Judicial review: is there an alternative?

Judicial review has proved in recent years to be a well-understood and popular bulwark against a perceived unfairness by public authorities. In the first half of 2013, applications lodged in the Administrative Court topped 1,100 per month. The government has expressed concern about "money wasted in dealing with unmeritorious cases which may be brought simply to generate publicity".

On 1 July this year, changes to the procedure for judicial review took effect. In the light of these restrictions, it is likely that aggrieved parties will themselves increasingly consider alternative options. This note considers whether challenges by way of 'case stated' might be more appropriate that judicial review to challenge the decisions of Magistrates' and Crown courts, as well as a limited number of tribunals.

Alternative remedy

As Lord Brightman implied in the House of Lords in Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155 at 1174, applications for judicial review are often misconceived: "Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."

Indeed, the availability of an alternative remedy will always be a consideration of the court in any event when considering an application for permission to proceed with an application for judicial review at all.

The benefits of the case stated procedure where there is a potential dispute concerning the factual matrix to be considered are obvious. In McCombie v Liverpool City Magistrates' Court [2011] EWHC 758 (Admin). Mr Justice Blake suggested:

"...the participation of the interested party, in identifying all the material facts that go into the stated case, and of course the benefit of the district judge's reasoning on the questions that he has identified in his judgment are of considerable importance."

Procedure

For the general procedure reference should be made to CPR PD 52E. Essentially, a 'case stated' should set out the facts as found or accepted for the purpose of the ruling (with reference to any relevant documents), the submissions made by each side, in summary form and the court's conclusion and question for the consideration of the High Court.

Advantages and disadvantages

Judicial review, being substantially based on the common law can be used to challenge a decision of anybody exercising a public function on appropriate grounds, provided there is standing. An appeal by way of case stated, however, is statute-based and can only be pursued where legislation expressly so provides. For example, there is no provision in the Licensing Act 2003 which would allow a case to be stated by the licensing authority itself.

The appropriate time for stating a case on a point of law is after the conclusion of the substantive hearing. Where a tribunal has made an interim ruling which is challenged it is inappropriate for a case to be stated and the aggrieved party should seek permission to obtain judicial review. That is also the most appropriate mode of challenge where the complaint is that the inferior court misunderstood its role or functions (R v Chief Commons Commissioner, ex p Winnington (1982) Times, 26 November).

However, there can be a distinct advantage in proceeding by way of case stated in cases where the challenge is to the exercise of a discretion made in the lower tribunal. The reason for this (as Collins J pointed out in R (Chief Constable of Sussex) v Chichester Crown Court and Stoner), is that the High Court has greater theoretical latitude in appeals by way of case because it can exercise the discretion afresh on broad grounds, whereas in judicial review it must conclude that the award was perverse before it can intervene.

Finally, two disadvantages of case stated. First, whilst the time limits for certain judicial reviews are reducing, any application to state a case must be made within just 21 days of the day on which the decision of the Magistrates' Court was given. Second, it should be borne in mind that a decision of the High Court on a case stated by magistrates in a non-criminal matter is final and may not be appealed to the Court of Appeal.