Judicial Review A solicitors perspective

1. Judicial ReviewA solicitors perspective Ciaran Moynagh LLB MSSc Solicitor Advocate

2. Judicial Review The practice of Judicial Review spans many areas of law. In judicial review, the High Court is not a court of appeal. It does not hear and determine appeals on the merits against decisions of public authorities.  Rather, the High Court exercises a supervisory jurisdiction.  Stated succinctly, the function of the High Court is to ensure that public authorities observe all relevant legal rules, standards and requirements and act within the limits of their powers. In essence, the High Court conducts an audit of legality. Where, in judicial review proceedings, any material failing is demonstrated, the court is empowered to grant an appropriate remedy.  In a very small minority of cases, the High Court can order the defaulting public authority to actively perform its legal duties.  However, this occurs very rarely and is a reflection of the truism that, in judicial review litigation, the High Court is not the final decision maker.  Rather, the power of final decision making remains with the public authority concerned. ”Per McCloskey J in Re Board of Governors of Loreto Grammar Schools Appeal [2011[ NIQB 36

3. Judicial Review Generally a remedy of last resort. i.e it is unavailable where there is a suitable alternative remedy. “Judicial Review is the appropriate remedy where a person seeks to establish that the decision of a person or authority infringes rights protected by public law” R v Chief Constable, ex p McKenna [1992] NI 116 The rule of law, in this context, means that all those who exercise public power must be subject to the demands of legality – they must exercise power in accordance with what the law permits and does not permit. A body is performing a public function when it makes a decision or takes action which is public in nature, usually as a result of exercising some statutory power. This can include a private body Re Kirkpatricks Application [2004] NIQB15 - Lough Neagh Fishermen’s Co-operative Society Court found regulation of fishing affected public generally Northern Ireland Act & Freedom of Information Act

4. Judicial Review Generally a public authority must act within their powers under statute [“illegality” or ultra vires (“beyond powers”) doctrine], must act fairly in accordance with a fair procedure [“procedural fairness/natural justice”], must not act irrationally or perversely [“Wednesbury unreasonableness”] and must not contravene human rights or EU community law.

5. Judicial Review Separation of Powers – trias politica Parliament/Legislative Branch makes the laws – statutes – Legislation Government/Executive – Day to day running of the country/decisions Dept of Education / Library board refuse admission to a school for a student. Judiciary – supervises executive action through judicial review and resolves legal disputes between individuals and State authorities

6. Benefits of Judicial Review. • Flexible and [quite] quick – urgent cases and interim relief. • Procedurally simple. Order 53 Statement and Affidavit. • Two stage process – Leave Stage [Filter stage – arguablity / frivolous cases] and then Full Hearing. • Sometimes the grant of leave is enough to encourage settlement • Vulnerable [and unpopular] group of individuals – minority rights. • Independent High Court Judges. • Focus is on the fairness of the decision-making process. Often the gut feeling test is enough. But beware the pyrrhic victory. Political consideration crucial • Cases often involve issues of statutory construction, human rights issues and policy challenges – all grist to the mill in the JR Court.

7. Judicial Review Procedure from a Solicitors Prospective • Establish that the Proposed Respondent carries out a public function • Determine the groundsto claim – irrationality, illegally, procedurally unfair etc • Confirm your client has standing – A person must have sufficient interest in the decision to be reviewed Courts are becoming strict in more recent times JR1, Re Judicial Review [2011] NIQB 5 • Assess if your client can be classed as a victim i.e. someone who claims that their convention rights have been or are potentially violated. Potential Victim is sufficient – Campbell & Cosans v UK (1982) 4 EHRR 137 • Ensure that time limits have not expired. Applications must be brought promptly and or within three months. Extensions can be sought on exceptional grounds. • Check there is no other avenue to achieve a resolution. JR remedy of last resort However the alternative remedy must be meaningful and appropriate.

8. If all criteria are met. • Get funding in place – Legal aid, PILs, Pro Bono, Charity, Crowd Justice • Advise client of the prospects and the remedies available • Issue Pre Action Protocol Letter – Practice Direction 1/2008 – Ensure as much detail is provided as possible and all possible grounds of complaint are included. • Allow for 14 days to respond (unless urgent and abridge time) and then if necessary issue proceedings • Leave Proceedings initiated with: • Order 53 statement • A supporting affidavit verifying the facts relied upon • An ex parte docket. • The Rules of the Court of Judicature (NI) 1980

9. Other considerations Will an FOI request help The Remedies available in Judicial Review is available in all High Court matters [Petition X] is there another application to be made. Consider if there is a public interest element to your matter and if there is an organisation / charity that may be able to assist. If strategic litigation be careful with Applicant and involve others. PCO’s should be considered when you have a case with public interest. Usually dealt with at the permission stage. Prepare client for duration and that it is unusual to get compensation /apology Timing is now crucial and usually trying to achieve funding is not a legitimate delay - McMullins Application

10. Other considerations Clients affidavit and exhibit crucial to get as much relevant documentation at leave. Remember the leave stage should be prepared for fully but you only have to achieve the “modest hurdle” of having an arguable case, acted promptly & have standing Consider involving counsel early. Have their input into formal pre action correspondence. Do not become complacent when leave is granted – set aside applications If making funding application to PILs provide as much information in application, include draft proceedings or copy correspondence. For finances, detail a breakdown of pro bono activity and cost estimate for all elements of case if funding sought. Take a punt - Unlikely to have cost implications at leave so can be considered “low” risk Knowledge Share! Regularly discuss with other practitioners decisions you believe are unfair– don’t be possessive with cases and engage those staff members that operate in lower courts