Judicial Review Remedies in England and Wales: An Overview

Introduction

Judicial review is a legal process in England and Wales that allows a claimant to ask the Administrative Court, a specialist court within the Queen's Bench Division of the High Court, to review a decision made by a public body. The aim is often to have that decision quashed.

Public law governs the legal principles that apply to public bodies. Although Ombudsmen or complaint procedures can resolve many public law issues, this article focuses solely on the remedies available through judicial review.

When a claimant applies for judicial review, they must complete a claim form. One section requires them to specify the remedy they seek. The Administrative Court may grant the following remedies if the claim succeeds:

• court orders, including quashing orders, mandatory orders and prohibiting orders
• injunctions
• declarations
• damages

Judicial Review as a Discretionary Remedy

Judicial review is discretionary. Even if a claimant proves that a public body has erred in law, they are not automatically entitled to relief. The Administrative Court has wide discretion when deciding whether to grant a remedy.

In Credit Suisse v Allerdale Borough Council [1997] QB 306, Lord Justice Hobhouse emphasised the breadth of this discretion. The court may consider factors such as:

• whether the claimant failed to make proper disclosure
• whether the claim has become academic
• whether an alternative remedy is available

Quashing Orders

A quashing order nullifies the decision under challenge and usually remits the matter to the original decision maker. The public body must reconsider the decision in light of the court's findings. Although the body may reach the same conclusion, the court's scrutiny of its decision-making makes a lawful outcome more likely.

Under r.54.19(2)(b) of the Civil Procedure Rules, the court may substitute its own decision if permitted by statute. Section 31(5A) of the Senior Courts Act 1981 states that this power applies only when a court made the original decision and no alternative decision is available.

Quashing orders apply to decisions of criminal courts, such as convictions or sentencing, and to executive decisions, such as planning determinations.

Mandatory Orders

A mandatory order compels the defendant to perform a legal duty. For example, if a court wrongly concludes it lacks jurisdiction and refuses to consider a matter, a mandatory order may require it to make the decision it should have made.

Prohibiting Orders

A prohibiting order prevents a public body or court from acting beyond its powers in the future. These orders help stop an unlawful decision before it is made, even if a right of appeal exists.

Injunctions

Injunctions are often sought as interim relief. They may compel a party to act or prohibit a party from acting. They preserve the parties' positions until the court reaches a final decision.

Declarations

Declarations clarify the law. A High Court judge states the legal position, helping decision makers understand their obligations. Section 31(2) of the Senior Courts Act 1981 sets out when a declaration may be granted. Declarations are central to judicial review because they reinforce lawful decision-making.

Declarations of Incompatibility

Under the Human Rights Act 1998, the Administrative Court may issue a declaration of incompatibility if primary legislation cannot be interpreted to comply with the European Convention on Human Rights. Section 3 of the Human Rights Act 1998 requires courts to interpret legislation compatibly with the Convention as far as possible, which means declarations of incompatibility are rare.

Even when compatibility is impossible, the court retains discretion and may choose not to make a declaration.

Damages

Section 31(4) of the Senior Courts Act 1981 allows the court to award damages if certain conditions are met. Damages cannot be claimed alone in judicial review. They must accompany another remedy. There is no general right to damages for breaches of public law.

Damages may be awarded in 3 situations:

• where damages would have been available in a private law claim, such as negligence
• where just satisfaction is sought for breach of the Human Rights Act 1998 under ss.8 and 9
• where the claimant proves a breach of European Union law, as in Francovich and Bonifaci v Italian Republic [1993] 2 CMLR 66

Power to Vary Sentence

When judicial review concerns a criminal court's decision, the Administrative Court may vary a sentence imposed by the Magistrates' Court or Crown Court. This power applies only when the Administrative Court grants a quashing order under s.43(1) of the Senior Courts Act 1981.