Pre-Action Protocol for Judicial Review - ICS Legal Blog

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Pre-Action Protocol for Judicial Review

This protocol applies to proceedings within England and Wales only. It does not affect the time limit specified by Rule 54.5(1) of the Civil Procedure Rules which requires that any claim form in an application for judicial review must be filed promptly and in any event not later than 3 months after the grounds to make the claim first arose or the shorter time limits specified by Rules 54.5(5) and (6) which set out that a claim form for certain planning judicial reviews must be filed within 6 weeks and the claim form for certain procurement judicial reviews must be filed within 30 days.

Judicial review allows people with a sufficient interest in a decision or action by a public body to ask a judge to review the lawfulness of:

  • an enactment; or
  • a decision, action or failure to act in relation to the exercise of a public function.

Judicial review may be used where there is no right of appeal or where all avenues of appeal have been exhausted. The parties should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, and if so, endeavour to agree which form to adopt. Both the Claimant and Defendant may be required by the Court to provide evidence that alternative means of resolving their dispute were considered. The Courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored. Parties are warned that if the protocol is not followed (including this paragraph) then the Court must have regard to such conduct when determining costs. However, parties should also note that a claim for judicial review ‘must be filed promptly and in any event not later than 3 months after the grounds to make the claim first arose’.

It is not practicable in this protocol to address in detail how the parties might decide which method to adopt to resolve their particular dispute. However, summarised below are some of the options for resolving disputes without litigation:

  • Discussion and negotiation.
  • Ombudsmen – the Parliamentary and Health Service and the Local Government Ombudsmen have discretion to deal with complaints relating to maladministration. The British and Irish Ombudsman Association provide information about Ombudsman schemes and other complaint handling bodies and this is available from their website at www.bioa.org.uk . Parties may wish to note that the Ombudsmen are not able to look into a complaint once court action has been commenced.
  • Early neutral evaluation by an independent third party (for example, a lawyer experienced in the field of administrative law or an individual experienced in the subject matter of the claim).
  • Mediation – a form of facilitated negotiation assisted by an independent neutral party.