6 September 2021
Disputes Quick Read – 44 of 87 Insights
Disputes Quick Read: Judicial Review and Courts Bill – unpacking the UK government's proposed amendments
On 21 July 2021, the UK government published the Judicial Review and Courts Bill (the Bill), which broadly adopts the IRAL's recommendations on judicial review and legislation. The Bill puts forward two amendments to existing legislation, which we unpack below.
Proposed amendment #1: Encouraging suspended/prospective quashing orders
The first proposed legislative amendment gives additional flexibility to the courts to make suspended and/or prospective quashing orders. The courts arguably had this power already, but the Bill intends not only to clarify the position, but also to encourage the use of suspended and prospective quashing orders (which traditionally have been ordered very rarely).
Under the Bill, if the court is going to make a quashing order, and a suspended or prospective quashing order would offer adequate redress regarding the relevant defect, the court must make either of these orders, unless it sees good reason not to.
The government believes there are two benefits to this approach:
- First, where significant constitutional questions are raised, Parliament would have an opportunity to clarify or amend the position.
- Second, these orders could allow the defect in a decision to be corrected, rather than simply quashing it retrospectively.
Proposed amendment #2: Removing Cart judicial reviews
The second proposed amendment is to reverse the decision in R(Cart) v Upper Tribunal, removing the ability to judicially review decisions by the Upper Tribunal to refuse permission to appeal decisions of the First Tribunal.
The government's rationale for this amendment is the number of challenges via this route is high and the success rate is low – the IRAL has suggested a success rate of 0.22% (whereas the government believes it is 3%) – with the cost to taxpayers amounting to £300,000 a year.
Critics of the Bill have focused predominantly on the second proposed amendment, disputing the figures behind the cost/benefit analysis and arguing that the costs are lower and the chances of success higher. Since the removal of Cart judicial reviews applies particularly to the immigration tribunal, they further contend that the second proposed amendment would mean the removal of a safeguard that protects already marginalised people.
The Bill's detractors' overarching concern is that the Bill may set a precedent for the government to give itself the power to remove certain types of cases from the scope of judicial review, which could impact on the rule of law.
Find out more
We recently spoke at the Westminster Legal Policy Forum about the proposed changes to Judicial Review and will continue to monitor the Bill as it progresses through Parliament, as well as any other changes following the IRAL review (including the proposed procedural reforms which the CPR Committee has been invited to consider). To discuss the issues raised in this article in more detail, please reach out to a member of our team.
In this series
New SFO Director announces bold plans to tackle fraud
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First of its kind judicial guidance on the use of AI in the courts
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Witness familiarisation - does it affect the court's assessment of witness credibility?
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The use of AI in Trial Witness Statements post-PD 57AC
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CAT to hear the first application for a collective settlement approval order
17 October 2023
Failure to prevent fraud – a new offence?
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Supreme Court rules that APP fraud victims cannot rely on Quincecare Duty
4 August 2023
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The Law Commission's Consultation Process on the Arbitration Act 1996 – taking stock
21 July 2023
What does the latest decision of the CAT in the Mastercard/Visa proceedings mean for class actions?
10 July 2023
Disputes Quick Read: ClientEarth refused permission to pursue directors of Shell
1 June 2023
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Disputes Quick Read – developments in the fixed costs regime
3 May 2023
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Disputes Quick Read: Service by email – are the rules any clearer?
20 April 2023
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Disputes Quick Read - What do practitioners think about making alternative dispute resolution (ADR) compulsory?
8 March 2023
Disputes Quick Read: What are the litigation trends for 2023?
2 March 2023
Disputes Quick Read: further guidance on witness statement preparation rules
14 February 2023
Disputes Quick Read: A cautionary tale – settlement agreement (un)wittingly releases all claims for fraud
13 February 2023
Disputes Quick Read: Why the UK should join the Hague Judgments Convention 2019
8 February 2023
Disputes Quick Read: extensive information orders granted against crypto exchanges following hack
19 January 2023
Disputes Quick Read: A new approach to giving evidence? WhatsApp with that?
3 October 2022
Disputes Quick Read: Ethereum Merge - what legal issues arise?
22 September 2022
by Ben Jones, Emma Allen
Disputes Quick Read: New obligations on cryptobusinesses to report under the UK sanctions regime
9 August 2022
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Disputes Quick Read: Disclosure - What information can be redacted?
25 July 2022
Disputes Quick Read: what claims exist when a smart contract is breached?
6 July 2022
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Disputes Quick Read: New gateway for serving Norwich Pharmacal Orders and Bankers Trust orders out of the jurisdiction
Welcome news for those pursuing fraud claims in the English Courts
28 July 2022
Disputes Quick Read: Defining the duty - the limits of the responsibility assumed by professionals
27 July 2022
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Disputes Quick Read: Climate change litigation – successful challenge to government's Net Zero Strategy
29 July 2022
Disputes Quick Read: Judicial Review and Courts Act 2022 – now in force
17 June 2022
Disputes Quick Read: an important reminder of the duty to disclose electronic documents in native format
13 June 2022
Disputes Quick Read: ENRC prevails in claim against former solicitor
26 May 2022
Disputes Quick Read: Climate change litigation update – McGaughey v Universities Superannuation Scheme Limited
31 May 2022
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Don't lose your keys: Bitcoin developers do not have a duty to assist owners in recovering lost cryptocurrency
4 April 2022
Disputes Quick Read: The new witness statement preparation rules – a year on
5 April 2022
Disputes Quick Read: ClientEarth v Shell – climate change litigation shifts focus to UK companies
31 March 2022
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Disputes Quick Read: High Court rules that failure to provide adequate data security is not a positive act
21 September 2021
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Disputes Quick Read: Key changes to the Disclosure Pilot Scheme
13 September 2021
Disputes Quick Read: Judicial Review and Courts Bill – unpacking the UK government's proposed amendments
6 September 2021
Disputes Quick Read: Will litigants be compelled to participate in alternative dispute resolution?
2 August 2021
Disputes Quick Read: Freezing injunctions – maximum custodial sentence imposed for breach
21 July 2021
Disputes Quick Read: The online future of civil justice – the end of the legal profession or the end of legal drudgery?
15 July 2021
Disputes Quick Read: Will the courts change forever post-COVID?
26 May 2021
Disputes Quick Read: One Blackfriars administrators cleared of misfeasance
5 May 2021
Disputes Quick Read: Not your prerogative – the Independent Review of Administrative Law reports its recommendations on judicial review
21 April 2021
Disputes Quick Read: Amendments to the Disclosure Pilot Scheme – a step in the right direction
31 March 2021
Disputes Quick Read: UK Supreme Court rules on the territorial extent of the SFO's powers
26 February 2021
Disputes Quick Read: No dropping anchor – parent company liability for environmental claims
24 February 2021
Disputes Quick Read: What lawyers need to know about new witness statement preparation rules
20 January 2021
Disputes Quick Read: Should you still choose the English courts to have jurisdiction in your international contracts after Brexit?
12 January 2021
by Tim Strong
Disputes Quick Read: Privilege lost in the EU post-Brexit (with exceptions)
23 November 2020
Disputes Quick Read: Law on interest applicable to US dollar awards reaffirmed
16 October 2020
Disputes Quick Read: Care required when drafting SPA claim notices
23 September 2020
by Multiple authors
Disputes Quick Read: Why the modernised LCIA rules are a welcome update
7 October 2020
by Nick Storrs
Disputes Quick Read: COVID-19 and supply chain disruption – key issues
9 April 2020
by Multiple authors
Disputes Quick Read: High Court orders parties to explore options for 5-week remote trial
15 April 2020
Disputes Quick Read: Tomlin Orders – ensuring the confidentiality of settlement terms
27 April 2020
by Multiple authors
Disputes Quick Read: UK's OFSI fines Standard Chartered Bank £20 million for sanctions breaches
21 April 2020
Disputes Quick Read: A different approach to witness evidence
11 March 2020
by James Bryden
Disputes Quick Read: Coronavirus - a growth in virtual courts?
17 March 2020
by Stuart Broom
Disputes Quick Read: Embracing remote hearings – the experience to date
26 March 2020
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Disputes quick read: climate change activism by litigation
26 February 2020
Disputes Quick Read: Commercial Court's arbitral power shift
21 February 2020
Disputes Quick Read: Court stays evictions during COVID-19 – is this lawful?
2 June 2020
Disputes Quick Read: Will the civil justice system change forever post COVID-19?
16 June 2020
Disputes Quick Read: Retailers reign supreme in Visa and Mastercard proceedings
9 July 2020
Disputes Quick Read: The contra proferentem rule reconsidered?
21 July 2020
Disputes Quick Read: Scope of duty and the SAAMCo counterfactual following Manchester Building Society
3 December 2021
Disputes Quick Read: Facilitating transactions in cryptoassets - Lord Leggatt and the point of commercial law
24 November 2021
by Stuart Broom
Disputes Quick Read: Privy Council clarifies the law on freezing injunctions in aid of foreign proceedings
8 October 2021
Disputes Quick Read: Climate change litigation – what's the latest?
10 January 2022
Disputes Quick Read: Court decisions on the Disclosure Pilot Scheme – the 2021 roundup
20 January 2022
Disputes Quick Read: Assumption of responsibility - tax schemes and investors
22 March 2022
Disputes Quick Read: Dealing in crypto? Be careful what you call it
7 April 2022
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