What is the Pre-Action Protocol for Judicial Review

The Pre-Action Protocol for Judicial Review provides a framework for related proceedings in England and Wales. With the aim of helping parties identify any issues and make informed decisions in a dispute, the protocol encourages parties to resolve matters before resorting to litigation. Its primary goal is to facilitate early information exchange, promote the use of alternative dispute resolution (ADR), and reduce unnecessary costs.

The Protocol urges parties to consider alternative options such as complaint procedures, internal review mechanisms, ombudsman services, or mediation before initiating Judicial Review. In some cases, the Court may require evidence that these avenues have been explored before moving forward with Judicial Review.

Additionally, the protocol stresses that Judicial Review should be seen as a final option if all else fails to resolve. The Court will assess whether the steps taken are proportionate to the importance and urgency of the issue at hand. In support of the civil procedure rules (CPR), the Pre-Action Protocol is still requested at the earliest opportunity does not provide exception for the time limit in place.

The protocol is designed to ensure that the parties comply with these requirements ahead of any formal court proceedings. The Court will consider both adherence to and non-compliance with the protocol when making orders for costs and assessing whether parties have met the required standards before beginning Judicial complaints or review procedures.

Judicial Review: Alternative Dispute Resolution before Litigation

The Pre-Action Protocol for Judicial Review highlights the Court’s expectation that parties must explore Alternative Dispute Resolution methods before resorting to litigation in Judicial Review cases.

Parties are encouraged to consider various forms of Alternative Dispute Resolution (ADR) techniques, such as:

• Internal complaint procedures
• Negotiation
• Ombudsman services
• Mediation

Failing to attempt ADR during the Pre-action stage could be seen as unreasonable by the Court, potentially leading to cos penalties. While the Court expects Judicial Review applications to be filed within three months of the issue arising, non-compliance with the ADR requirement is not justifiable against the time limit for initiating a claim.

The Pre-Action Protocol Process for Judicial Review

The Pre-Action Protocol for Judicial Review outlines the following key steps:

Request for Pre-Action Disclosure – The Claimant may request pre-action disclosure to better understand the basis of the decision and accurately identify the issues at stake; this request should be proportionate. The Respondent’s legal representative is expected to comply with a reasonable request, and failure to do so could result in cost sanctions.

Letter Before Claim – The Applicant must send a Letter before Claim to the Respondent, using the standardised form provided in the protocol. This Pre-action Protocol letter should outline a summary of the facts, including the Respondent’s specific offices and individuals involved, the nature of the challenges, any proposals for Alternative Dispute Resolution, and the expected date for a response.

Letter of Response – The defendant must respond within 14 days or propose a reasonable extension with an explanation. The response should indicate whether the claim is conceded in full or part, denied, or if a new decision will be made. Failure to provide a response without valid justification may be considered by the Court when determining costs.

These steps are designed to help parties understand the issues, make informed decisions, attempt to resolve disputes without initiating formal proceedings, and reduce unnecessary costs.

Possible Protocol Exemptions

instances do exist in which the Pre-Action Protocol may not be applicable or expected from parties. This can be in circumstances such as:

• Time-Barred Claims: If a claim is likely to be time-barred, the protocol may not be required. Although a Judicial Review claim should generally be made within three months of the grounds for the claim arising, the Court may allow an exception in the form of a late claim in certain situations
• Lack of legal power: If the Respondent does not have the legal authority to alter the decision being challenged, following the protocol may be irrelevant to the Judicial Review application.
• Urgent cases: In urgent situations, such as those involving The Home Office, when a Respondent is at risk of being removed from the UK and an interim order is needed, the protocol does not apply.

Costs Recoverability for Judicial Review Pre-Action Protocol

Generally speaking, costs cannot be recovered if a case settles during the Judicial Review Pre-Action Protocol stage. Legal aid is available for many Judicial Review cases to support access to justice.

To recover legal aid costs, solicitors must submit details of their expenditure, including profit costs and disbursements, through the LAA’s online billing system (CCMS). This can be done via Payments on Account (POAs) for ongoing cases, interim bills for completed stages, or final bills for concluded cases.

The Legal Aid Agency (LAA) enforces strict guidelines for invoicing and cost submissions, so it’s advisable to work with a costs expert who can assist to ensure accurate and proper submissions.

Submitted bills are scrutinised for compliance, and once accepted, the LAA may request supporting documents like court papers and invoices before making a payment. While solicitors may recover costs for completed work, reductions may apply if the LAA deems the amount unreasonable or inaccurate.

In some cases, the Court may award inter-partes costs if a Judicial Review Claim Form has been filed and the proceedings are successful or withdrawn based on a concession from the Respondent, typically through a Consent Order. This order will usually require the Defendant to pay the Claimants costs, subject to assessment.

In such instances, the agreement with the LAA acts as the retainer, allowing the Applicant Solicitors to recover costs from the Respondent.

Additionally, If the Respondent fails to respond within the required timeframe and the case proceeds to Judicial Review, the Applicant may recover legal fees by submitting a Bill of Costs to the paying party.

How can Greener Costs assist

 Greener Costs is a team of specialist Costs Draftsman and Costs Lawyers who are professionally equipped to with years of expertise to assist with all costs-related matter and disputes.

If you seek assistance recovering or defending Judicial Review costs, navigating a Judicial Review Costs Schedule, or the quantification and recovery of costs from the LAA, feel free to get in touch with a member of the team.

While a Letter before action, which is resolved pre-action, does not grant costs entitlement, litigated matters that progress to formal Judicial Review often result in costs awards if the Applicant is successful.

For additional information or advice or legal costs, contact us today by email at info@greenercosts.co.uk. Alternatively, call us on 01204 263047.