The Rules of the Superior Courts (Judicial Review) 2011, SI
2011/691, replace the previous Rules 18 to 28 of Order 84 of the
Rules of the Superior Courts 1986. The new rules came into
operation on 1 January, 2012 and apply to applications for leave
for judicial review and applications for judicial review made after
that date. A copy of the SI is available by clicking here.
The changes to the procedures are not fundamental in nature, but will nonetheless have important consequences for public bodies and deserve attention.
The more significant changes made by the Rules are as follows:
- The time period in which applications for leave to seek certiorari must be made has been reduced from six months to three months, with a saver for cases where the grounds for application arose prior to 1 January, 2012 (r 21(1)). Further, the general obligation to move promptly (even within the permitted time period) is dropped. However, that does not mean that expedition is no longer required of an applicant for leave for judicial review. The new rule 21(6) plainly preserves the Court's discretion to refuse judicial review on grounds of delay which has caused prejudice to a respondent or third party. Therefore, public bodies can still rely on this ground when opposing an application for judicial review. However, an application for leave for judicial review which has been brought within time can no longer be refused on the sole ground that it was not brought sufficiently "promptly". Rule 21(7) provides that the new time limits are without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.
- Where an extension of time is required to seek leave for judicial review, it will now be necessary to show that there is good and sufficient reason for this to be done and that the delay is due to circumstances outside the applicant's control or which he could not have reasonably anticipated (r 21(3)). In deciding whether to grant an extension, the court may have regard to the effect that the extension might have on a respondent or third party.
- Greater precision is required in drafting a statement grounding an application for judicial review and, public bodies to note, a statement of opposition (r 20(3) and r 22(5)). There is now a requirement to specify the grounds on which each relief is sought or opposed and to identify in respect of each of the facts or matters relied upon. Similarly, in cases where interim or interlocutory relief is sought, the reasons which such relief is said to be appropriate must now be stated.
- Where leave is granted, Rule 22 requires that the order granting leave must be served within seven days of its date of perfection and the motion on notice shall be returnable for the first available motion day after the expiry of seven weeks from the grant of leave. In default of service, any stay of proceedings granted by the Court shall lapse. The rule then requires that the statement of opposition and grounding affidavit be served within three weeks of the service of the notice of motion, and written submissions are required to be exchanged within a further three-week period. The Court is then empowered to direct whether it will require oral submissions on any of the points of law arising from the written submissions.
- Rule 24 provides that the Court may direct that the leave application be heard on notice to the respondent or another party. Further, the Court is empowered under this Rule, even in the absence of the consent of the parties, to treat an application for leave for judicial review as being the application for judicial review.
- The rule relating to the operation of the granting of leave as a stay on proceedings is modified. The new wording emphasises the Court's discretion in granting either interim relief or a stay of the proceedings, order or decision to which the application relates 'should it consider it just and convenient to do so...' (r 20(8)).
It should be noted that no change has been made to the
"threshold" that an applicant must pass in order to be
granted leave for judicial review. Unless statute imposes a
different test, the general test is that the applicant must
establish "an arguable case in law", which he will
be found entitled to the relief sought on the grounds pleaded at
the hearing of a "substantive" judicial review
Finally, the attention of public bodies is drawn to new Practice Direction HC57 – Costs applications in uncontested proceedings under Article 40.4 of the Constitution and for judicial review, issued by the President of the High Court and which came into operation on 24 February, 2012, dealing with costs offers in these types of cases. A copy of the Practice Direction is available by clicking here. Public bodies will want to bear the terms of this Practice Direction in mind when dealing with applications for judicial review that they do not intend to oppose.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.