Summary
- Procedural impropriety occurs where a decision is made unfairly or without following required legal procedures.
- It is a key ground for judicial review in the UK, focusing on flaws in the decision-making process rather than the outcome itself.
- It includes failures such as bias, lack of consultation, or not giving a party a fair opportunity to be heard.
- This guide explains procedural impropriety for business owners in the UK, outlining how it can be used to challenge decisions, prepared by LegalVision, a commercial law firm that specialises in advising clients on disputes and public law.
- It provides a practical explanation of fairness obligations, legal grounds for challenge and when a decision may be invalid.
Tips for Businesses
If you believe a decision was unfair, assess whether proper procedures were followed. Look for bias, lack of consultation or missing reasons. Act quickly, as judicial review has strict time limits. Gather evidence of procedural failures and seek legal advice early to determine if a challenge is viable.
Procedural impropriety occurs when a decision is made without following the correct legal procedures or without fairness in the decision-making process. For your business, this is a critical ground to challenge decisions by public bodies, as even a substantively reasonable outcome can be overturned if the process was flawed, leading to delays, costs and regulatory uncertainty. It focuses on how a decision was made, not whether it was right, and commonly includes failures such as bias, lack of consultation or denying a fair hearing. This article explains what procedural impropriety is, the key legal principles behind it and how it can be used to challenge proceedings.
What is Judicial Review?
Judicial review is a legal mechanism to challenge a decision made by a public body through the court. It challenges the lawfulness of the decision or action rather than the outcome of the decision itself. Therefore, the courts will consider how the decision or action has been considered. For example, your business may want to challenge HMRC’s decision against your tax accounts. Alternatively, you may wish to challenge the decision of a regulatory body such as the Information Commission Office (ICO). You can only apply for judicial review if you have exhausted other complaint processes available for that public body.
Judicial review allows the courts to check how a public body exercises its powers on you. It differs from other court proceedings and requires you to comply with a different set of Civil Procedure Rules (CPR) practice directions. Judicial review takes place in the Administrative Court, which is a division of the High Court. To have a claim for judicial review, you need to meet particular criteria, which will form the basis of your claim. Examples of these criteria include illegality or irrationality by the public body. If the decision-making process of the public body’s action was illegal, the court may, for instance, give any of the following remedies:
- quash a decision and ask the public body to reconsider;
- make a mandatory order compelling the public body to undertake a particular action;
- make an injunction to stop the public body from doing something; or
- make a declaration.
The court may also decide to award damages.
What is Procedural Impropriety?
Procedural impropriety is one of the grounds that your business may be able to use to bring a case of judicial review against a public body. You may hear people refer to this ground as unfairness. Procedural impropriety concerns situations where legal procedures are not abided by or where the decision was not fairly made. This second issue is also called a failure to follow the rules of natural justice. Therefore, a public body’s decision could be unfair where:
- they did not abide by procedural legal duties or did not treat your case the same way they have treated other similar cases;
- there was a legitimate expectation for them to act in a specific manner, and they did not;
- they were biassed when making their decision;
- there was no reasoning for the decision; or
- you were not consulted on the decision.
In terms of bias, the public body could have shown actual bias where they were evidently prejudiced against you. However, they may have instead shown an appearance of bias, which is why the decision was not seen as fair.
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How Can I Challenge a Decision through Procedural Impropriety?
If you think a public body has made a decision unlawfully because of procedural impropriety, you should first seek legal advice. This is because there is a strict procedure to go through, and undertaking judicial review can be an expensive process. The time limit is also crucial for bringing a claim. You must bring your claim within three months of the decision, but being as prompt as possible in making your claim is recommended. In other words, you should avoid leaving the claim towards the end of the three-month period. However, in certain circumstances, a court may extend the time limit.
You are also required to send a letter to the decision maker stating the issue before making a claim. This is the pre-action protocol for judicial review. If no action is taken, you may request the court’s permission to bring a claim for judicial review. The test for permission is whether you have an arguable case. The court may decide this by looking at your written evidence or may want to hold an oral hearing.
This checklist will help you identify areas in your business that may need further protection or assistance to ensure you are legally compliant.
Key Takeaways
If a public body has decided against you or your business and you do not think they lawfully arrived at this decision, you may have a case for judicial review and seek remedies. This form of review evaluates whether the decision-making process was lawful but not the correctness of the decision itself. Procedural impropriety is one of the grounds for judicial review. It is concerned with whether a public body has followed laws correctly or the natural rules of justice. Judicial review is a strict procedure with its own rules, so it is crucial that you:
- seek experienced legal advice;
- ensure you are within the time limits to bring a case; and
- follow the pre-action protocol.
If you need help understanding judicial review for challenging proceedings in the UK, LegalVision provides ongoing legal support for businesses through our fixed-fee legal membership. Our experienced disputes and litigation solicitors help businesses manage contracts, employment law, disputes, intellectual property, and more, with unlimited access to specialist lawyers for a fixed monthly fee. To learn more about LegalVision’s legal membership, call 0808 196 8584 or visit our membership page.
Frequently Asked Questions
Procedural impropriety arises when a decision-maker fails to follow proper procedures or acts unfairly. It focuses on how the decision was made, not the outcome itself.
Examples include failing to follow required procedures, showing bias, not giving reasons, or denying you the opportunity to be heard. These issues can make a decision unfair.
Procedural fairness ensures decisions are made transparently and without bias. It protects your right to be heard and helps maintain trust in legal and administrative processes.
Yes, if a court finds procedural impropriety, it can quash the decision. Failing to follow mandatory procedures or natural justice can render a decision unlawful.
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