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Pre-action Protocol for Judicial Review

This content applies to England & Wales

Procedure to follow before challenging the lawfulness of decisions, actions or failure to act of public bodies.

What is judicial review

Judicial review is a legal remedy available only in the High Court or, for decision concerning immigration, nationality and asylum matters, in the Upper Tribunal Immigration and Asylum Chamber.

Judicial review can be used to challenge the lawfulness of certain decisions, actions or failure to act of public bodies, such as a government department, a local authority, or other body exercising a public law function.

Someone who wishes to apply for judicial review should usually be referred to a solicitor.

Before commencing the judicial review procedure, certain steps must be taken by both parties, except in urgent cases.

Aims of the Pre-action Protocol for Judicial Review

The aims of the Pre-action Protocol for Judicial Review are to:

  • identify the issues in dispute and share information/relevant documents
  • inform decisions as to whether and how to proceed with a claim
  • promote settlements out-of-court
  • avoid or limit litigation costs
  • when a settlement cannot be reached, enable efficient use of the court's time and resources

Compliance

Except for urgent cases where it is appropriate to issue an application without delay, the court will expect the parties to comply with the Protocol's requirements in good time before issuing proceedings.

Compliance with the Protocol will be taken into consideration by the court when giving case management directions or making orders for costs.

Alternative dispute resolution (ADR)

Judicial review is a remedy of last resort. The court may ask both parties of an action to provide evidence that they have considered complaint procedures and alternative ways of resolving their dispute. The options to be considered will vary but may include:

  • negotiation
  • internal complaint or review procedures
  • Ombudsman services
  • mediation

The court will expect that, subject to the time limit that an application for judicial review should be started no later than three months after the grounds for a claim first arose, no action is taken when a settlement is still a possibility.[1] However, exploring ADR cannot be an excuse for failing to comply with the time limit to start a claim. When the parties must issue a claim to ensure compliance with the time limit but are still considering settlement or the narrowing of the issues in disputes, they may agree to stay the proceedings and make a joint application to the court for a direction to that effect.

The court can also order a defendant to pay the claimant an additional amount, not exceeding a prescribed percentage of the amount awarded to the claimant by the court, if:[2]

  • the defendant does not accept the claimant's offer to settle, and
  • the court subsequently gives judgment for the claimant which is at least as advantageous as the offer

Requests for pre-action disclosures

Any claimant's request for pre-action disclosure of information and documents should be proportionate and limited to what the claimant needs to see in order to understand the basis of a certain decision and/or identify accurately the issues complained of.

A defendant public body should comply with any proportionate request for pre-action disclosure unless there are good reasons for not doing so. The court may impose costs sanctions against public bodies who unreasonably fail to provide relevant documents and information, especially where such a failure constitute breach of a statutory or common law requirement.

Letter before claim

A letter before claim should be sent in good time before starting a claim. The information that should be included and the format the letter should take is set out in Annex A of the Protocol (except for immigration, nationality and asylum claims for which a standardised form is available from the Home Office).

The information required includes the following details:

  • the defendant public body, identifying specific offices and individuals
  • the claimant and their legal adviser
  • the matter being challenged, with a clear summary of the fact and the legal basis for the claim
  • any interested parties to whom a copy of the letter has been sent for information
  • the action that the other party is expected to take (this could include an interim measure such as the provision of accommodation)
  • any ADR proposals put forward
  • any information and documentation sought (such as fuller reasons for a decision taken or a policy document) with reasons as to why pre-action disclosure is relevant
  • the address for responses and the date or time by which a response is required (in non-urgent cases this should be a minimum of 14 days)

Letter of response

A defendant's letter of response should usually be sent within 14 days. If the defendant cannot do this they should send an interim reply proposing an extension, explaining why it is required.

Annex B of the Protocol sets out the format of the letter and information that should be included in it.

The letter should state clearly and unambiguously if the claim is:

  • conceded (meaning admitted/accepted) in full
  • conceded in part, or
  • denied (meaning not admitted/accepted)

Litigant in person

Where the claimant is a litigant in person (which means they do not have a legal representative), the defendant should enclose copy of the Protocol with the letter of response.

Interested parties

Copy of the letter of response should be sent to all interested parties identified by the claimant. The letter should also contain details of any other potential interested party.

Urgent cases

Complying with the requirements of this Protocol may not be appropriate in urgent cases, for example when there is a need to issues an urgent application to compel a local authority to provide interim accommodation pending an appeal against a negative homelessness decision.

In cases where a claim must be issued without delays, the claimant is still required, as a matter of good practice, to alert the defendant of the impending claim by telephone and send/fax over the draft claim form prior to issue it in court.

[1] Civil Procedure Rules 54.5.

[2] s.55 Legal Aid, Sentencing and Punishment of Offenders Act 2012, in force since 1 October 2012 under art. 2(b) The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 2 and Specification of Commencement Date) Order 2012 SI 2012/2412.

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