Judicial review: procedure and remedies

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Prerogative remedies

Remedies sought via judicial review are called the ‘prerogative remedies’ because they are derived from the powers of the Crown to keep public power in check.

This is conceptually (and also procedurally) interesting, because:

  • The Crown exercises a discretion in awarding a remedy;
  • Remedies are sought by summary application (i.e. an application for judicial review), not in the ordinary course of a trial.

One dominant view of judicial review is that it is simply a cause of action with the sole purpose of accessing the discretion of the Crown to award a ‘prerogative remedy.’

  • I.e. many people see judicial review as merely a means by which people can get hold of the prerogative remedies
  • This view is supported by the statutory framework that ‘codifies’ or perhaps simply ‘confirms’ the prerogative remedies…

S.31 Senior Courts Act 1981

“(1) An application to the High Court for one or more of the following forms of relief, namely:

  • (a) A mandatory, prohibiting or quashing order;
  • (b) A declaration or injunction […]

Shall be made in accordance with the rules of the court by a procedure to be known as an application for judicial review.”

So this act shows a means of accessing these prerogative remedies and that rules would be established to determine how one accesses these remedies → these rules are contained in the civil procedure rules, part 54

Civil Procedure Rules, Part 54

The judicial review procedure must be used in a claim for judicial review where the claimant is seeking:

  • (a) A mandatory order;
  • (b) A prohibiting order;
  • (c) A quashing order; or
  • (d) An injunction under s.30 of the Senior Courts Act 1931

Judicial review is the only means to access these remedies

Quashing orders

The most commonly used remedy, rendering a decision null and void (and of no legal effect) e.g. in Daly the prison book was quashed

Civil Procedure Rules, 54.19:

  • (2) The court may—
    • Remit the matter to the decision-maker; and
    • Direct it to reconsider the matter and reach a decision in accordance with the judgment of the court; or
      • (I.e.t he court quashes the public authority decision and tell them to remake the decision)
    • In so far as any enactment permits, substitute its own decision for the decision to which the claim relates.

Prohibitory orders

Often combined with a quashing order, a prohibitory order prohibits a public body from doing something in the future (or repeating its past errors);

Historically it was used to stop proceedings taking place in lower courts where a lower court had exceeded its jurisdiction in hearing the case;

Now used for non-judicial decision-making too.

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Mandatory orders

A mandatory order is an order that a public body must act in a particular way:

  • The applicant will need to ask the court for specific performance;
  • The court would likely award mandamus (as it used to be known) where there is only one lawful option available to the decision-maker;
  • Mandatory orders are rarely used, and introduced to “prevent disorder from a failure of justice, and defect of police” (Lord Mansfield in R v Barker (1762)).


Interim injunctions are common, pending the determination of the substantive legal matter.

We saw the use of an interim injunction in Factortame No.2, pending the decision of the ECJ on the conflict of laws.

When injunctions are made final, they perform the same function as mandatory and prohibitory orders.

Breach of an injunction is a contempt of court.


Declarations are not strictly speaking a remedy, but a form of relief giving an account (a ‘declaration’) of the proceedings and/or the rights of the parties.

We saw an effective use of a declaration in Rowland v Environment Agency: a declaration confirming that a legitimate expection of private ownership has been created by the public body


Damages are not ordinarily available, except as provided for by the Human Rights Act, s.8(3) on “just satisfaction,” or where the matter would ordinarily give rise to damages in “a cause of action sounding in damages” (R v Deputy Governor of Parkhurst Prison, ex parte Hague).

  • For example, a public body that acts ultra vires and also commits a tort where damages would be payable would be liable to pay damages.


Civil Procedure Rules 54.4:

  • “The court’s permission to proceed is required in a claim for judicial review whether started under this Section or transferred to the Administrative Court.”
  • So, nobody has a right to be heard in the administrative court, but everyone has a right to be heard in the civil court if there has been a breach of contract

Permission is sought by written application.

Typically permission will be refused where there is no ‘sufficient interest’ in the matter (standing), where other remedies might be preferable (e.g. in contract), or where there is discernibly no grounds for judicial review.

Lord Diplock defended the permission stage of judicial review in R v IRC, ex parte Federation of Self-Employed and Small Businesses, where the function is “to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error.”

  • In R v Home Secretary, ex parte Swati, the claimant must have an “arguable case” to proceed from the permission stage.

Time limits

These are extremely and unusually tight

Civil Procedure Rules 54.5:

  • “(1) The claim form must be filed –
    • (a) Promtly; and
    • (b) In any event not later than 3 months after the grounds to make the claim first arose”
  • “(5) Where the application for judicial review relates to a decision made by the Secretary of State or local planning authority under the planning acts, the claim form must be filed not later than six weeks after the grounds to make the claim first arose.”

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