This page is targeted at housing professionals. Our main site is at www.shelter.org.uk

Judicial review procedure

This content applies to England

Information on the judicial review procedure .

Procedures

Solicitors acting for clients or litigants in person in judicial review cases will follow the procedure set down in Part 54 of the Civil Procedure Rules, and the accompanying judicial review pre-action protocol. Judicial review is conducted in two stages:

  • an application for permission to apply for judicial review (often coupled with an application for an injunction)
  • a full hearing of the case if permission has been granted.

Before commencing the judicial review procedure, a 'letter before claim' should be sent to the local authority in an attempt to settle the matter. The judicial review pre-action protocol contains a requirement for a letter before claim to be sent, giving at least 14 days for the local authority to provide a satisfactory answer. The letter before claim could be sent by an adviser who is familiar with the procedure, but generally, if the case is going to be dealt with by a solicitor, the formal letter before claim should be sent by the solicitor. T

The Administrative Court judicial review guide prepared under the direction of the lead Judge of the Administrative Court provides a general explanation of the work and practice of the Court with particular regard to judicial review. It does not have the force of law, but parties using the Administrative Court will be expected to act in accordance with it.

Permission

Applications for permission must be made promptly.[1] The application should be made on the judicial review claim form N461. This should include:

  • a detailed statement of the claimant's grounds for bringing the claim for judicial review
  • any remedy (including any interim remedy) being sought
  • a statement of the facts being relied on. These are often set out in a witness statement attached to the claim form.
  • any written evidence in support of the claim
  • a copy of any decision letter that the claimant seeks to have quashed
  • copies of any documents on which the claimant proposes to rely, eg relevant correspondence
  • copies of any relevant statutory material
  • a list of essential documents for advance reading by the court.

Permission should be granted if, on the material available, the court thinks there is an arguable case for granting the remedy sought by the applicant.

The application for permission is usually dealt with by the court without a hearing. The local authority has 35 days to file and serve a response.

Remedies available

If permission is granted then there is a hearing. It is unlikely that there will be any oral evidence and so the hearing will consist entirely of speeches by the advocates and questions from the judge.

At the hearing the court has available the remedies set out below. The court can use any one of these remedies alone or more than one simultaneously.

Quashing order

A quashing order used to be called an order of certiorari. The court makes this order to quash an invalid decision that has been made by a public body. However, the authority can look at the case again but reach the same, adverse decision.[2]

Mandatory order

A mandatory order used to be known as an order of mandamus. Such an order compels the performance of a public duty, eg to make social services carry out an assessment of a child. Performance of a public duty also includes the duty to exercise discretion so as to make a decision, eg to make a housing authority properly exercise discretion when considering a request to provide temporary accommodation pending the outcome of a review of a homelessness application.

Prohibiting order

A prohibiting order was previously known as an order of prohibition. This order prevents a public body from acting illegally, irrationally or improperly. It is not used very often in housing law as most orders sought require a positive action to be taken by the public body.

Declarations

A declaration is when the court declares the law or the respective rights of the parties without making an order against the decision maker.

Injunctions

Injunctions prevent an illegal act or enforce the performance of a public duty. The outcomes they achieve are similar to the outcomes of mandatory and prohibiting orders. For example, a local authority might be ordered to provide temporary accommodation for someone pending its decision on a homelessness application.

Damages

A judicial review claim cannot seek damages alone. One of the above orders must also be sought. However, it should be noted that damages are not likely to be available for breach of most homelessness duties.[3]

[1] Civil Procedure Rules 54.5.

[2] R v Tower Hamlets LBC ex parte Monaf (1988) 20 HLR 529, CA.

[3] O'Rourke v United Kingdom [2001] Application no. 39022/97 ECtHR (unreported) 26 June 2001; see Shelter's Housing Law Update, May 2002.

Back to top