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Judicial Review - requirement to be ‘prompt’ in proceedings removed

As from the 8th January 2018 the rules concerning judicial review procedure have changed. On this date The Rules of the Court of Judicature (Northern Ireland) (Amendment) 2017 became operative and omitted reference to ‘promptly and in any event.’ 
 

The impact of this change

Although this may appear a modest change, it is likely that this amendment will have a significant impact on the practice of judicial review. 
 
The requirement to be ‘prompt’ in judicial review proceedings has been removed. Therefore provided a judicial review application is brought within three months, there is no risk that an application will be refused on grounds of delay. 
 
This subtle change may have important implications. For those within the advice sector, this should assist clients who wish to challenge public body decisions, as the prompt requirement often created consternation in bringing legal proceedings and may have been a complete barrier on occasions.  
 
The pressure on applicants to secure the necessary funding for such challenges, has also been relieved further, and in instances where funding remains evasive, there may now be further opportunities to resolve matters outside of court. 
 
Some may of course argue that this change will delay finality for public decision makers, however even with the change, applicants should always be encouraged to act as quickly as possible. The change should bring increased consistency and predictability for applicants to the court. 
 
Within the housing sphere, where potential applicants are often vulnerable and unfamiliar with legal processes and the avenues to obtain assistance, any step which improves the opportunity for such applicants to access the courts is to be welcomed. 
 

Judicial Review Prior to 2018 

As any application for judicial review will challenge the practices of a public body, it is often the case that such a legal challenge has the potential to impact on interests wider than those of the individual applicant. Although this is a positive aspect of judicial review, which can often improve decision making throughout the public sector generally, such challenges can also result in delay and uncertainty in public operations.The judicial review rules have been formulated to ensure challenges are time limited.
 
Prior to January 2018 the rules were set out as such:
“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application should be made. ”
The Courts in NI regularly emphasised that an application for judicial review should be made promptly and that applications made within the three month time period could still be deemed out of time, if deemed not to be have been brought promptly. Under this framework it was important to emphasise that an applicant for judicial review did not enjoy a three month time limit. 
 
However despite the Courts continued emphasis that an application must be brought promptly, debate had continued about what did ‘promptly’ actually mean. It is the lack of a clear definition that has ultimately resulted in the change to the framework.
 

Judicial review proceedings in housing 

The decisions that can be challenged via judicial review are wide ranging, and importantly may include housing matters. Judicial review proceedings have been utilized in Northern Ireland to successfully challenge the decision making of housing providers.  
 
The significance of judicial review proceedings in the housing sphere can be illustrated in the case of Re Turley’s Application [2013]. In this instance a Housing Association was challenged by an individual as to whether it had acted lawfully when allocating housing units in a new housing development. The individual had been assessed as homeless and was on the waiting list for accommodation; he believed that when accommodation was allocated, that he had been unfairly overlooked. Following an application for judicial review, the Court was asked to assess whether the Housing Association had followed the statutory housing scheme, and whether the allocation decision- making process had been impaired by bias. 
 
The Court ultimately found that the process by which the properties were allocated was unfair and unlawful. The Housing Association had breached the applicant’s legitimate expectation that it would follow the statutory scheme. Additionally the Court found that the decision making process had been impaired by bias. 
 
This judicial review decision had a direct impact on the housing management of social landlords, and is illustrative of the critical role judicial review plays in ensuring individuals have access to justice. 
 
As judicial review has such a crucial role in matters of matters of public interest, it of the upmost importance that relevant persons, including advice agencies, are aware of procedural changes to the grounds in bringing a judicial review.  
 

European Union Case law 

The important procedural change highlighted in this article stems from the seminal case of Uniplex (UK) Ltd v NHS Business Services Authority [2010], where there was a clear move towards and an almost inevitability of change to the judicial review procedural.
 
The CJEU’s ruling in Uniplex meant that the ‘promptly’ requirement no longer applied in any case falling under the European Communities Act 1972. The European Court had considered whether the ‘promptly’ requirement was consistent with EU principles, particularly the principle of legal certainty. The Court decided that the ability of the domestic courts to dismiss a case brought within three months, however ultimately considered not to have been brought promptly, was contrary to the EU principle of certainty.  The Court believed that such a circumstance could undermine the effective protection of rights. 
 
As a corollary of the Uniplex case, domestic courts, including those in NI, proceeded to abandon the promptly requirement in all cases involving provisions of EU law. In such cases the time limit was three months, unless the court considered there was good reason for extending that period.
 
However a disparity resulted, in that the promptly requirement continued to persist in cases that did not raise points of EU law, leading the inevitable change we see today of the judicial review procedure.
 

Tagged In

Regulation, Case law, Legal

Author

Christopher McGrath