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When you run a business, you could face a commercial dispute. This could be, for example, with another company or one of your customers. You could also fall into an employment dispute with a staff member or get into a dispute with a public body carrying out a public function. The latter would concern their decision about your business, such as a decision made by a local or public authority. One way to resolve this is through public law with a judicial review application for judicial review proceedings. This article will, therefore, explain the legal process and grounds for challenge for judicial review claims.
What is Judicial Review?
A judicial review is a highly specialised process that has its own set of rules. It allows a court to check if a decision has been made lawfully. Rather than checking whether the decision is correct, it checks whether the decision-making process has been carried out correctly. You can conduct a judicial review on a public body, such as a government department or local council, carrying out a public function. A court usually only permits you to proceed with judicial review where no other legal remedies are available.
Why Might I Need to Use Judicial Review?
As a business owner, you may need to use judicial review to challenge a public body’s decision, such as His Majesty’s Revenue and Customs (HMRC). As a government department, HMRC is a public body with a legal duty to act fairly and lawfully. However, if you believe they have not done so when making a decision concerning your business, you may wish to pursue judicial review. If so, you should consider taking legal advice to navigate this process and to ensure it is the correct legal remedy in your circumstances.
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Grounds for Challenge for Judicial Review
You will need one of the legal grounds for challenge to claim judicial review. We list these below.
1. Illegality
Illegality means that a public body has acted illegally and had no legal powers to make the decision.
2. Irrationality
Irrationality is where the decision of a public body, such as HMRC, is one that no reasonable person would have made.
3. Procedural impropriety
There are two parts to this ground for judicial review. These include the rule against bias and the right to be heard. Also included in the procedural impropriety ground is the right to obtain a reason for the public body’s decision.
4. Breach of legitimate expectations
This ground for judicial review may be relevant where you have a legitimate expectation to believe the public body would act in a particular way. You may have arrived at this conclusion due to its previous conduct or because, for example, they have spelt this out, such as in legislation.
5. Human rights breach
To claim human rights grounds for judicial review, you must prove that the public body’s decision is not compliant with the Human Rights Act.
Legal Process for Judicial Review
If you decide to pursue a judicial review against a public body, you must follow the strict legal process. This begins with the pre-action protocol letter, where you write to the public body to tell them what you claim and what you would like them to do. They should normally respond within 14 days. The pre-action protocol encourages you to sort out the dispute out of court.
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If you cannot sort out your dispute at the pre-action protocol stage, you may apply for permission from the court. Here, the court will examine whether you have an arguable chase. If the court does allow you permission, you will move to the post-permission stage. You and the public body will exchange pleadings at this point and then attend a court hearing. A Judge will decide at the hearing, but it could take several months. A judgment could include any of the following legal remedies:
- a declaration about what the law is;
- a prohibitory order which stops the public body from making a decision it does not have the legal authority to make;
- a quashing order which invalidates the decision the public body has made;
- a mandatory order which makes the public body do something they are legally obliged to; or/and
- damages.
Key Takeaways
If you or your business has a legal dispute with a public body such as HMRC as a result of a tax decision they made, you may be able to claim judicial review. A judicial review is a legal procedure in which a court examines the legality of the decision-making process. To claim judicial review, you must do so promptly and within three months of the decision. There are five main grounds for judicial review: illegality, irrationality, procedural impropriety, breach of a legitimate expectation and violation of human rights. Judicial review is a process with three main stages: the action protocol stage, the permission stage, and the post-permission stage. If successful at judicial review, a court may order a variety of remedies. These include, for example, a mandatory or prohibitory order. If you want to pursue judicial review, you must seek legal advice.
If you need help understanding the legal process and grounds for challenge for judicial review in the UK, LegalVision’s experienced disputes and litigation solicitors can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. So call us today on 0808 196 8584 or visit our membership page.
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