Judicial Review – It's a matter of time
:: Next Monday, January 8 sees a significant change to the grounds in bringing a Judicial Review. But how will it affect businesses in their decision making? Catherine Mallon, associate solicitor at Pinsent Masons examines the potential impact.
Judicial Review is an important mechanism for the public and organisations to challenge the decisions of public bodies to ensure that they act lawfully and fairly. These decisions can be wide ranging, from decisions about planning and procurement and licensing to decisions about children's educational needs.
Under the current framework, "An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made".
However EU case law introduced a pressure for change. In the landmark decision of Uniplex, the European Court decided, that the ability of the domestic courts to dismiss a case brought within three months on the basis that it was not brought 'promptly', was contrary to the EU principle of certainty. It decided that the requirement rendered it excessively difficult to exercise EU law rights and therefore, also contravened the EU principle of effectiveness.
As a result Courts across the UK have accepted that this approach to disregard the requirement for promptness, applies to all European Directives and the effect is that in Northern Ireland, the requirement to bring a case promptly is not currently enforced by the Courts in Judicial Review challenges brought on EU grounds. There is now an upcoming amendment to the Rules to remove the disparity between EU and non-EU based applications.
The Rules of the Court of Judicature (Northern Ireland) (Amendment) 2017 removes the reference to promptness. Taking effect from January 8 this change, although it may seem subtle, is more than semantic. It will have a real impact on the decision-making in boardrooms across the region. .
When advising clients on potential challenges for Judicial Review, bringing that challenge promptly has been an important consideration. . On the Applicant side the practical effect is clients are faced with a very short window to take the following important four steps; 1) decide whether to bring a challenge, 2) comply with the pre action protocol for Judicial Review, 3) consider any other avenues to resolution of the dispute with the proposed Respondent to the challenge, 4) draft the application in time.
One driver behind the change is that it will allow more opportunity to resolve disputes by other available means prior to leave for Judicial Review being sought and it is possible in so doing, some of the costs associated with proceedings can be avoided.
However, some leave applications that would otherwise have fallen under the promptness requirement might now proceed to substantive hearing. In narrowing the Court's discretion to refuse leave for Judicial Reviews this could have a knock-on affect on Court Service resources. However the practical impact for potential respondents may prove particularly problematic. For example in the case of planning and procurement challenges where third parties who are in receipt of permissions and award of contracts will now face a full three month wait before a challenge might be commenced which will inevitably impact upon their practical business considerations. These parties will no longer have the reassurance that they can try and have the challenge thrown out on promptness.
So in the effort to achieve greater certainty, the balance of interests between applicant and respondent has clearly shifted towards the former. However the actual effects remain to be seen and no doubt policy makers will be watching closely as we move further into 2018 to see if they have got it right.