Hogan Lovells comments on the UK Judicial Review and Courts Bill

The Bill follows the IRAL Panel’s Review and the Government consultation, to which Hogan Lovells responded in detail (here and here), emphasising the importance of maintaining judicial discretion.

The Public Law and Policy team, part of the firm’s Global Regulatory practice, explained that the only change of practical importance to commercial judicial review is the proposal to provide courts with a statutory power to grant suspended and/or prospective-only quashing orders. Hogan Lovells’ previously published opinion stressed that if the courts are to be granted with such a statutory power, they should retain their unfettered discretion to decide whether, and when, to grant such orders.

While the Bill provides for a presumption in favour of such modified quashing orders, the courts’ discretion is still broadly preserved: the presumption only applies where such an order would “as a matter of substance, offer adequate redress in relation to the relevant defect” and unless the court “sees good reason not to” grant them.

This means that the extent to which such orders will be used depends largely on the meaning of “adequate redress” which is, ultimately, a question for the courts. In setting out the factors to which the courts “must” have regard when deciding whether to exercise their powers (including “the interests or expectations” of those who would benefit from the quashing and any proposed action to be taken, or undertaken given by, the government in respect of the relevant decision or action), the Bill also includes a catch-all of “any other matter that appears to the court to be relevant”.

Commenting on the practical implications of the Bill, Julia Marlow, a Public Law and Policy partner in the firm’s Global Regulatory practice, said: “While the Bill is yet to be subject to the scrutiny of Parliament, it is important for potential litigants to start thinking about the fact that the proposal would introduce a new stage into judicial review proceedings, i.e. the consideration of the appropriateness of modifying the effect of a quashing order and, in particular, of undertakings by the government as to how it seeks to rectify the challenged decision or action.”

“If the Bill does become law in its current form, it will be crucial for claimants to ensure that the courts fully understand their position, in particular their own interests and expectations as to the appropriate remedy, and potentially their views on the government’s proposed course of action.”