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Judicial Review: Two Years On

Date: 08/10/2017 | Business & Professional Services

The new rules for judicial review came into force on 22 September 2015. Two years on, we consider how the changes are running in practice.  

There were two main changes to the rules on judicial review:

  • The introduction of a time limit of three months from when the decision was taken that gives rise to the judicial review to the action being presented to court.
  • As well as that a new permission stage was granted. You now need to present the petition to the court and get the permission of it to proceed with your judicial review.

Anecdotal evidence suggests that there is now less delay in progressing judicial review applications, and that judges are increasingly willing to use the powers they were given to refuse permission to proceed with a judicial review.

The three month limit was imposed to provide a bit more certainty. Those that are exposed to the prospect of a judicial review challenging their decision now have much more clarity in that they know that once they pass the three months from when their decision was taken they are likely free from any challenge to it (though there are provisions in the rules for a challenge out with the 3 month period in limited circumstances, as you would expect).

To obtain permission to proceed you need to satisfy the court that (1) you have sufficient interest in the application and (2) that the application for JR has a ‘real prospect of success’. This stage was introduced to weed out the numerous judicial reviews that were lodged, for example in immigration cases,  that had no/poor prospects of success.

What the change in the time limit does mean is that you really need to have all of your ducks in a row at the outset of raising a judicial review. Much of the costs and time spent will be front-loaded as everything now needs to be in order at the outset for you to obtain permission from the court to take the case forward.   Putting forward your best possible case right from the start is the best way to secure permission, and conversely, when acting in opposition to the challenge, to maximise the chance of permission being refused.

We have had recent success of being granted permission to proceed with a judicial review against strong opposition to that being granted and obtaining that without the need for a hearing.

If you have been affected by a decision/action that is capable of judicial review, effectively what these changes mean is that you must act quickly.  We are happy to advise on all aspects of bringing and running judicial reviews so please contact us for any more information – but, as above, please do so without delay!

For further information on judicial review work, contact Sheila Webster or Magnus Miller.

The matter in this publication is based on our current understanding of the law.  The information provides only an overview of the law in force at the date hereof and has been produced for general information purposes only. Professional advice should always be sought before taking any action in reliance of the information. Accordingly, Davidson Chalmers LLP does not take any responsibility for losses incurred by any person through acting or failing to act on the basis of anything contained in this publication.

Written by

Sheila Webster | Davidson Chalmers Stewart
Sheila Webster

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