Administrative Court Guidance-Notes for guidance on applying for judicial review

Administrative Court Guidance

Notes for guidance on applying for judicial review

1 Introduction

2 What is Judicial Review?

3 What is the Pre-action protocol?

4  Where should I commence proceedings?

5  When should I lodge my application for permission to apply for judicial review?

6  Is there a fee to pay and, if so, when do I pay it?

7  How do I apply for Judicial Review?

8  What do I do if my application is urgent?

9  What is an Acknowledgement of Service?

10  What happens after the defendant and/or the interested party has lodged an acknowledgement of service, or the time for lodging such has expired?

11  What happens if my application for permission is refused or if permission is granted subject to conditions or in part only?

12  What happens if my application for permission is granted?

13  What happens when my case is ready for hearing?

14  What if I need to make an application for further orders after the grant of permission?

15  Can my application be determined without the need for a hearing?

16  What if the proceedings settle by consent prior to the substantive hearing of my application?

17  What if I want to discontinue the proceedings at any stage?

18  Will I be responsible for costs of the defendant and/or the interested parties if my application is unsuccessful?

19  What can I do if I am unhappy with the Judge’s decision?

20  Where can I get advice about procedural matters?

1. These notes are not intended to be exhaustive but are designed to offer an outline of the procedure to be followed when seeking to make an application for judicial review in the Administrative Court. For further details of the procedure to be followed you and your representatives/legal advisers should consult Part 54 of the Civil Procedure Rules (CPR) and the Practice Directions accompanying Part 54.

2.1 Judicial review is the procedure by which you can seek to challenge the decision, action or failure to act of a public body such as a government department or a local authority or other body exercising a public law function. If you are challenging the decision of a court, the jurisdiction of judicial review extends only to decisions of inferior courts. It does not extend to decisions of the High Court or Court of Appeal. Judicial review must be used where you are seeking:

• a mandatory order (i.e. an order requiring the public body to do something and formerly known as an order of mandamus);
• a prohibiting order (i.e. an order preventing the public body from doing something and formerly known as an order of prohibition); or
• a quashing order (i.e. an order quashing the public body’s decision and formerly known as an order of certiorari)
• a declaration
• HRA Damages

2.2 Claims will generally be heard by a single Judge sitting in open Court. The Administrative Court sits at:

• The Royal Courts of Justice in London – Room C315, Royal Courts of Justice, Strand, London, WC2A 2LL;
• Birmingham Civil Justice Centre – Priory Courts, 33 Bull Street, Birmingham, B4 6DS;
• Cardiff Civil Justice Centre – 2 Park Street, Cardiff, CF10 1ET;
• Leeds Combined Court Centre – 1 Oxford Row, Leeds, LS1 3BG;
• Manchester Civil Justice Centre – 1 Bridge Street West, Manchester, M3 3FX

Where a case is directed to be heard by a Divisional Court (a court of two judges) the hearing will usually be in London.

3.1 The protocol sets out a code of good practice and contains the steps which parties should generally follow before making a claim for judicial review.  The objective of the pre-action protocol is to avoid unnecessary litigation.

3.2 Before making your claim for judicial review, you should send a letter to the defendant.  The purpose of this letter is to identify the issues in dispute and establish whether litigation can be avoided.  The letter should contain the date and details of the decision, act or omission being challenged and a clear summary of the facts on which the claim is based.  It should also contain the details of any relevant information that the claimant is seeking and an explanation of why this is considered relevant.  A claim should not normally be made until the proposed reply date given in the letter before claim has passed, unless the circumstances of the case require more immediate action to be taken.

3.3 Defendants should normally respond to that letter within 14 days and sanctions may be imposed unless there are good reasons for not responding within that period.

NB- The protocol does not affect the time limit specified by CPR Part 54.5(1) namely that an application for permission to apply for judicial review must be made promptly and in any event not later than 3 months after the grounds upon which the claim is based first arose.

NB- You should seek advice as to whether the protocol is appropriate in the circumstances of your case.  Use of the protocol will not be appropriate where the defendant does not have the legal power to change the decision being challenged.  It also may not be appropriate in circumstances where the application is urgent.

NB- A letter before claim will not automatically stop the implementation of a disputed decision.

NB- Even in emergency cases, it is good practice to fax the draft claim form that you are intending to issue to the defendant.  You will also normally be required to notify a defendant when you are seeking an interim order; i.e. an order giving some form of relief pending the final determination of the claim.

3.4 Any claim for judicial review must indicate whether or not the protocol has been complied with.  If the protocol has not been complied with, the reasons for failing to do so should be set out in the claim form.

4.1 Claims for judicial review under CPR Part 54 are dealt with in the Administrative Court.

4.2 Claims may be issued at the District Registry of the High Court at Birmingham, Cardiff, Leeds or Manchester as well as at the Royal Courts of Justice in London.  Cases started in Birmingham will normally be determined at a court in the Midland region; in Cardiff in Wales; in Leeds in the North-Eastern Region; in London at the Royal Courts of Justice and in Manchester, in the North-Western Region.4.3 The general expectation is that proceedings will be administered and determined in the region with which the claimant has the closest connection, subject to the following considerations as applicable—

4.4 Neither the Court nor the Administrative Court Offices have power to grant funding (previously legal aid). The responsibility for the provision of public funding is held by the Legal Services Commission.

Further information on the type(s) of help available and the criteria for receiving that help may be found in the Legal Services Commission Manual Volume 3: “The Funding Code”. This may be found on the Legal Services Commission website at http://www.legalservices.gov.uk/.

4.6 A list of contracted firms and Advice Agencies may be found on the Community Legal Services website at http://www.justask.org.uk/. The Legal Services Commission can also provide you with a list of solicitors in your area if you telephone them on 0845 345 4345.

5.1 The claim form must be filed promptly and in any event not later than three months after the grounds upon which the claim is based first arose (CPR Part 54.5).

5.2 The court has the power to extend the period for the lodging of an application for permission to apply for judicial review but will only do so where it is satisfied there are very good reasons for doing so.

NB – The time for the lodging of the application may not be extended by agreement between the parties.

NB – If you are seeking an extension of time for the lodging of your application, you must make the application in the claim form, setting out the grounds in support of that application to extend time (CPR Part 54.5).

6.1 A fee of £50.00 is payable when you lodge your application for permission to apply for Judicial Review.  A further £180.00 is payable if you wish to pursue the claim if permission is granted (Civil Proceedings Fees (Amendment) Order 2008).

NB – If you are in receipt of certain types of benefits you may be entitled to remission of any fee due as part of Judicial Review proceedings.  If you believe you may be entitled to fee remission you should apply to the relevant Administrative Court Office using Form EX160 (Application for a Fee Remission) and lodge the application with your claim form.

NB – Cheques should be made payable to HMCS.  If you lodge your claim form at the court office in person, personal cheques must be supported by a cheque guarantee card presented at the time the claim form is lodged.

7.1 An application for permission to apply for judicial review must be made by claim form (Form N461).

7.2 The claim form must include or be accompanied by -

• a detailed statement of the claimant’s grounds for bringing the claim for judicial review;
• a statement of the facts relied on;
• any application to extend the time limit for filing the claim form; and
• any application for directions.

7.3 Where you are seeking to raise any issue under the Human Rights Act 1998, or a remedy available under that Act, the claim form must include the information required by paragraph 16 of the Practice Direction supplementing Part 16 of the Civil Procedure Rules.

7.4 Where you intend to raise a devolution issue, the claim form must specify that you (a) wish to raise a devolution issue (b) identify the relevant provisions of the Government of Wales Act 1998, and (c) contain a summary of the facts, circumstances and points of law on the basis of which it is alleged that a devolution issue arises.  Cases involving Welsh devolution issues are expected to be lodged at the Administrative Court Office in Wales.

7.5 The claim form must also be accompanied by

• any written evidence in support of the claim or application to extend time;
• a copy of any order that you are seeking to have quashed;
• where the claim for judicial review relates to a decision of a court or tribunal, an approved copy of the reasons for reaching that decision;
• copies of any documents upon which you propose to rely;
• copies of any relevant statutory material;
• a list of essential documents for advance reading by the court (with page references to the passages relied upon).  Where only part of a page needs to be read, that part should be indicated, by side-lining or in some other way, but not by highlighting.

NB – Where it is not possible for you to file all the above documents, you must indicate which documents have not been filed and the reasons why they are not currently available.  The defendant and/or the interested party may seek an extension of time for the lodging of its acknowledgement of service pending receipt of the missing documents.

7.6 You must file the original claim form and witness statement, together with a set of paginated and indexed copy documents for the courts use containing the documents referred to in paragraph 7.5 above (CPR Part 54.6 and Practice Direction 54).  You should also file a complete set of copy documents (including a copy claim form and witness statement) in a paginated and indexed set for the courts use. Please ensure you paginate in consecutive page number order throughout your bundle.  Also ensure that each page has a page number on it and provide an index, which lists the description of documents contained in your bundle together with their page reference numbers.

7.7 Please note that if your case is of a criminal nature then the Court will require you to lodge two paginated and indexed bundles of copy documents.

7.8 You must also lodge sufficient additional copies of the claim form for the court to seal them (i.e. stamp them with the court seal) so that you can serve them on the defendant and any interested parties.  The sealed copies will be returned to you so that you can serve them on the defendant and any interested parties.

7.9 If you are represented by solicitors they must also provide a paginated, indexed bundle of the relevant legislative provisions and statutory instruments required for the proper consideration of the application.  If you are acting in person you should comply with this requirement if possible.

NB – Applications that do not comply with the requirements of CPR Part 54 and Practice Direction 54 will not be accepted, save in exceptional circumstances.  In this context a matter will be regarded as exceptional where a decision is sought from the Court within 14 days of the lodging of the application.  In such circumstances an undertaking will be required to provide compliance with the requirements of the CPR within a specified period.

NB – If the only reason given in support of urgency is the imminent expiry of the three month time limit for lodging an application, the papers will nonetheless be returned for compliance with Part 54 and Practice Direction 54.  In those circumstances you must seek an extension of time and provide reasons for the delay in lodging the papers in proper form.

7.10 The sealed copy claim form (and accompanying documents) must be served on the defendant and any person that you consider to be an interested party (unless the court directs otherwise) within 7 days of the date of issue (i.e. the date shown on the court seal).  The Administrative Court Office will not serve your claim on the defendant or any interested party.

NB – An interested party is a person who is likely to be directly affected by your judicial review application.

NB – Please note that under the provisions of the Crown Proceedings Act 1947 service must be upon the Department responsible for the Defendant.

NB – Where the claim for judicial review relates to proceedings in a court or tribunal, any other parties to those proceedings must be named in the claim form as interested parties and served with the claim form (CPR 54 PD.5).  For example, in a claim by a defendant in a criminal case in the Magistrates’ or Crown Court for judicial review of a decision in that case, the prosecution must always be named as an interested party.

7.11 You should lodge a Certificate of Service in Form N215 in the relevant Administrative Court Office within 7 days of serving the defendant and other interested parties.

7.12 The date of deemed service is calculated in accordance with CPR part 6.14 (see methods of service below).

NB – The time for the lodging of the defendant and any interested party’s acknowledgement of service (21 days) commences from the date that the claim is deemed served upon them.

8.1 If you want to make an application for your application for permission to be heard/considered by a Judge as a matter of urgency and/or to seek an interim injunction, you must complete a Request for Urgent Consideration, Form N463, which can be obtained from the HMCS website or the relevant Administrative Court Office.  The form sets out the reasons for urgency and the timescale sought for the consideration of the permission application, e.g. within 72 hours or sooner if necessary, and the date by which the substantive hearing should take place.

8.2 Where you are seeking an interim injunction, you must, in addition, provide a draft order; and the grounds for the injunction.  You must serve the claim form, the draft order and the application for urgency on the defendant and interested parties (by FAX and by post), advising them of the application and informing them that they may make representations directly to the Court in respect of your application.

8.3 A judge will consider the application within the time requested and may make such order as he/she considers appropriate.

NB – The judge may refuse your application for permission at this stage if he/she considers it appropriate, in the circumstances, to do so.

8.4 If the Judge directs that an oral hearing must take place within a specified time the Administrative Court Office will liaise with you and the representatives of the other parties to fix a permission hearing within the time period directed.

8.5 Where a manifestly inappropriate urgency application is made, consideration may, in appropriate cases, be given to making a wasted costs order.

9.1 Any person who has been served with the claim form and who wishes to take part in the judicial review should file an acknowledgment of service (Form N462) in the Administrative Court Office, within 21 days of the proceedings being served upon them.

NB - Whilst there is no requirement upon you to serve the defendant and any interested party with a Form N462 for completion by them, it is good practice to do so.

9.2 The acknowledgement of service must set out the summary of grounds for contesting the claim and the name and address of any person considered to be an interested party (who has not previously been identified and served as an interested party).

9.3 The acknowledgement of service must be served upon you and the interested parties no later than 7 days after it is filed with the court.

NB – Failure to file an acknowledgement of service renders it necessary for the party concerned to obtain the permission of the court to take part in any oral hearing of the application for permission.

10.1 Applications for permission to proceed with the claim for judicial review are considered by a single judge on the papers.  The purpose of this procedure is to ensure that applications are dealt with speedily and without unnecessary expense.

10.2 The papers will be forwarded to the judge by the Administrative Court Office upon receipt of the Acknowledgement of Service or at the expiry of the time limit for lodging such acknowledgement – whichever is earlier.

10.3 The judge’s decision and the reasons for it (Form JRJ) will be served upon you, the defendant and any other person served with the claim form.

10.4 If the judge grants permission and you wish to pursue the claim, you must lodge a further fee of £180.00 (or a further Application for Remission of Fee (Form EX160) with the relevant Administrative Court Office within 7 days of service of the judge’s decision upon you.

NB – If you do not lodge the additional fee, your file will be closed.

11.1 If permission is refused, or is granted subject to conditions or on certain grounds only, you may request a reconsideration of that decision at an oral hearing.

11.2 Request for an oral hearing must be made on the Notice of Renewal, Form 86b, (a copy of which will be sent to you at the same time as the judge’s decision) and must be filed within 7 days after service of the notification of the judge’s decision upon you (CPR Part 54.11 & 54.12).

11.3 Where the judge directs an oral hearing or you renew your application after refusal following consideration on paper, you may appear in person or be represented by an advocate (if you are legally represented).  If you are not legally represented you may seek the court’s permission to have someone speak on your behalf at the hearing.

NB – Any application for permission to have someone speak on your behalf should be made to the judge hearing the application who will make such decision as he considers appropriate in all of the circumstances.

11.4 Notice of the hearing is given to you, the defendant and any interested party by the Administrative Court List Office.  An oral hearing is allocated a total of 30 minutes of court time.  If it is considered that 30 minutes of court time is insufficient, you may provide a written estimate of the time required for the hearing and request a special fixture.

11.5 Neither the defendant nor any other interested party need attend a hearing on the question of permission unless the court directs otherwise.

12.1 On granting permission the court may make case management directions under CPR 54.10(1) for the progression of the case.  Case management directions may include directions as to venue, as to the service of the claim form and any evidence on other persons and as to expedition.

12.2 Where a claim is made under the Human Rights Act 1998, a direction may be made for the giving of notice to the Crown or joining the Crown as a party.  In that regard you attention is drawn to the requirements of Civil Procedure rule 19.4A and paragraph 6 of the Practice Direction supplementing Section I of Part 19.

12.3 A party upon whom a claim form has been served and who wishes to contest the claim (or support it on additional grounds) must, within 35 days of service of the order granting permission, file and serve on the Court and all of the other parties

• Detailed grounds for contesting the claim or supporting it on additional grounds and
• Any written evidence relied upon.

12.4 Any party who has done so may be represented at the hearing.

12.5 Where the party filing the detailed grounds intends to rely on documents not already filed, a paginated bundle of those documents must be filed at the Court when the detailed grounds are filed.

12.6 The Court has power to extend or abridge the time for lodging evidence.

13.1 When the time for lodging of evidence by the parties has expired, the case enters a warned list and all parties are informed of this by letter.

13.2 Where a direction has been given for expedition, the case will take priority over other cases waiting to be fixed and enters an expedited warned list.

NB – The procedure is the same whether you act in person or are legally represented.

13.3 Where advocate’s details have been placed on the court record, the parties will be contacted by the relevant Administrative Court List Office in order to seek to agree a date for the hearing. You and advocate’s clerks will be offered a range of dates and will have 48 hours to take up one of the dates offered. If the parties fail to contact the List Office within 48 hours, the List Office will fix the hearing on one of the dates offered without further notice and the parties will be notified of that fixture by letter. Where a hearing is listed in this way the hearing will only be vacated by the Administrative Court Office if both parties consent and good reason is provided for the need to vacate the fixture, using the adjournment form available from Administrative Court Listing Offices.

13.5 Where agreement to an adjournment cannot be reached, a formal application for adjournment must be made to the Court (on notice to all parties) using Form PF244 - Administrative Court Office.  Please note that there is a fee payable (£75.00) for any application to adjourn made without the consent of all parties, notwithstanding when the application is lodged, unless you are entitled to fee remission, in which case you must lodge an Application for a Fee Remission (Form Ex160) with your application.

13.6 There are occasions when circumstances, outside the control of the List Office, may necessitate them having to vacate a hearing at very short notice.  Sometimes this can be as late as 4.30pm the day before the case is listed.  This could be as a result of a case unexpectedly overrunning, a judge becoming unavailable, or other reasons.  The List Office will endeavour to re-fix the case on the next available date convenient to the parties.

13.7 Whilst the Administrative Court usually gives fixed dates for hearings, there is also a need to short warn a number of cases to cover the large number of settlements that occur in the list. Parties in cases that are selected to be short warned will be notified that their case is likely to be listed from a specified date, and that they may be called into the list at less than a day’s notice from that date. If the case does not get on during that period, a date as soon as possible after that period will be fixed in consultation with the parties.

13.8 A skeleton argument is a document lodged with the court by a party prior to the substantive hearing of any application for judicial review.

13.9 Whilst there is no requirement for a litigant in person to lodge a skeleton argument there is nothing to prevent you from doing so if you wish and if you consider that it would assist the Court.

13.10 If you wish to lodge a skeleton argument you must file it with the Court and serve it on the other parties not less than 21 working days before the date of the hearing of the judicial review or the short warned date, where a case has been “short warned”.

13.11 The defendant and any other party wishing to make representations at the hearing of the judicial review must file and serve a skeleton argument not less than 14 working days before the date of the hearing of the judicial review (or the short warned date).

13.12 The skeleton argument must contain:

• A time estimate for the complete hearing, including delivery of judgment;
• A list of issues;
• A list of the legal points to be taken (together with any relevant authorities with page references to the passages relied on);
• A time estimate for the complete hearing, including delivery of judgment;
• A chronology of events (with page references to the bundle of documents);
• A list of essential documents for the advance reading of the court (with page references to the passages relied on) (if different from that filed with the claim form) and a time estimate for that reading; and
• A list of persons referred to.

13.13 You must file a paginated and indexed bundle of all relevant documents required for the hearing of the judicial review whether or not you file a skeleton argument. The bundle must be filed with the court and served on the other parties not less than 21 working days before the hearing.

NB – Two copies of the bundle are required by the Court when the application is to be heard by a Divisional Court in London.

NB – The bundle must also include those documents required by the defendant and any other party who is to make representations at the hearing.

14.1 Where case management decisions or directions are sought after permission has been granted, application should be made by way of an application under CPR Part 23, using Form PF244 – Administrative Court Office.  You will be required to pay a fee for such application (currently £75.00, or £40.00 if all parties provide their written consent to the order being made), unless you are entitled to fee remission (in which case you should complete and submit a form EX160 with you application).

15.1 The court may decide a claim for judicial review without a hearing where all parties agree (CPR Part 54.18).

16.1 If you reach agreement with the other parties as to the terms of the final order to be made in your claim, you must file at the court a document (with 2 copies) signed by all the parties setting out the terms of the proposed agreed order.

NB – There is a fee of £40.00 payable on lodging the consent order, unless you are entitled to fee remission (in which case you should complete and submit a Form EX160 with your application).

NB – If you agree with the other parties that a mandatory order etc. is required, the draft order should be accompanied by a statement of reasons (i.e. a short statement of the matters relied on as justifying the proposed agreed order) and copies of any authorities or statutory provisions relied on.  If settlement is reached before permission is considered, the draft consent order must include provision for permission to be granted.

NB – Such a statement is not required where the agreement as to disposal (usually by way of withdrawal of the application) requires an order for costs or a detailed assessment of the Claimant’s Legal Services Commission costs – in those circumstances the parties should file a draft consent order setting out the terms of settlement signed by all parties.

16.2 The court will consider the documents submitted and will make the order if it is satisfied that the order should be made.  If the court is not satisfied that the order should be made, the court will give directions and may direct that a hearing date be set for the matter to be considered further.

Before service of the claim form etc. on the other parties,

17.1 If you have not yet served any of the parties with the sealed claim form and accompanying documents you may discontinue the proceedings by notifying the Court in writing of your intention to do so.  The Court will accept a letter of withdrawal provided that you confirm in writing that you have not effected service on the parties.

After service of the claim form etc. on the other parties,

17.2 Discontinuance of a claim is governed by CPR Part 38.  Discontinuance renders you liable for the costs incurred by the other parties until the date of discontinuance.

17.3 There is a right to discontinue a claim at any time, except where:

• An interim injunction has been granted or an undertaking has been given – in those circumstances the permission of the court is required to discontinue the proceedings (an example of this would be where bail had been granted pending determination of the application for judicial review)
• Interim payment has been made by defendant – in those circumstances the consent of the defendant or the permission of the court is required to discontinue the proceedings
• There is more than one claimant – in those circumstances the consent of every other claimant or the permission of the court is required to discontinue the proceedings.

17.4 If you wish to discontinue the proceedings at any stage after the service of those proceedings upon the other parties you must file a Notice of Discontinuance in the requisite form (N279) at the relevant Administrative Court Office and serve a copy on every other party.

17.5 A defendant may apply to set aside the Notice of Discontinuance, within 28 days of being served with it (CPR Part 38.4).

NB – If the parties require any order for costs, then a draft order setting out the terms of the order sought is required.  A Notice of Discontinuance would not be appropriate in those circumstances.

18.1 The general rule is that the party losing a substantive claim for judicial review will be ordered to pay the costs of the other parties.  However, the Judge considering the matter has discretion to deal with the issue of costs as he/she considers appropriate in all of the circumstances.

NB – Costs may be awarded in respect of an unsuccessful paper application.  Any application by the defendant/interested party for costs will normally be made in the Acknowledgment of Service.

19.1 If you are unhappy with the Court’s decision in a civil matter you can appeal to the Court of Appeal Civil Division (with permission of the Court of Appeal (CPR Part 52.15)). Application to the Court of Appeal for permission to Appeal must be made within 7 days of the refusal by the Administrative Court of permission to apply for judicial review.

19.2 In substantive applications, permission to appeal may be sought from the Administrative Court when it determines the claim for judicial review. If an application for permission to appeal is not made at the conclusion of the case, the application for permission to appeal must be made to the Court of Appeal Civil Division within 21 days (CPR Part 52.3 & 52.4).

19.3 Guidance as to procedure should be sought from the Civil Appeals Office, Royal Courts of Justice, Strand, London, WC2A 2LL.

19.4 There is no further remedy in the domestic courts after a refusal of permission by the Administrative Court.

19.5 If you are unhappy with the Court’s decision in a substantive claim for judicial review in a criminal matter, you can appeal to the Supreme Court but only with the leave of the Administrative Court or the Supreme Court and such leave may only be granted if: (a) The Administrative Court certifies that a point of law of general public importance is involved in its decision; and (b) It appears to the Administrative Court or the Supreme Court that the point is one which ought to be considered by the Supreme Court. (see The Administration of Justice Act 1960 s.1).

20.1 If in doubt about any procedural matter you can contact the relevant Administrative Court Office, telephone numbers below. Court staff cannot give legal advice as to the merits of a case.

• Birmingham Civil Justice Centre – 0121 681 3043 or 0121 681 3181;
• Cardiff Civil Justice Centre – 029 2037 6400;
• Leeds Combined Court Centre – 0113 306 2578;
• Manchester Civil Justice Centre – 0161 240 5313 or 0161 240 5314;
• The Royal Courts of Justice in London – 020 7947 6205 or 020