Applications for urgent consideration of judicial review: Key considerations

Urgent judicial review applications are an invaluable legal tool, allowing for swift intervention by the courts in situations where delay could result in irreversible actions that could harm a claimant. However, the Administrative Court has reported it is a tool that "some litigants and practitioners have misused or abused", resulting in unnecessary and unfair delays for those with genuinely urgent applications. In a 2021 Divisional Court judgment, the Court made clear that the urgent procedure must follow the rules "to the letter".¹

Accordingly, it is essential, even during moments of intense time pressure, to give careful consideration to several key issues before proceeding with an urgent application. Otherwise, there is a risk of serious legal consequences, including striking out a party's claim and making an adverse or wasted costs order.

This article explores some of the issues to consider when making an urgent judicial review application.

1. Compliance with the Judicial Review Pre-Action Protocol

Before issuing a judicial review claim, parties must comply with the Judicial Review Pre-action Protocol (the Protocol). The purpose of the Protocol is to serve as a preliminary step for parties to attempt to resolve the dispute without recourse to legal proceedings. The Administrative Court Guide acknowledges that in urgent circumstances, it may not be possible fully to comply with the Protocol. Nevertheless, parties must not use urgency to justify bypassing the Protocol altogether, as the Court may impose costs sanctions, unless it is satisfied that compliance was genuinely not possible due to the urgency of the matter.

Therefore, parties should endeavour to adhere to the Protocol to the extent that they are able to.  Claimants must explain any reasons for failing to comply with the Protocol in the claim form.

2. Establishing genuine urgency

A claimant can only make an application for urgent consideration if the determination it is seeking from the Court is genuinely required within seven days. The urgency must be genuine, and the Administrative Court Guide sets out examples warranting such urgency, including:

• The claimant seeks an interim order preventing a defendant from doing something with irreparable consequences which may be done imminently, or requiring the defendant to do something immediately or within a very short period.
• No interim relief is sought, but there are compelling reasons for applying for abridgment of time for procedural directions, and if the directions are to be effective, it is necessary for the application to be considered urgently.

Most urgent applications should be made to Administrative Court on Monday to Friday between 10am-4:30pm. However, if applications are so urgent they need to be made outside of these hours, they must be directed to the King's Bench Division out of hours judge, who may then deal with the application on paper, or decide to hear the application by telephone and may telephone any other party to the application if appropriate. An out of hours application should only be made in circumstances where the matter cannot wait until the next working day.

3. Duty of candour

All parties to judicial review proceedings must comply with the duty of candour. This requires the claimant to make full disclosure to the Court of any material facts or known impediments to the claim.

This duty applies with particular rigour to applicants for urgent consideration due to the fact such applications are likely to be made on limited notice to the defendant, and accordingly the defendant having likely had only a limited opportunity to respond. Applicants must:

1. disclose any fact whether it supports or undermines the application which is material for the Court to know when dealing with the application;
2. make the Court aware of issues that are likely to arise and the possible difficulties in the application or underlying claim; and
3. present the information in a fair and even-handed manner, and in a way which is not designed simply to promote his/her own case.

Potential consequences for abuse of process: Hamid Jurisdiction

Abusing the urgent consideration process has serious consequences. Hamid jurisdiction of the Court was introduced to prevent abuse of the Court system. It derives from the immigration case of R (Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin), but the Court has confirmed it is not confined to immigration or even public law cases. In this case, the claimant's solicitors failed to provide all the information required by the application form for urgent consideration, Form N463.

In the event a Court notes a possible abuse of its procedures in a case where legal representatives are involved, they may refer the case to a 'Hamid Judge' under the Hamid jurisdiction. The Hamid judge will invite the legal representatives to explain why there should not be a referral to the relevant professional regulator. The court will then decide whether to make the referral and/or consider making a wasted costs order against the legal representative.

The Administrative Court Guide lists examples of previous conduct which has given rise to invoking the Hamid jurisdiction, such as:

• Delaying an urgent application without full disclosure of the facts.²
• Seeking urgent interim relief for a decision made several years earlier.³
• Submitting opaque or insufficiently detailed applications.⁴
• Applying for interim relief when the circumstances have already changed without informing the court.⁵

Concluding thoughts

Urgent judicial review applications can be a crucial remedy for claimants. However, they require thorough consideration and strict adherence to the steps set out in the Administrative Court Guide to ensure the integrity of the process and to avoid adverse consequences.

If you would like to know more about how we can assist with judicial review applications, please contact a member of the firm's Politics and Law Group.