The Law Commission

We recommend that all applications for preliminary consideration should, in the first instance, be determined entirely on paper, unless the application falls within a recognised category for which an oral hearing might be necessary. We further recommend that the following categories should be so recognised: (i) where the application includes a claim for immediate interim relief; (ii) where on the basis of the written material it appears to the Crown Office or the judge that a hearing is desirable in the interests of justice. (Paragraph 5.11; Draft Order 53 rules 3(6) and 3 (7))

Criteria for permitting an application to proceed to a substantive hearing

We recommend that it should be stated in the Rules that unless either the facts or the propositions relied upon by the applicant disclose a serious issue which ought to be determined, or that there ought for some other reason to be a substantive hearing, an application for judicial review should not be allowed to proceed beyond the preliminary consideration. (Paragraph 5.15; Draft Order 53 rule 3(5) (a))

Standing

We recommend that an application should not be allowed to proceed to a substantive hearing unless the court is satisfied that the applicant has been or would be adversely affected, or the High Court considers that it is in the public interest for an applicant to make the application. (Paragraph 5.22; Draft Bill, clause 1, new section 31B(1))

Time limits

We recommend:-

(a) that the time limit in applications for judicial review should be prescribed in rules of court (Draft Bill, clause 1 , new section 3 1 (B)(2)) and should be three months from the date when grounds for the application first arose (Draft Order 53, rule 2(1));

(b) that the court may refuse an application made within the three month time limit if the application is not sufficiently prompt and, that if the relief sought was granted, on an application made at this stage, it would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or be detrimental to good administration (Draft Order 53, rule 2(2));

(c) that an application may be made after the end of the period of three months if the court is satisfied that there is a good reason for the application not to have been made within that period, and that if the relief sought was granted, on an application made at this stage, it would not be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or be detrimental to good administration (Draft Order 53, rule 2(3)).

We also suggest that the court should take account of the fact that an alternative remedy was being pursued as a good reason why an application made after 3 months should be allowed to proceed to a substantive hearing. (Paragraph 5.35)

Unincorporated associations

We recommend that unincorporated associations should be permitted to make applications for judicial review in their own name through one or more of their members applying in a representative capacity where the court is satisfied that the members of the applicant association have been or would be adversely affected or are raising an issue of public interest warranting judicial review, and that the members of the association are appropriate persons to bring that challenge. (Paragraph 5.41, Draft Order 53 r l(2))

INTERIM RELIEF

We recommend that there should be statutory provision for interim relief against ministers in their official capacity and against government departments in judicial review proceedings. (Paragraph 6.13; Draft Bill, clause 1, new section 31B(5))

Interim relief prior to the preliminary consideration

We recommend that it be made clear in the Rules that there is jurisdiction to grant interim relief before it has been decided in the preliminary consideration of an application to allow it to proceed to a substantive hearing. (Paragraph 6.17; Draft Order 53, rule 5(1))

The form of interim relief

We recommend that there should be provision for interim injunctions, interim declarations and stays of proceedings before courts and tribunals in proceedings by way of judicial review. (Paragraph 6.27; Draft Bill, clause 1, new section 31A(4)(a); Draft Order 53 rule 5)

INTERLOCUTORY PROCEDURES

We do not make any recommendations for reform of the rules on discovery. (Paragraph 7.12)

REMEDIES

Nomenclature

The latin titles of the orders be replaced so that the prerogative orders the court would have power to make in judicial review proceedings would be called: a mandatory order, a prohibiting order, and a quashing order. (Paragraph 8.3; Draft Bill, clause 1, new sections 31(1) and 31(3))

Title of cases

The description of judicial review cases should be reformed by Practice Direction so that they are titled, "In the matter of an application for judicial review: ex parte Applicant, R v Respondent". (Paragraph 8.4)

Claims for Restitution and in Debt, and Interest

We recommend that, as is the case for damages, the court may order restitution in judicial review proceedings provided such restitution would have been granted in an action begun by writ. (Paragraph 8.5; Draft Bill, clause 1, new section 31B(3); Draft Order 53 rules 1 and 8)

We also recommend that, as is the case for damages and is proposed for restitution, the court may award a liquidated sum in judicial review proceedings provided such an award would have been made in an action begun by writ. (Paragraph 8.7; Draft Bill, clause 1, new section 31B(3); Draft Order 53 rule 8)

Advisory declarations

We recommend that explicit provision be made for the High Court to make advisory declarations in the exercise of its supervisory jurisdiction by way of judicial review. (Paragraph 8.12; Draft Bill, clause 1, new section 31A(4)(b))

We also recommend that where the judge is satisfied that the application is for an advisory declaration, he should also be satisfied that the point concerned is one of general public importance, before he makes the advisory declaration or, at the initial (i.e. leave) stage, allows the application to proceed to a substantive hearing. (Paragraph 8.14; Draft Bill, clause 1, new section 31A(5))

Power to make substitute orders

We recommend that the court should be empowered to substitute its own decision for the decision to which the application relates (Draft Bill, clause 1, new section 3 l(4) (b)) provided that: (i) there was only one lawful decision that could be arrived at; and (ii) the grounds for review arose out of an error of law. We also recommend that the power to substitute its own decision should be limited to cases involving the decisions of courts and tribunals (Paragraph 8.16; Draft Bill, clause 1, new section 31(5))

RENEWED APPLICATIONS AND APPEALS We recommend that it be stated in the Rules that any application by a respondent to set aside an order that an application for judicial review may proceed should be made not later than 28 days beginning with the day on which the respondent is served with the notice of application. (Paragraph 9.4, Draft Order 53 rule 17(3)). 120

We also recommend that no appeal lie to the Court of Appeal from an order made following an application to have an application for judicial review set aside (Paragraph 9.5, Draft Order 53, r 17(4)).

We also recommend that it be made clear in the Rules that access to the Court of Appeal to challenge an order setting aside a decision to allow a preliminary application to proceed is by way of a renewal of the original application. (Paragraph

COSTS

We propose that in those cases where an oral hearing is required the court should have the power to make a costs order in favour of either applicant or respondent.

We recommend that costs should be available from central funds where a case is allowed to proceed to a substantive hearing on the basis of either a public interest challenge or for the purpose of seeking an advisory declaration. (Paragraph 10.6; Draft Bill, clause 1, new section 31B(4))

We also recommend that the Civil Legal Aid (General) Regulations 1989 be amended to enable the Board to consider the wider public interest in having the case heard. (Paragraph 10.9)

HABEAS CORPUS

We do not make any proposals for reform, but we do urge that a wide review of habeas corpus appeal provisions be undertaken to enable a unified appeal system to be achieved. (Paragraph 1 1.32)

STATUTORY APPEALS

Crown Office Rules

We recommend that all public law procedures should be consolidated into one set of Crown Office Rules. This should be done, however, in co-ordination with Lord Woolf's review of civil rules and procedures, and we do not propose that these rules are drafted until the results of that review are known. (Paragraph 12.2)

The High Court's powers on appeals by way of case stated

We recommend amendment of the Supreme Court Act 1981 so as to confirm statutorily the powers of the High Court on case stated appeals from the Crown Court. (Paragraph 12.9; Draft Bill, clause 2)

We consider that existing procedures for appeals to the High Court by way of case stated should be replaced in due course by provisions for appeal on a point of law. No new case stated provisions should be created in the future. (Paragraph 12.10)

Statutory Review

We recommend that a model 'application to quash' provision should be used in future for statutory review provisions. (Paragraph 12.14; Appendix E)

Intervention

We recommend that Order 55 be amended so as to allow for intervention by a third party (which may include a Minister or government department) in a statutory appeal providing that the court is satisfied that the third party is a proper person to be heard. (Paragraph 12.19)

Time limits and power to extend time

A list should be maintained in the proposed Crown Office Rules of those statutory appeals where [for good reasons] a different time limit applies, the rest being limited to 28 days in any provision of general effect. (Paragraph 12.20)

When time starts to run in statutory appeals

We recommend that the date from which time should be calculated for statutory appeals is the date of posting (plus a stated number of days), and that this provision should be included in the Rules. (Paragraph 12.21)

Power to extend time

We recommend that in future the availability or otherwise of an extension of time should be set out clearly in the proposed Crown Office Rules. (Paragraph 12.22)

Interim suspension and stay of orders pending appeal

We recommend that the types of appeal where Parliament has provided by statute that the entering of an appeal should act as a stay on the order or decision in question should be listed in the Crown Office Rules. (Paragraph 12.23)

Other interlocutory provisions

We propose that interlocutory provisions should be made clear and accessible, in whatever way is most effective, so that appellants may be confident of the procedure in their particular case. This might be done by the inclusion of such provisions in the proposed Crown Office Rules. (Paragraph 12.24)

The orders which can be made on appeal

We consider harmonisation desirable in principle, at least for statutory appeals, although not for statutory review, and recommend that in future such a provision should be formulated as part of the Crown Office Rules. (Paragraph 12.25)

Allocation of business to the different divisions of the High Court

A Chancery Division judge should be assigned from time to time to sit as an are now regularly appointed as additional Queen's Bench judges to hear judicial review cases with a family law element. The effect of this change on the efficient dispatch of VAT appeals should be closely monitored, and if the situation does not improve, more radical changes, such as a transfer of the whole of this jurisdiction to the Chancery Division, should be considered. (Paragraph 12.29)

(Signed) HENRY BROOKE, Chairman
JACK BEATSON
DIANA FABER
CHARLES HARPUM
STEPHEN SILBER

MICHAEL SAYERS, Secretary
9 September 1994