The Law Commission

PART IV THE INITIAL STAGE

4.1      At present an applicant is required to seek leave to move for judicial review. The application must be made ex parte, to a high court judge by filing in the Crown Office a notice in Form 86A^[1] and a supporting affidavit verifying the facts relied upon.^[2]
4.2      In the light of consultation and after further discussion with the nominated judges and the Crown Office, we recommend a number of amendments to the existing Form 86A so as to provide more information for the application judge (and the respondent) than is available at present.^[3] The fuller information which will be contained on the amended form will help the application judge in deciding whether or not to allow the application to proceed to a full judicial review on the papers alone.^[4] The form, as amended, is set out in Appendix B.^[5]

A new Form 86A

4.3      Our proposals seek to build on the format of the existing Form 86A^[6] but to ask the applicant to provide information concerning: (i) any relief sought, including interlocutory relief; (ii) any alternative remedies; (iii) whether the respondent has been asked to consider the complaint or reconsider the decision; (iv) the reasons for any delay; and (v) the date of any application for legal aid (if relevant), the date when it was granted or refused and, if granted, the number of the legal aid certificate.
4.4      We believe that where possible the initial application should be concluded without an oral hearing.^[7] It will, however, not be possible for the initial stage to be dealt with on the papers alone where the applicant is seeking immediate interlocutory relief at the same time as making his or her application. We understand from the Crown Office that this is likely to occur in about 10% of cases, particularly homelessness cases, where interlocutory relief is nearly always sought. We recommend that applicants who seek interlocutory relief at the same time as they make their initial application should inform the Crown Office at the earliest opportunity so that the court is alerted to the need for a hearing.
4.5      Concern was expressed that delays in making the application were often caused by applicants awaiting a decision on legal aid. The Public Law Project and the Legal Aid Board, however, informed us that delays are not often the result of waiting for the initial legal aid decision. They regarded the main causes of delay to be waiting for the result of an appeal against a refusal of legal aid or the difficulty in legal advisers undertaking any remunerated work before the legal aid certificate is granted. We consider that it would be useful for the Crown Office to be aware of the position concerning legal aid at the outset so that the application judge can have fuller information about the history when considering an applicant's reasons for delay.^[8] Where legal aid has been granted the Crown Office ought to be sent a copy of the legal aid certificate,^[9] but this would not be included in the papers submitted to the judge who is to consider the matter.
4.6      Alternative remedies are discussed in a number of places in this report.^[10] We recommend that the revised Form 86A should include a question which asks the applicant to identify any alternative remedy that has been pursued and the stage it has reached. Similarly, we consider that as internal reviews often result in settlement an applicant should indicate if (within his or her knowledge) any internal review has been undertaken by the respondent.^[11]
4.7      The question of delay as a relevant criterion in considering whether the application should proceed to a substantive hearing is discussed in Part V below. As we are recommending that applications should be made promptly and, in any event, within three months from the date when grounds for the application first arose, unless the court considers there is good reason for extending the period,^[12] we propose that the applicant should give reasons for any relevant delay on Form 86A.

A Request for further information

4.8      For many of those who responded to our consultation paper, the limited nature of discovery in judicial review and the absence of a duty to give reasons for administrative decisions were matters of grave concern.^[13] It was argued that a practice of formally asking a respondent at an early stage, before the papers were considered by the application judge, to provide information relevant to the grounds of the decision under challenge would be of assistance to all parties^[14] and would further good practice in public administration. It was also argued that clarifymg issues at an initial pre-leave stage might encourage internal review of the decision in question by the decision-maker and reduce the need for legal proceedings. Such initial pre-leave procedures, like the requirement of sending a "letter before action",^[15] would help make savings in public time and money.^[16] For this reason some consultees suggested the use of a questionnaire at the pre-leave stage similar to that used in discrimination law cases.^[17] One objection to the use of a questionnaire in every application was that in many cases information from the respondent is not needed in order to decide whether or not to allow the matter to proceed to a substantive hearing. In only a proportion of the applications for judicial review (one nominated judge estimated this at about one-third) is such information needed. To require it in all cases would place an unnecessary burden on the respondent in the majority of cases where it is clear from the papers that the application should, or should not, be allowed to proceed to a substantive hearing.
4.9      In the "intermediate category" of cases identified by Lord Donaldson MR in R v Secretary of State for the Home Department, ex parte Doorga^[18] either there is no prima facie case but there is cause for concern to know more about the position, or, alternatively, the judge feels that there may be an easy answer to the applicant's case. We agree with those nominated judges who favoured a method whereby information can be provided following a request of the application judge after Form 86A has been lodged. In their view: "procedures which are presently invoked without formal warrant, often cast a flood of light on that which is obscure or partisan". At present the only way forward in these cases is for the application judge to require a hearing. We recommend that a "request for information" procedure should be introduced to be used at the discretion of the application judge. A "request for information" form is set out in Form 86B in Appendix B, and its contents are described in paragraphs 4.10 - 4.11 below.
4.10      The "request for information" form should be available for issue by the Crown Office at the request of the application judge. The party receiving the request (who need not necessarily be the decision-maker) would not be under a duty to complete and return the form but it is thought likely that most respondents would do so.^[19] The applicant must then have an opportunity to know what further information has been placed before the application judge and to respond to it within a limited period, say, ten days. The respondent would therefore be directed to send a copy of the completed form to the applicant at the same time as it is sent to the Crown Office. In some cases after receipt of the completed "request for information" form and the applicant's reply the application judge might decide that it is nevertheless necessary to hear legal argument. He or she should then give a direction to that effect, which should be sent to all parties who have made written submissions, and the judge's direction should state whether only the applicant is required to attend, or whether one or more of the respondents are requested to attend as well.
4.11      The proposed form^[20] requests information about: (i) procedure prior to the decision; (ii) internal review; and (iii) alternative remedies. It also provides the respondent with an opportunity to inform the court of any reasons why the matter should not be allowed to proceed to a substantive hearing and, if so, on what grounds. Information concerning the application would be provided by the Crown Office by sending the respondent a copy of the completed Form 86A and (at the same time) by its asking the applicant to send copies of any affidavit(s) and exhibits submitted with the Form 86A to the respondent. Providing that it is practicable to do so, and to prevent unnecessary delays occurring, we also suggest that these documents should be available, on request, for inspection at the Crown Office.^[21] The form also contains space for the judge considering the application to ask any supplementary question(s) which are appropriate in the particular case.

Notification of the decision

4.12      At present notification of the decision on the application for leave to apply for judicial review is given on Form JRJ. Although the existing form contains a space for "observations for the applicant" we understand that in a number of cases reasons are not in fact given for the refusal of leave. The amended draft Form JRJ^[22] indicates that if the application is not allowed to proceed to a substantive hearing (in the present terminology, if leave is refused) the application judge should state that he or she has considered the application and should provide reasons for refusing to allow the application to proceed to a substantive hearing.^[23] We consider that the form JRJ should also be amended so that a judge who decides not to permit an application for a preliminary consideration to proceed to a substantive hearing may indicate on the form that, if the application were to be renewed, notice should be given to the respondent.^[24]

Note 1   Form 86A must contain a statement of the name and description of the applicant; the relief sought and the grounds upon which it is sought; the name and address of the applicant’s solicitors (if any); and the applicant’s address for service: O 53, r 3(2)(a). The court has express power to allow amendments specifying different or additional grounds of relief: O 53, r 3(6). The general power to allow amendments also applies: O 20, r 8.    [Back]

Note 2   O 53, r 3(2)(b). The applicant is under a duty to disclose all material facts: R v British Rail Board, ex p Great Yarmouth Borough Council, The Times, 15 March 1983. Nondisclosure is sufficient ground for refusing leave (R v Leeds CC, ex p Hendy (1994) 6 Admin LR 439), the relief sought, or for setting aside the grant of leave, and the applicant may be penalised in costs: R v Jockey Club Licensing Committee, ex p Wright [1991] COD 306.    [Back]

Note 3   See also paras 4.10 - 4.11 below.    [Back]

Note 4   For situations in which it might nevertheless be thought desirable to have an oral hearing see para 5.1 1 below.    [Back]

Note 5   We would like to thank the Forms Design Unit of the Lord Chancellor’s Department for their assistance in the design of the forms in Appendix B.    [Back]

Note 6   The Head of the Crown Office has informed us that most solicitors who use Crown Office Forms have set up the relevant format on their office computer systems following the precedents provided in the White Book. However, she estimates that 1 in 10 applications are by litigants in person and in these cases Forms would be sent by the Crown Office. To prevent pages from becoming loose or applicants trying to crowd too much information onto a single sheet we propose that the new Form 86A should be in booklet form.    [Back]

Note 7   At present although the procedure provides for applications to be decided on the papers alone in practice many hearings are requested. For our proposals see paras 5.8 - 5.1 1 below.    [Back]

Note 8   Delay in obtaining legal aid can constitute a good reason under which the discretion to allow an application for leave to be made outside the 3 month time limit can be exercised: R v Stratford-on-Avon, ex p Jackson [1985] 1 WLR 1319 (CA). See also paras 5.23 - 5.30 below.    [Back]

Note 9   Civil Legal Aid (General) Regulations, 1989 SI No 339, r 50(2).    [Back]

Note 10   Eg see paras 3.24 - 3.26, above, and 5.31 - 5.35, below.    [Back]

Note 11    In some cases an application judge may wish to send a respondent a request for information which includes questions about internal and other review mechanisms, see paras 4.8 - 4.11 below. If so, as the respondent will be sent a copy of the applicant's Form 86A, there will be an opportunity to check whether the applicant and respondent agree about the exhaustion of alternative remedies.    [Back]

Note 12   See paras 5.23 - 5.30 below.    [Back]

Note 13   On reasons, see paras 2.29 - 2.31 above, on discovery see Part VII below.    [Back]

Note 14   Eg it would assist the applicant to know whether the grounds upon which he believed he could challenge the decision were apparent or real and give the respondent an opportunity to reconsider a decision without involving the court.    [Back]

Note 15   See R v Horsham DC, ex p Wenman, The Times 12 October, 1993.    [Back]

Note 16   Research by the Public Law Project (see M Sunkin, L Bridges, G Mészáros, Judicial Review in Perspective (1993) The Public Law Project) indicates that there is a high rate of settlement or withdrawal between the grant of leave and a substantive hearing. Some consultees considered that this was due to the fact that grant of leave and service of the notice of motion had prompted many respondents to call in the decision in question for a more effective internal review.    [Back]

Note 17   See the anticipatory procedures under the Sex Discrimination Act 1975, s 74, and the Race Relations Act 1976, s 65 whereby an aggrieved person may submit a questionnaire (in a form prescribed by the Secretary of State) which seeks material information which in the nature of things the respondent can be expected to have and the complainant cannot.    [Back]

Note 18   [1990] COD 109, 110.    [Back]

Note 19   The arrangements for making the applicant’s affidavit evidence available to the respondent are discussed in para 4.1 1 below.    [Back]

Note 20   The form is set out in Appendix B below.    [Back]

Note 21   The Crown Office does not seem to be covered by O 63, r 4 which deals with access to documents filed in the Central Office. We consider that, where the judge has made a request for information to the proposed respondent and directed the applicant to send copies of the documents to the proposed respondent (Draft Order 53 rule 3(3)(b)), if the application is not allowed to proceed then the applicant should bear the cost of sending them, but if the application is allowed to proceed we anticipate that their cost would follow the event.    [Back]

Note 22   See Form JRJ at Appendix B.    [Back]

Note 23   See also para 5.36 below.    [Back]

Note 24   See Form JRJ at Appendix B.    [Back]