Discretion in judicial review proceedings

The Criminal Justice and Courts Act 2015 (CJCA) introduces a number of changes to judicial review (JR) proceedings – some of which are in force already, with others left to be brought into force at a later date.

A key change already in force is section 84(1)-(3) of the CJCA, which amends section 31 of the Senior Courts Act 1981 and makes a significant alteration
to the application of judicial discretion in JR.

The amended section 31 has effect both at the permission stage and at the conclusion of proceedings, where the court is considering whether to exercise discretion to decline to quash a decision, notwithstanding that the claimant has identified an error of law.

Permission stage

At the permission stage, the court may of its own motion ‘consider whether the outcome for the applicant would have been substantially different
if the conduct complained of had not occurred’. However, if asked to do so by the defendant, the court must consider whether
the outcome would have
been ‘substantially different’ (section 31(3C)).

Section 31(3D) provides that where the answer to that first question is ‘highly likely to be
no’ (i.e. it is ‘highly likely that the outcome for the applicant would not have been substantially different’), then the court must refuse to grant leave to bring
the proceedings.

First, this raises the discretionary hurdle much higher, and, second, it places
the emphasis firmly on the personal – how would this particular applicant’s circumstances have been affected by a different decision?

Those motivated more by public interest than private are afforded some insulation by section 31(3E), which allows
the court to ‘disregard’ this
new test ‘if it considers that it is appropriate to do so for reasons of exceptional public interest’.
It of course remains to be seen what degree of exceptionality will be applied.

Discretion as to remedy

Relief is dealt with by the insertion of new subsections
2A to 2C.

Section 31(2A) provides that the court must refuse to grant relief on an application for judicial review, and is also prevented from making any award for damages if it appears to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.

This repeats the test from the permission stage and is equally accompanied by section 31(2B), which provides for an exemption for cases of ‘exceptional public interest’.

The difference at the relief stage is that the court is prohibited from granting relief where the test is satisfied, as opposed to the permission stage where the court is only bound to ask the question if it is raised by the defendant.

The practical result of this is that where the test is satisfied, the claimant is prevented from obtaining even declaratory relief – a declaration being a form of ‘relief’ for the purposes of section 31. This is in contrast to how the courts handle similar cases at present, where the grant of a declaration is often used as the fallback where it would not be just or proportionate to quash the decision in the particular circumstances, despite the court having found an error of law within the decision-making process.

For example, in the recent case of Wiltshire v Secretary of State [2015] EWHC 1459 (Admin), Mrs Justice Patterson found that the error of the secretary of state placed the other defendants, the developers, at such a disadvantage that the decision ought not to be quashed, and instead she chose to grant a declaration.

The weighing up of different forms of relief as against the circumstances of the case will no longer be possible, with all forms of relief, even declarations, being unavailable to claimants whose claims fail the section 84 test.

These new provisions in relation to JR came into force in relation to claims issued on or after 13 April 2015. SJ

Stephanie Hall is a barrister at Francis Taylor Building