and they have entered into a Consent Order to pay costs.

This order typically states that the Defendant must pay the Claimant’s costs, to be assessed failing agreement.

In such cases, the agreement with the Legal Aid Agency acts as the retainer, entitling the Applicant Solicitors to claim their costs from the other side.

An Applicant may also recover their legal fees if the Respondent fails to provide a response within the relevant time period, and the case is settled following permission to proceed to Judicial review.

In this scenario, a Bill of Costs must 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.

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.

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.