Pre-Action Protocol for Judicial Review

Author:Mr Andrew Lidbetter
Profession:Herbert Smith


The pre-action Protocol for judicial review came into force on Monday 4th March 2002. To an extent it simply places into the framework of the Civil Procedure Rules what is already good practice; a letter before claim from the Claimant and a response from the Defendant with potential costs consequences for failing to do so. However, the position has now been formalised.

When the Protocol Applies

The Protocol sets out the parameters for when a judicial review claim is suitable. It highlights the need for other alternatives to judicial review to have been used prior to commencing proceedings (paragraphs 2 and 3). Concern was expressed prior to the introduction of the Protocol as to the potential clash between, on the one hand, the existing time limit in judicial review proceedings under Rule 54.5(1) of the Civil Procedure Rules and on the other hand, the need to send out a letter before claim and await a letter of response from the Defendant. The time limit in CPR 54.5(1) requiring Claimants to file their claim form promptly and in any event not later than 3 months after the grounds to make the claim first arose has not been changed and indeed it is expressly provided in the opening paragraph of the introduction that the Protocol does not affect the time limit.

The Protocol states that all Claimants will need to satisfy themselves whether they should follow the Protocol depending on the circumstances of his or her case (paragraph 7). However, where judicial review is appropriate the Court will normally expect all parties to have complied with the Protocol and will take into account compliance and non-compliance when giving directions for case management of proceedings or when making orders for costs (paragraph 7).

However the Protocol does specify that it will not be appropriate to comply with its requirements where the case is urgent or where there is an urgent need for an interim order to compel a public body to act where it has unlawfully refused to do so (paragraph 6). The Protocol will also not be appropriate where the Defendant does not have the legal power to change the decision being challenged (paragraph 6).

What the Protocol Requires

Claimant's Letter Before Claims

Claimants must send a letter to the Defendant in order to identify the issues in dispute and establish whether litigation can be avoided (paragraph 8). The Protocol sets out the information which should be included (paragraphs 10 and 11)...

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