Judicial review — grounds, standing, remedies

LS.07 Judicial Review — Grounds, Standing, Remedies

JR is the High Court (Administrative Court) supervising the legality of public-law decisions — not their merits. The court asks "was this lawful?", not "was this right?". Brought under CPR Part 54 / Senior Courts Act 1981 s.31.

Threshold gateways

• Amenability: decision must be a public body exercising a public function (Datafin). Private/contractual disputes are not JR.
• Standing (locus standi): "sufficient interest" in the matter (SCA 1981 s.31(3)). Liberally applied — pressure groups can qualify (World Development Movement; Greenpeace).
• Time limit: promptly and in any event within 3 months of the grounds arising (CPR 54.5). Planning = 6 weeks; procurement = 30 days. Promptness can bite even inside 3 months.
• Permission stage required before the substantive hearing.
• Ouster/alternative remedy: must exhaust suitable alternatives (e.g. statutory appeal) first.

The three grounds (GCHQ, Lord Diplock)

1. Illegality — acting ultra vires; error of law; fettering discretion; unlawful delegation; using power for an improper purpose; taking into account irrelevant considerations / ignoring relevant ones (Padfield).
2. Irrationality (Wednesbury unreasonableness) — a decision so unreasonable no reasonable authority could reach it. High bar; sliding scale (Smith — anxious scrutiny where rights engaged).
3. Procedural impropriety — breach of natural justice: the right to a fair hearing (audi alteram partem) and the rule against bias (nemo judex — Pinochet; apparent bias test in Porter v Magill: would a fair-minded, informed observer conclude there was a real possibility of bias?). Also legitimate expectation (Coughlan).

• Proportionality: the test under the HRA 1998 and (historically) EU law — a structured 4-stage test (Bank Mellat), stricter than Wednesbury.

Remedies (discretionary)

• Quashing order — nullifies the decision (may remit).
• Prohibiting order — restrains future unlawful action.
• Mandatory order — compels performance of a duty.
• Declaration and injunction; damages only if an independent private-law/HRA cause exists — never available for JR alone.
• Courts may refuse relief if it would make no substantial difference (s.31(2A) SCA 1981).

Common traps

• JR reviews legality, not merits — don't pick "the decision was wrong".
• Standing = sufficient interest, not "directly affected".
• Time limit is prompt AND within 3 months — both bite.
• Damages are not a free-standing JR remedy.
• EU note (post-Brexit): retained EU law is now assimilated law (REUL Act 2023), and the principle of EU-law supremacy ended at the end of 2023 (gone from 1 Jan 2024). But note: REUL Act 2023 s.6 (the new test letting courts depart from retained/assimilated case law) was never commenced and was revoked by SI 2024/976, so EUWA 2018 s.6 still governs assimilated case law — the Court of Appeal and Supreme Court may depart on their own-precedent basis, lower courts remain bound. Proportionality survives as a JR test only via the HRA 1998 (and where statute imports it).

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