RULE 28A – SETTING ASIDE A DECISION OF THE PAROLE BOARD
MIRREN GIDDA - No5 Chambers 1
A. Introduction and Summary
1. S.133 of the Police, Crime, Sentencing and Courts Act 2022 amended s.239 of the Criminal Justice Act 2003, the core statute setting out the Parole Board’s powers as as a body corporate. It conferred on the Secretary of State: (i) an additional rule making power regarding provisional decisions and when decisions became final (s.239(5A)), and (ii) a further power on the Board to set aside a decision (s.239 (5A[c]) and (5B)), which is now reflected in Rule 28A of the Parole Board Rules 2019 (as amended) by the Parole Board (Amendment) Rules 2022/717 rule 2(20).
2.The new power was clearly aimed at R (Dickins) v Parole Board [2021] 1 WLR 4126, which held that the Parole Board was functus once a decision had been communicated by a panel chair, and it could not consider new information once it had directed release, no matter how relevant. In Dickins, an hour and a half after the case manager had received the panel’s decision and reasons, the Board was informed that the claimant had been returned to closed conditions following an allegation of receiving alcohol and steroid tablets.
3. Since the power came into effect, the Parole Board has issued 113 decisions, 2 of which 47 set aside the final decision. Just 5 of the successful applications were made by prisoners, while 35 were made by the Secretary of State. The Secretary of State has a 71% success rate in setting aside a decision.
1 With thanks to Stuart Withers for reviewing an earlier draft.
2 As published on BAILII https://www.bailii.org/ew/cases/PBRA
4. Rule 28A of the Parole Board Rules 2019 provides:
(1) The Board may set aside a final decision made under rule 19(1)(a) or (b), 3 21(7) 4 or 25(1) 5
(a) on application by a party; or
(b) on initiation by the Board chair.
(2) An application or initiation under paragraph (1)(a) or (b) must be considered on the papers by a decision maker.
(3) A final decision may be set aside under paragraph (1) by a decision maker if
(a) it is in the interests of justice to do so; and
(b) one or more of the conditions in paragraph (4) are satisfied.
(4) The conditions are
(a) the decision maker is satisfied that a direction given by the Board for, or a decision made by it not to direct, the release of a prisoner would not have been given or made but for an error of law or fact;
(b) the decision maker is satisfied that a direction given by the Board for the release of a prisoner would not have been given if
(i) information that was not available to the Board when the direction was given had been so available, or
(ii) a change in circumstances relating to the prisoner that occurred after the direction was given, had occurred before it was given.
(5) An application or initiation to set aside a decision under paragraph (1)(a) or (b) must be made
(a) within 21 days of the decision; or
(b) if the application or initiation relies on a condition in paragraph (4)(b), before the prisoner is released.
(6) Where an application is made under paragraph (1)(a)
(a) the party who made the application must serve the application and any representations in support upon the Board and the other party;
(b) the Secretary of State must serve all relevant information and reports upon the Board and the other party; and
(c) the other party may make any representations in reply, and those representations must be provided to the Board and the party who made the application within 7 days of service of the application.
(7) Where an initiation is made under paragraph (1)(b)
(a) the Board must notify both parties of the initiation by the Board chair and serve any reasons in support of the initiation upon the parties;
(b) the Secretary of State must serve all relevant information and reports upon the Board and the other party; and
(c) the parties may make any representations in reply, and those representations must be provided to the Board and the other party within 7 days of service of the initiation.
(8) Where the decision maker directs that a final decision should be set aside, they must also direct that the case should be
(a) decided again on the papers by the previous panel or a new panel appointed under rule 5(1), or
3 Consideration of release on the papers
4 Decision on the papers after direction for an oral hearing
5 Decision by the panel at an oral hearing
(b) decided again at an oral hearing by the previous panel or a new panel appointed under rule 5(2).
(9) The decision of the decision maker under paragraph (3) must include the reasons for that decision.
(10) Any requirement on the Secretary of State to give effect to a Parole Board direction to release a prisoner under Chapter 2 of Part 2 of the 1997 Act or Chapter 6 of Part 12 of the 2003 Act, is suspended when an application is made under paragraph (1)(a) or (b), pending the decision under paragraph (3).
(11) In this rule, "decision maker" means— (a) a panel appointed under rule 5(4A) to consider the application; unless (b) one or more grounds of the application related to paragraph (4)(b) of this rule apply and the panel appointed under rule 5(4A) delegates the role of decision maker to the chair of the panel who made the decision which is sought to be set aside.
5. The key points to note are that the power to set aside final decisions is discretionary. The Parole Board may set aside a final decision on application by a party or on initiation by the Chair of the Parole Board. What constitutes a final decision is determined by references to the Parole Board Rules and the Parole Board’s ‘Setting Aside a Decision Guidance’. 6 For example:
a. Decisions made pursuant to Rule 19(1)(a) or (b), Rule 21(7), and Rule 25(1), which are eligible for reconsideration are provisional until: (a) the time elapses for a reconsideration application to be made, and the decision becomes final (Rule 25(2)), or (b) when an application for reconsideration is made and the reconsideration panel issues a negative decision and the provisional decision becomes final (Rule 28(8)).
b. In cases where an unsuccessful reconsideration application has been made, it is possible to apply within 21 days of that final decision to set it aside.
c. It is also possible to apply to set aside a final decision in a case that was eligible for reconsideration but where no application was made.
d. If a case is not eligible for reconsideration, an application for set aside can be made within 21 days of the decision. The only eligibility requirement is that it is a final decision as defined in Rule 28A(1). Unlike the reconsideration mechanism, it does not apply only to certain types of prisoners.
6 Available at https://assets.publishing.service.gov.uk/media/635bab8ad3bf7f20dd7c9ea0/Setting_Aside_Guidance_ .pdf (p7).
e. Decisions regarding termination of IPP licences, recommendations for open conditions, or refusing to direct a case to an oral hearing, or any other advice type cases, are not eligible for the set aside process.
6. An application or initiation will be decided on the papers by a single decision maker.
7. A final decision may be set aside by the decision maker if it is:
a. In the interests of justice to do so; and
b. The decision maker is satisfied that the decision by the Board to direct or not to direct release would not have been given or made but for an error of law or fact.
8. These terms are not defined further in either the statute or the Parole Board Rules 2019 In Drake [2022] PBSA 8, the Panel Chair requested closing submissions from the Applicant but then made a no-release decision before receiving them. In setting aside her decision, the Parole Board held that, when considering the interests of justice, “justice requires that the Applicant should have a fair hearing of his case, including a fair opportunity to make closing submissions” [22]. It is clear that the term ‘interests of justice’ includes a wide variety of factors which are context specific.
9. Errors of fact may arise where the Board has made a material mistake as to an established fact or reached a view on the relevant facts that no reasonable decisionmaker could have reached.
10. As for errors of law, Halsbury’s Laws of England, volume 61A, paragraph 13 provides the following extensive definition:
“A public body will err in law if it acts in breach of fundamental human rights; misinterprets a statute or any other legal document, or a rule of common law; frustrates the purpose of a statute or otherwise acts for an improper purpose; takes a decision on the basis of secondary legislation, or any other act or order, which is itself ultra vires; takes legally irrelevant considerations into account, or fails to take relevant considerations into account; admits inadmissible evidence, rejects admissible and relevant evidence, or takes a decision on no evidence or on the basis of a material mistake of fact; misdirects itself as to the burden of proof; fails to follow the proper procedure required by law; fetters its discretion or improperly delegates the decision; fails to fulfil an express or implied duty to give reasons; acts arbitrarily or discriminately; or otherwise abuses its power ”
11. As can be seen below, despite error of law being a wide term of art, some panel members considering set aside applications have taken a narrow view of what it entails, and suggest that it refers to illegality only. This is likely because Dickins, which preceded Rule 28A, equated error of law with illegality.
12. The decision maker may also set a direction for release aside if they are satisfied that it would not have been given if information that was not available to the Board at the time had been given, or if a change of circumstances that occurred afterwards had occurred before the direction was given.
13. An application or initiation must be made within 21 days of the final decision being made, unless it relates to new information or a change in circumstances, in which case it can be made any time before the prisoner is released.
14. Any application must be served on the Board and the other party, and the Secretary of State must serve all relevant information and reports on you and the Board. The other party may (note: not must) make any representations by way of reply within seven days of service
15. If the Board makes an initiation, it must notify both parties of it and serve them with any reasons. As with applications, the Secretary of State must serve all relevant information and reports on you and the Board, and the parties may (note: not must) make any representations by way of reply within seven days of service.
16. The form for making a set aside application can be accessed here: https://assets.publishing.service.gov.uk/media/63767fbc8fa8f57721e34e31/Setting_A side_Application_Form_-_June_2022__Final_.pdf Once you have completed the form, it can be sent by email to settingaside@paroleboard.gov.uk or by post to:
Parole Board Setting Aside Team
3rd Floor 10 South Colonnade London E14 4PU
17. Do note, the form itself recommends that you make an application by email as it is quicker. The Setting Aside Team will contact you to inform you of the decision taken.
18. Additional guidance about making a set aside application and which decisions can be set aside can be accessed via the Parole Board’s ‘Setting Aside a Decision Guidance’. The Guidance notes that the Panel can utilise its power under Rule 9 to extend or reduce the time set by Rule 28A for submitting a set aside application. This will only be exercised in “very exceptional circumstances”. A request to the Panel to alter time can only be made where the 21-day period applies and must be made within that period or it will not be considered.
19. If the decision maker directs that the final decision should be set aside, they must also direct whether the case should be decided on the papers by the previous panel or a new panel or by way of an oral hearing by the previous panel or a new panel. The decision maker must also give reasons for their decision.
C. Parole Board Decisions
20. BAILLI helpfully lists all applications and initiations for set aside made since 21 July 2022, when Rule 28A came into effect.
21. There are currently 113 decisions available to read on BAILII. These break down as follows: 7
22. Breaking the applications down further:
applications
applications made by prisoners
7 All data analysis provided by Mirren Gidda
Secretary of State for Justice applications
8 The Parole Board did not note that this not a permissible ground when seeking to set aside a direction not to release: Baker [2024] PBSA 10
Parole Board Chair initiations
NB: All but one of these initiations were made following a panel’s decision to direct release. The reasons for the Parole Board initating the set aside process were: the Secretary of State had been invited to make a set aside application but declined; the Secretary of State had withdrawn his set aside application; the Secretary of State had sought clarification from the Parole Board; and, in one case, a duty member had made a referral following licence variation requests.
The Parole Board Chair initiated the setting aside of a direction not to direct release where representations made for reconsideration had not been received but, by the time the error was realised, the reconsideration panel had become functus (O’Neill) [2023] PBSA 43.
No. of initiations made by Chair of PB
23. As the above tables show, the Secretary of State for Justice has a much higher success rate in getting Parole Board decisions set aside. A major factor is that it is much easier to evidence new information or a change of circumstances than it is an error of fact or law.
24. Prisoners must therefore be advised that an application to set aside can be made at any point prior to their release and to refrain from behaviour that may give cause to doubt the decision to release them. One such example is Boreham [2024] PBSA 8, where a prisoner told a panel that he was not in a relationship and his release was directed. New information was received from probation which provided evidence that he had been in contact with his ex-partner and had been threatening towards her.
25. That notwithstanding, the Secretary of State has failed in some applications, which provide suggestions for how to defend any set aside applications your clients might face:
a. If the Secretary of State is seeking to argue that there has been a change in circumstances, be sure there actually has been. In Chappell [2022] PBSA 25, PPCS received information from the Respondent’s COM that he had stated he would not comply with his accommodation or licence conditions. The Respondent stated that he can have adverse reactions when frustrated, which was accepted by the review panel. The Parole Board held at [23] that this therefore appeared “to be a further example of the Respondent reacting negatively when frustrated” and so did not constitute a change in circumstances.
b. Similarly, if the Secretary of State is seeking to argue that there has been new information, make sure it is new. In Tusting [2023] PBSA 66, the Secretary of State raised a number of outstanding and ongoing criminal matters that it said probation were not aware of at the time of writing the Respondent’s Part B. The Parole Board noted that the new information was already in the dossier. It also only stated that the Officer in Charge was “confident” that the Respondent would be charged, not that he had been That, the Parole Board held, was opinion and not fact and could not be described as new information. It also held that the Respondent’s explanation for his whereabouts, which he provided, could not be properly described as new information.
c. If the new information relates to unproven allegations, apply R (Pearce) v Parole Board [2023] A.C. 807 and consider what findings of fact, if any, can be made. In Davis [2023] PBSA 10, allegations were made of past sexual offending against a child. The Parole Board applied Pearce and noted that a police investigation into the allegations was ongoing and the Respondent had not been charged or convicted. It held that, had the information been before the panel, it would not have been enough for it to have made a finding of fact or assessed the weight to ascribe to it. The Respondent’s risks were known and his licence conditions accounted for them. The Parole Board held at [33]: “I do not find that the panel’s decision would have
been affected by the new allegation(s)” It further held at [36]: “It may transpire that the Respondent is subsequently charged and convicted of further offending. But the prospect of that is not a reason to set aside his release.”
d. Lastly, a lack of suitable release accommodation does not (without more) constitute reasons to set aside the release decision (Chambers [2023] PBSA 8; Clarke [2023] PBRA 33; Hyde [2023] PBSA 19). However, if new information comes to light that there is no prospect of a prisoner being released to specialist accommodation (where it was erroneously thought there was and where it had been recommended in the risk management plan), that is enough for the final decision to be set aside (Grant [2023] PBSA 27).
26. It should be noted that new information and/or changes in circumstances that relate to violence tend to prove persuasive with the Parole Board
27. The above tables also illustrate that prisoners have the lowest success rates in setting aside final Parole Board decisions. From this, several points can be drawn:
a. Where the Parole Board has erred in fact or law, prisoners are more likely (and would be advised) to make an application for reconsideration, assuming that they are eligible to do so. Rule 28 provides that decisions can be reconsidered where they contain an error of law or are irrational (the latter likely encompassing errors of fact). Accordingly, some prisoners who make set aside applications may be doing so having already had a reconsideration decision refused, which might suggest they do not have a strong case.
b. Prisoners will inevitably seek to set aside a decision not to grant release, meaning that they must demonstrate an error of fact and/or law. These are not easy tests, particularly when compared to evidencing a change in circumstances or new information. As set aside applications are considered on the papers, it is vital that submissions are succinct and clearly set out the identified errors of facts and/or law.
c. Succeeding on an error of fact means demonstrating that the Parole Board made an error of fact in its final decision and, but for that error of fact, it would have authorised release. In Adebisi [2023] PBSA 11, the Parole Board held that the Panel had made an error of fact in stating that there was no accommodation available for the Applicant, but, even if it had not made the error, it still would not have granted release owing to issues it found with the risk management plan as a whole. Submissions as to errors of fact must therefore clearly identify the error and why the Parole Board would have decided differently but for it. Submissions must not be used to set out why you disagree with the Parole Board or to try and have another bite of the cherry.
d. With one notable exception, prisoners have succeeded in set aside applications where they can show an error of law (this is discussed below) This requires clearly identifying the error of law and again evidencing that the Parole Board, but for that error of law, would have authorised release.
28. As noted above, prisoners have only succeeded in five set aside applications out of a total of 57. Although eligible prisoners should be advised to make reconsideration decisions while the panel’s decision is still provisional, it is worth looking into these successful applications in more detail.
29. In Sayers [2023] PBSA 29 and Stewart [2023] PBSA 76, which referred to Sayers, the applicant prisoners succeeded in demonstrating that their panels had failed to properly consider and address the causal link question, as set out in R (Dich and Murphy) v Parole Board [2023] EHWC 945 (Admin) (emphasis added):
17. In a non-life case, if continued incarceration up until the sentence expiry date will do nothing to avoid or reduce the risk thereafter, then it is not necessary for the protection of the public that the offender should be confined. The position is different if continued incarceration would reduce the risk to the public after the sentence expiry date (for example, by preventing the prisoner from taking steps that are preparatory to an offence, or by facilitating rehabilitative work that might reduce the risk post release). It follows that there must be a causal link between continued detention and prevention or reduction of risk
30. In Sayers, the Parole Board held:
26. In my view the result would probably have been different. The panel does not appear to have thought that there was any significant risk of serious harm during the 3 months prior to expiry of the custodial term: see paragraph 3.12 quoted above. The POM and COM considered risk manageable; and the panel
was concerned for the longer term. The question is therefore whether keeping the Applicant in custody for the remaining 3 months of the custodial term would have prevented or reduced his risk after the end of that term. The panel did not find, and there does not appear to be any reason to suppose, that he would have taken steps preparatory to the commission of an offence during that period or that any rehabilitative work would have been undertaken during it.
31. In the third successful application, Drake, the Applicant’s legal representatives had been asked by the Panel Chair to make closing submissions in writing, only to have the Chair make her decision without receiving the submissions. The Parole Board held that this was procedurally unfair and set the decision aside. Similarly, in the fourth successful application, Malik [2023] PBSA 61, the panel agreed to adjourn to await new information, but then made their decision without that information being received or considered. The Applicant stated that this was a breach of his Article 6 right to a fair hearing and was procedurally unfair. The Parole Board stated it agreed with the former contention.
32. Drake and Malik notwithstanding, if you are making a set aside application, care should be taken in seeking to claim procedural unfairness as an error of law. Although in Drake, the Parole Board stated at [16] that “it is an error of law for the Parole Board to take a decision in a manner which is procedurally unfair”, Rule 28 clearly treats irrationality and procedural unfairness as separate to an error of law. In Larsen [2024] PBSA 2, the Parole Board stated that it would not consider a submission alleging procedural unfairness. In Malik, the Parole Board took a more middle ground approach and stated at [20] that, while it found an error of law: “This is not to say that, as a general principle, every procedural error will give rise to an error of law.”
33. It would therefore be prudent for any submissions as to procedural unfairness to be brought, where possible, as reconsideration challenges under Rule 28.
34. Lastly, a prisoner succeeded in setting aside a decision to release based on a change in circumstances (Coghlan [2022] PBSA 23). Ms Coghlan had stated at her hearing that she did not want to be released to a particular accommodation to which her release was ultimately directed. Accordingly, she said were her hearing to happen again, she would not seek a direction for release.
1. This handout provides a brief guide as to how to approach claims for judicial review. A claim for judicial review is to be used as a last resort, and a potential claimant must have exhausted all alternative remedies prior to commencing their claim. Prison lawyers therefore must assess whether an application for reconsideration and/or to set aside a Parole Board decision is a potential alternative remedy and follow it through to its conclusion. A failure to follow an alternative remedy is relevant in relation to whether the court will grant you permission. As both the reconsideration and set aside process are akin to statutory appeals, the Administrative Court will be very slow to grant permission in a case where, if eligible, they have not been pursued. 1
2. For decisions that have been reviewed by either the reconsideration or set aside process, the court will be looking for clear reasons as to why the decision is unlawful. This in practice is particularly so when a decision has been reviewed by a former high court judge now sitting as a Parole Board panel member. 2
3. The public lawyer’s best friend is the free ‘Administrative Court Judicial Review Guide’ 3 All practitioners specialising in public law claims should familiarise themselves with it. It contains very helpful guidance and includes references to the key authorities on procedural issues.
1 R(McCourt) v Parole Board [2020] EWHC 2320 (Admin), §52; R (Bruton) v Parole Board [2022] EWHC 1692 (Admin), §79
2 However, a successful claim for judicial following reconsideration was brought in R(Stokes) v Parole Board [2020] EWHC 1885 despite the negative reconsideration decision of Sir David Calvert-Smith. Additionally in R(Bousfield) v Parole Board [2021] EWHC 3160 (Admin) the claimant was successful on all three grounds of review, which failed before the reconsideration panel.
3 Available at: https://www.judiciary.uk/courts-and-tribunals/high-court/administrativecourt/administrative-court-judicial-review-guide-2022/
4. It is important to remember pursuant to CPR 54.5 that the time limit to bring a claim for judicial review is: (a) promptly, and (b) in any event not later than 3 months after the grounds to make the claim first arose. The natural reading of the rule means that the date of the decision does not count for the purposes of bringing a claim for judicial review. The ultimate back stop is that a claim must be issued 3 months + 1 day of the date of the decision in question.
5. This is supported by the analysis in the White Book §54.5.1 which states:
“The time limit begins to run three months after the date when the grounds for the claim first arose. The time does not run from the date when the claimant first learnt of the decision or action under challenge nor from the date when the claimant considers that they had adequate information to bring the claim. Such matters may be relevant to the separate question of whether an extension of the time limit should be granted (R. v Secretary of State for Transport Ex p. Presvac Engineering Ltd (1992) 4 Admin. L. R. 121 at 133–134). As the time limit is expressed to expire three months “after” the grounds first arose, the day when the grounds first arose (usually the date of the decision or measure being challenged) is not included within the three-month period: see Zoan v Rouamba [2000] 1 W.L.R. 1509 at [23], and R. (Bednash) v Westminster City Council [2014] EWHC 2160 (Admin).”
6. However, a savvy Defendant may try and rely on erroneous case law stating that a claim for judicial review must be brought within three months. It is important not to use the 3-month time limit as a back stop. All efforts should be made to issue the claim promptly and as soon as possible to avoid a defendant taking a timing point against you The Administrative Court is usually sympathetic to prisoners, the inherent delays caused in bringing their claims due to their imprisonment, the delays in obtaining legal aid - when considering the need to be prompt. However, it does take a much stricter approach when you are out of time.
C. The Pre-Action Protocol for Judicial Review
7. In judicial review proceedings, there is a mandatory Pre-Action Protocol procedure. 4 It sets out a code of good practice and contains the steps which parties should generally follow before making a claim for judicial review. This includes setting a letter of claim to any potential defendant and interested party.
D. The Letter Before Claim
8. The protocol provides that in good time before making a claim, the claimant should send a letter to the defendant. The purpose of this letter is to identify the issues in dispute and establish whether they can be narrowed, or litigation can be avoided.
9. This letter should contain:
a. The date and details of the decision, act or omission being challenged
b. A clear summary of the factual background, and legal basis for the claim, including a legal framework and then a summary of the grounds of challenge
c. It should also contain the details of any information that the claimant is seeking and an explanation of why this is considered relevant.
d. It should also contain details of the remedy that the claimant is seeking.
e. The details of any person or body who is an Interested Party. An Interested Party is any person directly affected by the claim. They should be sent a copy of the letter before claim for information.
f. A date that a response is due, usually 14 days after the letter was sent if sent before 4pm. It may be possible to argue that the time for a response should be less than 14 days and if so those arguments should be detailed also.
g. Details of the claimant’s legal representative and an address for service.
10. Annex A of the Pre-Action Protocol for Judicial Review contains a suggested format for a letter before claim.
11. The protocol provides that a defendant should normally respond within 14 days of the letter. The letter of response will set out if the claim is being conceded, or if not, set out the response to the claim in clear terms addressing points of dispute.
4 Available at: https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_jrv
12. A claim should not normally be made until the proposed reply date given in the letter before the claim has passed, unless the circumstances of the case require more immediate action to be taken. The reason the claimant should send the letter before claim in good time is to enable a response which can then be taken into account before the time limit for issuing the claim expires, unless there are good reasons why this is not possible.
13. If it is not possible for a defendant to respond within the 14-day timeframe, an interim reply should be sent, and an extension should be requested. Any extension request will not affect the three-month time limit for making a claim for judicial review and the claimant is not bound to accept such a request if it is considered unreasonable. However, if the court considers a claim has been bought prematurely, it may impose sanctions.
14. The protocol provides that where the use of the protocol is appropriate, the court will normally expect all parties to have complied with it in good time before proceedings are issued and may take into account compliance or non-compliance when giving directions for case management of proceedings or when making orders for costs. Compliance with the protocol will not be appropriate in very urgent cases, the protocol details an example being where directions have been set for the claimant’s removal from the UK. The protocol confirms that all claimants will need to satisfy themselves whether they should follow the protocol, depending upon the circumstances of the case.
15. The Parole Board has its own litigation strategy 5 which sets out the steps it will take in relation to any new potential claim. Letters of claim must be sent via post or email to the litigation team and not the Parole Board case manager. The litigation team’s details are as follows:
Litigation@Paroleboard.gov.uk
The Parole Board for England and Wales 3rd Floor 10 South Colonnade London E14 4PU
5 See also the Parole Board’s Litigation Strategy https://assets.publishing.service.gov.uk/media/62865bf18fa8f5561cd9b24c/Legal_Positon_Statement _2021.pdf
16. In all cases concerning a challenge to a decision of the Parole Board, the Secretary of State for Justice will be an interested party. You must ensure that they are sent a copy of the letter of claim. In cases where the Secretary of State has refused to follow a recommendation of the Board to transfer a prisoner to open conditions, it will be a defendant. Letters of claim can be served by email to the Government Legal Departmentby email to: newproceedings@governmentlegal.gov.uk
E. Funding a judicial review claim
17. Legal aid is available for judicial review cases, subject to a means and merits assessment. If the claimant does not meet the means eligibility criteria, a case can be funded privately. It is important to consider that in a privately funded judicial review case the claimant will bear a significant costs risk.
18. Public funding for legal costs in judicial review is available from legal professionals and advice agencies which have a public law contract with the Legal Aid Agency.
19. Annex B of the Pre-Action Protocol for Judicial Review details that public funding may be provided for:
a. Legal Help to provide initial advice and assistance with any legal problem; or b. Legal Representation to allow you to be represented in court if you are taking or defending court proceedings.
20. Legal Help is the funding scheme that usually covers the work under the Pre-Action Protocol for Judicial Review, including drafting the letter of claim and considering the response. The relevant funding form is the Legal Help Form (CW1) and to proceed with the file, this form would need to be completed in full and returned with proof of income, for example with 3 months’ worth of PIES. When opening the matter, not only is it necessary to assess means eligibility but also to complete a sufficient benefit test. This is: whether a reasonable private paying individual of moderate means would pay for the legal advice and assistance.
21. Legal Representation funding is granted on application to the Legal Aid Agency through the Client and Costs Management System (CCMS). If your application is successful, you will be granted a certificate for Civil Legal Aid.
22. Two forms of funding are available: investigative help and full representation. Full representation is usually applied for where the pre-action protocol process has been conducted on a Legal Help file and is provided to represent the claimant in judicial review proceedings and issuing the claim at court, and the litigation and advocacy in the proceedings. An application on CCMS can be made on an emergency basis if the circumstances necessitate this. In prison law cases, it will be necessary for the claimant to complete a Civil Means 1P form, sign declarations against instructions and provide all means evidence. In addition to a means assessment, a CCMS application will also involve a full merits assessment.
23. Judicial review proceedings funded by legal aid cannot be issued until a certificate is granted. If funding is not granted by the Legal Aid Agency, there is an appeal process to ventilate.
24. If investigative help funding is secured for the pre-action protocol process instead of using the Legal Help funding provisions, the Legal Aid certificate will need to be amended into a certificate for full representation ahead of issuing a judicial review claim.
25. When funding is granted, it is usually necessary to promptly instruct a Barrister to prepare the Statement of Facts and Grounds of the claim and to prepare to issue your claim. It is considered good practice to provide a detailed brief to counsel and an indexed bundle of papers.
F. Procedure around bringing a Judicial Review Application
26. Practitioners should consult CPR Part 54, Practice Direction 54A and the 2023 Administrative Court Judicial Review Guide.
27. This part will detail the necessary steps and information regarding:
a. Issuing a JR claim
b. Steps for permission
c. Renewal
d. Directions for substantive hearing
e. Bundles
Commented [A1]: Not necessarily. How do we want to pitch this? ‘Usually’?
G. Issuing the claim
28. JR as a two-stage process. Bringing a judicial review application is a two-stage process. The first stage involves the Claimant obtaining permission to apply for judicial review from the Court. If permission is granted, the second stage involves the substantive determination of the claim.
29. Prior to starting the claim, the practitioners should consider whether the claimant should try to resolve the claim by following the steps set out in the Judicial Review Pre Action-Protocol. Bear in mind, however, that the time spent following the steps in the Protocol would not be likely to justify a failure to bring a claim within the prescribed time limits or a reason to extend time.
30. Time limits. Claims for judicial review must be started promptly and, in any event, not later than 3 months after the grounds for making the claim first arose. While the parties cannot agree on an extension of time between themselves, under CPR 3.1(2), the Court may extend or shorten the time limit even if the time limit has already expired. 6 An application for an extension of the time limit must be set out in section 9 of the Claim Form (Form N461). 7
31. Issuing the Claim Form. A judicial review claim begins by filing a Claim Form in the Administrative Court Office (ACO). The claim is made on the date it is filed. The claimant must apply for permission to apply for judicial review in section 4 of the Claim Form and specify the judicial review remedies sought in section 8. The form must be accompanied by the relevant fee.
32. Serving the Claim Form The claimant must file one copy of the completed Claim Form to be retained by the ACO and an additional copy for each defendant and interested party. These copies will be sealed and returned to the claimant for service on the defendants and interested parties. The sealed copy of the claim form together with a copy of the claim bundle on the defendant(s) and any interested party within 7 days of the claim. If it is not served within 7 days, an application must be made for an extension of time for service. It is crucially important that you confirm with the
7 In considering whether to grant an extension of time the Court will consider all the circumstances, including whether an adequate explanation has been given for the delay, the importance of the issues, the prospects of success and whether an extension will cause substantial hardship or prejudice to the defendant or any other party or be detrimental to good administration.
defendant and any interested party the method of service (email or post), and their correct email address/physical address. A failure to serve the claim form properly may result in a claim for judicial review being struck out.
33. Documents to be filed with the Claim Form. The documents that must be filed either included in the Claim Form or in separate documents, include:
• A statement of the facts and grounds
• Where the claim includes a claim for damages under the Human Rights Act 1998, the claim for damages must be properly pleaded and particularised (in section 4 of the Claim Form or a separate document).
• Any application for an extension of time for filing the Claim Form (in section 9 of the Claim Form or an attached document).
• Any application for directions (in section 9 of the Claim Form or an attached document).
• Written evidence in support of the claim and any other application contained in the Claim Form.
• A copy of any decision letter or order that the claimant challenges in the claim.
• Copies of any documents on which the claimant proposes to rely.
• Copies of any relevant statutory material.
• A list of essential documents for advance reading by the Court, with page references to the passages relied on.
34. The Claim Bundle. The documentation must be provided in an indexed and paginated claim bundle. Both the hard copy and electronic copy bundles must be lodged with the Court unless otherwise requested. Please see below for guidance on the preparation of electronic bundles.
35. Appropriate Venue. The claim should be filed in one of the five ACOs in England and Wales: Birmingham Civil Justice Centre, Cardiff Civil Justice Centre, Leeds Combined Court Centre, Manchester Civil Justice Centre, or the Royal Courts of Justice in London. The claim should be filed in the ACO with the closest connection to the claim.
A claimant may file a claim in a different region from the one with the closest connection, but this decision should be justified in section 4 of the Claim Form.
36. Acknowledgement of Service (AOS). Within 21 days of the service of the Claim Form, the defendant must file and serve an AOS.
37. Reply to AOS. Pursuant to Rule 54.8A, the Claimant may file a reply in response to the AOS. This reply should be filed only if necessary for the Court’s decision to grant permission to apply for judicial review, for instance, if a discrete issue not addressed in the Claim Form is raised in the AOS. A Reply should be as concise as possible and not exceed five pages unless the Court grants permission to exceed this limit. If a Reply is filed unnecessarily, the Court may make any order it considers appropriate, including as to costs.
H. Steps for permission
38. The first stage of permission process is the judge’s review of the claim bundle “on papers”, during which the judge will determine whether to grant permission to apply for judicial review.
39. The test and potential outcomes. The judge will refuse permission to apply for judicial review unless satisfied that there is an arguable ground for judicial review which has a realistic prospect of success.
• Permission granted: The case will proceed to a substantive hearing on all grounds. In this event, the judge will usually give directions for the substantive hearing.
• Permission refused: The judge will record brief reasons in the order for refusing all grounds. The claimant may be ordered to pay the defendant’s costs of preparing the AOS.
• Permission granted in part: The judge will direct the matter to proceed to a substantive hearing only on the grounds for which permission has been granted. The claimant can request that the application for permission on the refused grounds is reconsidered at an oral hearing.
• Permission adjourned to an oral hearing on notice: The judge has made no determination on the application for permission. Instead, the application for permission will be considered at an oral hearing with the claimant and any other parties who wish to make representations attending.
• Permission adjourned to a “rolled-up” hearing: The judge has made no determination on the application for permission. Instead, the application for permission will be considered in Court with the substantive hearing to follow immediately if permission is granted. At the rolled-up hearing, the judge is likely to hear argument on permission and the substance together, and give a single judgment, but the procedure adopted at the hearing is a matter for the judge.
• Application for permission to be resubmitted: The judge has made no determination on the application for permission. Instead, the judge will request the parties perform some act (such as file additional documents or representations) or await some other event (such as the outcome of a similar case). Once the act or event has been performed, or when the time limit for doing so has expired, the papers will be resubmitted to the judge to consider permission on the papers.
40. If the judge considers that the application for permission is totally without merit, meaning that the case is bound to fail, then this will be recorded the claim as being totally without merit. Where a case is certified as totally without merit, there is no right to a renewed oral hearing and the claim is concluded in the Administrative Court, although there is a right of appeal.
I. Renewal Hearing
41. If permission is refused (and where the case is not certified as totally without merit), the claimant has a right to request that the application for permission to apply for judicial review be reconsidered at an oral hearing, often referred as a renewal hearing.
42. To exercise this right, the claimant must complete and send the Form 86b to the ACO within 7 days from the date upon which it is served. A fee is payable. The claimant should also send a copy of Form 86b to any party that filed an AOS. In this form, the Claimant must provide grounds for renewing the application for permission and must in those grounds address why the judges’ reasons for refusal are wrong.
43. The renewal hearing is a public hearing. Time estimate for a renewed application is usually 30 minutes. If a longer listed is needed, the request must be included in the Form.
44. If permission is refused at the renewal hearing, the claim ends, subject to any appeal. If permission is granted, the case proceeds to the substantive hearing.
J. Directions for the substantive hearing
45. Unless the judge orders a particular date for the hearing, the ACO will list the substantive hearing as soon as practicable.
46. Directions by the Judge: When granting permission, a judge will usually give directions as to how the case will progress to the subjective hearing, including:
• Directions for the defendant to file Detailed Grounds of Resistance and any evidence on which it is indeed to rely at the hearing.
• The type of judge who should hear the case.
• Other case management directions including a timetable for skeleton arguments, hearing bundles and authorities bundles to be lodged.
47. Standard directions: If the judge does not make any direction, standard directions apply:
• The Claimant must pay the relevant fee to continue the application, usually within 7 days of permission being granted. Failure to do so will result in a notice for payment sent by the ACO requiring payment within 7 more days. Further failure will result in the claim being struck out without further order.
• Any party wishing to contest or support the claim must file and serve any Detailed Grounds and any written evidence or documents within 35 days of permission being granted.
• The Claimant must file and serve a skeleton argument no less than 21 days before the substantive hearing.
• The defendant and any other party must file and serve a skeleton argument no less than 14 days before the substantive hearing.
• The parties must agree the contents of a paginated and indexed bundle containing all relevant documents. The bundle must be lodged with the court in both electronic and hard copy form not less than 21 days before the date of hearing unless judicial order provides otherwise.
• Regarding legal authorities bundle, this should be agreed and lodged by the parties with the Court in both electronic and hard copy form no later than 7 days before the date of the hearing.
K. Bundles
48. The Court usually requires both hard copy and electronic bundles to be provided, subject to any order to the contrary.
49. A hearing bundle should contain the decision and/or measure challenged in the proceedings, the parties’ pleadings, and any further documents (or their extracts) that the parties consider necessary for the judge’s consideration at the hearing. The bundles should be paginated, indexed, and generally follow a chronological order. Correspondence between the parties should only be included if it is relevant to an issue at dispute before the judge. Where the bundle is over 400 pages, there must be a core bundle and a supplementary bundle.
50. The parties should cooperate in the preparation of an agreed bundle. In the event of a disagreement as to what documents should be included, the complained document should be included, but the nature of the disagreement, e.g. the relevance of admissibility of the document must be marked in the index of documents.
51. Annex 7 of the Administrative Court JR Guide sets out guidance in relation to electronic bundles:
• A bundle must be a single PDF.
• If the bundle is filed in support of an urgent application (i.e., an application made using Form N463) it must not exceed 20mb, and (unless the court requests otherwise) should be filed by email.
• If the papers in support of any claim or appeal or non-urgent application exceed 20mb, the party should file:
a core bundle (no larger than 20mb) including, as a minimum, the Claim Form and Grounds or Notice of Appeal and Grounds, or Application Notice and Grounds; documents regarded as essential to the claim, appeal, or application (for example the decision challenged, the letter before claim and the response, etc.); any witness statements (or primary witness statement) relied on in support of the claim, appeal or application; and a draft of the order the court is asked to make; and
a further bundle containing the remaining documents.
• Bundles should be filed using the Document Upload Centre
• All bundles must be paginated in ascending order from start to finish. The first page of the PDF will be numbered “1”, including the Index pages.
• If a hard copy of the bundle is produced, the pagination on the hard copy must correspond exactly to the pagination of the PDF.
• The index page must be hyperlinked to the corresponding pages
• Each document within the bundle must be identified in the sidebar list of contents/bookmarks, by date and description (e.g., “email 11.9.21 from [x] to [y]”). The sidebar list must also show the bundle page number of the document.
• All bundles must be text based (OCRed), not a scan of a hard copy bundle. If documents within a bundle have been scanned, optical character recognition (OCR) process should be used to turn the document word-searchable.
• Any document in landscape format must be rotated so that it can be read from left to right.
• The default display view size of all pages must always be 100%.
• The resolution on the electronic bundle must be reduced to about 200 to 300dpi to prevent delays whilst scrolling from one page to another.
• If a bundle is to be added to after the document has been filed, it should not be assumed the judge will accept a new replacement bundle because he/she may
already have started to mark up the original. Inquiries should be made of the judge as to what the judge would like to do about it. Absent a particular direction, any pages to be added to the bundle as originally filed should be provided separately, in a separate document, with pages appropriately subnumbered.
52. A useful YouTube guide on preparing an electronic bundle can be found here.
53. To file documents electronically, a request to upload documents should be made by sending an email to the below email addresses. The practitioner will then receive an invitation by email to upload the claim/hearing bundle.
• For cases in the London High Court: DUC@administrativecourtoffice.justice.gov.uk
• For cases in the Birmingham High Court: Birmingham@administrativecourtoffice.justice.gov.uk
• For cases in Wales and the Western Circuit: Cardiff@administrativecourtoffice.justice.gov.uk
• For cases in the Leeds High Court: Leeds@administrativecourtoffice.justice.gov.uk
• For cases in the Manchester High Court: Manchester@administrativecourtoffice.justice.gov.uk
54. The deadline for lodging the hearing bundles may be set in the order granting permission. In the absence of any direction, the hearing bundle must be lodged in hard copy and electronic form not less than 21 days before the hearing. If a bundle is filed late, it is advised to include a letter making clear that the bundle relates to an imminent hearing and the reasons for the delay, so that the bundles are placed before the judge on a timely manner.
