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Judicial review is a procedure whereby the court examines decisions made by public bodies.
The growing public procurement market and the increased regulation of industry have resulted in an increase in the number of companies making judicial review applications. Typically it is companies that challenge decisions made by public authorities, including those made by regulatory authorities.
In order to pursue a judicial review application the court will need to be persuaded that the body that made the decision was exercising a function of public character and that the decision that has been made should be ‘judicially reviewable’. When deciding that, the court considers various factors which include: the source of the power being exercised; the motivation of the body exercising the power; the existence of alternative recourse (a private law challenge); and the consequences of the decision that has been made.
In order to make a judicial review application the applicant must have ‘sufficient interest’ in the matter to which the application relates. This is usually clear, but if it is not the court may deal with it as a preliminary issue.
If the applicant has sufficient interest in the decision that has been made by a public or regulatory authority; the decision is one that should be subject to judicial review; and the decision has been made by a body exercising a public function then an application can be made. That application needs to be made promptly and no more than three months from the date that the grounds for the application first arose. It is worth noting however that the mere fact that an application is lodged within three months does not necessarily mean it has been made promptly.
A decision can be challenged on three broad grounds:
When the court receives the application it will first decide if there is an arguable case. The court usually makes that decision without having a hearing.
If the court considers that an arguable case has been made out then the application will be allowed to proceed. The decision maker will be given an opportunity to file evidence and after that the matter will be listed for a hearing. The hearing could be some way off, so it may be necessary to seek an injunction preventing the decision maker from acting on the decision being challenged.
If the court finds in favour of the applicant at the final hearing the court may make a ‘quashing order’ setting aside the decision maker’s original decision. The court could also make an order requiring the decision maker to carry out its legal duties; typically an applicant will ask for both. In certain circumstances damages may be recoverable too.
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