In this article we explore the remedies available to the court in judicial review and what a party seeking judicial review might hope to achieve.
Why seek judicial review?
A petition for judicial review is brought by a party to challenge the lawfulness of a certain decision. Usually, but not always, this is a decision made by a public authority. The aggrieved party may petition the court seeking judicial review of the decision where no other effective remedy (such as an appeal procedure) exists. The court will consider the lawfulness of the decision rather than assessing its merits. For instance, the court will not consider if it was a good or bad decision but simply whether it was lawfully made.
In deciding whether a decision is lawful, the court will consider the key grounds of challenge. These are:
1. Illegality - where the decision-maker has made an error in law.
2. Irrationality - where the decision was so unreasonable that no reasonable decision-maker could have made it.
3. Procedural impropriety - where there has been a failure to comply with the required procedure or it has been carried out unfairly.
The purpose in seeking judicial review is to seek a remedy from the court. It is not like an appeal, whereby the appeal court may reverse a decision of the lower court and grant an alternative decision in its place. Therefore, careful consideration should be given at the outset as to what remedy should be sought and if this is capable of being granted by the court.
What remedies are available?
It is important to note that the court's power in judicial review is limited. Instead, it has a number of key remedies which can be exercised. These are as follows:
Reduction
Declarator
Interdict/suspension
Specific implement
Payment of damages
Reduction
This is the remedy where the court cancels a decision. If the decision is reduced, it is treated as having no legal effect, as though it had never been made in the first place. The court will not substitute its own decision for that of the original decision-maker. Instead, the matter is ordinarily remitted back to the decision-maker for reconsideration so that a fresh decision can be made in accordance with the law. It is important to note that, if a decision is reduced and remitted back to the decision-maker, it is entirely possible for the decision-maker to come to the same decision again on a lawful basis.
Declarator
Declarator is an order by the court declaring a particular legal proposition. In cases of judicial review, declarator is often sought to declare that the decision in question is unlawful. In order for a declarator to be granted, the issue to be considered by the court must be real, not hypothetical. For instance, in Wightman v Advocate General [2018] CSIH 62, it was argued that declarator on whether the UK's notification of its intention to withdraw from the EU could be unilaterally withdrawn was hypothetical as the UK Government did not have such an intention.
However, unlike reduction, declarator that a decision is unlawful does not, of itself, alter the decision being challenged. It is therefore very common for declarator to be sought alongside and in support of reduction. In such cases, the party seeking judicial review would be asking the court to declare that the decision is unlawful and, as a result, to reduce that decision.
Interdict and Suspension
Interdict and suspension are orders that seek to stop an unlawful act which is happening or about to happen. Interdict (broadly equivalent to an injunction in England and Wales) seeks to stop someone from carrying out, or continuing to carry out, a particular act. For instance, interdict may be sought to prevent a regulatory tribunal from holding a misconduct hearing in circumstances where the misconduct process is being judicially reviewed. Suspension is similar but generally operates retrospectively, in respect of a decision which already exists and is being challenged. For example, an order could be sought to suspend the operation or effect of an order which was already made by the regulatory tribunal.
A judicial review process will generally take a number of months to be fully determined. In many cases, a party cannot wait that long for the court to intervene if the effects of an unlawful decision are continuing in the meantime.
Where urgent protection is required whilst the case is ongoing, the aggrieved party may seek interdict or suspension on an interim basis - i.e. temporarily while the case remains ongoing. To be granted an interim order, the aggrieved party must demonstrate two things to the court:
1. That there is a "prima facie" case. This means that the applicant has put forward a sufficiently arguable case before it is finally determined.
2. That the "balance of convenience" favours the applicant. This means that the prejudice to the applicant would be greater than the prejudice to any other party if the order is not granted.
Interim orders can be a powerful and effective tool in protecting a party's position pending a final decision being made on the lawfulness of a decision.
Specific implement
Specific implement is an order which, unlike interdict, requires a party to positively perform a specific act. For instance, if a public authority is legally required to make a decision and has failed to do so, the court may grant an order requiring it to determine the matter.
Payment of damages
The usual forum to seek an order for payment will be through a court action for payment. However, in certain circumstances within judicial review, payment of damages may be awarded for identifiable loss suffered because of an unlawful decision. For example, damages can be sought if loss is caused by a public authority deliberately misusing its statutory powers or in certain circumstances involving a breach of the European Convention on Human Rights.
Conclusion
Judicial review can provide an effective means of challenging an unlawful decision. It is therefore essential to consider from the outset what practical outcome is sought, whether judicial review can achieve it and whether interim protection is needed. In view of tight timeframes (as discussed in our previous article), it is important that legal advice is sought at an early stage.
