Commentary on Sections Judicial review in the High Court and Upper Tribunal Section 84: Likelihood of substantially different outcome for applicant
631.Section 84 amends section 31 of the Senior Courts Act 1981 (“the 1981 Act”), which sets out the remedies available on judicial review and the requirement to get permission to proceed to judicial review. The amendments require the High Court to refuse a remedy or permission on an application for judicial review if it considers it highly likely that the defendant’s conduct in the matter in question would not have affected the outcome for the applicant. Section 84 also amends sections 15 and 16 of the Tribunals, Courts and Enforcement Act 2007 to make similar provision for the Upper Tribunal when it is operating in England and Wales. Section 15 makes provision for the Upper Tribunal’s “judicial review” jurisdiction.
632.Subsection (1) inserts new subsections (2A), (2B) and (2C) into section 31 of the 1981 Act. New subsection (2A) provides that, subject to new subsections (2B) and (2C), the High Court (a) must refuse to grant a remedy, and (b) may not award damages on an application for judicial review, where it considers it highly likely that the outcome for the applicant would have been substantially the same had the conduct complained of not occurred. For example, a public authority might fail to notify a person of the existence of a consultation where they should have, and that person does not provide a response where they otherwise might have. If that person’s likely arguments had been raised by others, and the public authority had taken a decision properly in the light of those arguments, then the court might conclude that the failure was highly unlikely to have affected the outcome. If it did, unless new subsection (2B) applied, new subsection (2A) would mean the court could not grant a remedy, and so the original decision would stand (in the absence of other challenges or factors).
633.New subsection (2B) provides that the court may grant a remedy or an award of damages on an application for judicial review, despite new subsection (2A), where the court considers it appropriate to do so for reasons of exceptional public interest. Where the court applies new subsection (2B) and grants a remedy or an award of damages, new subsection (2C) requires the judge to certify that the condition in new subsection (2B) is satisfied.
634.Subsection (2) inserts new subsections (3C), (3D), (3E) and (3F) into section 31 of the 1981 Act. These new subsections will apply to a consideration of whether to grant permission to make an application for judicial review.
635.New subsection (3C) provides that the High Court may of its own motion (without a party requesting it to) or must, on the application of the defendant, consider whether the conduct complained of would have made a substantial difference to the outcome for the applicant when considering whether to grant permission to make an application for judicial review. If it considers it highly unlikely that there would have been any substantial difference to the outcome, new subsection (3D) requires the High Court to refuse permission save where new subsection (3E) applies.
636.New subsection (3E) provides that the court may grant permission on an application for permission, despite new subsection (3D), where the court considers it appropriate to do so for reasons of exceptional public interest. Where the court applies new subsection (3E) and grants permission, new subsection (3F) requires the judge to certify that the condition in new subsection (3E) is satisfied.
637.Subsection (3) inserts new subsection (8) into section 31 of the 1981 Act which provides the meaning of the words “the conduct complained of” which are used in new subsections (2A) and (3C). Broadly, the conduct complained of will be the ground(s) for the judicial review. In the example above (concerning the consultation), the conduct complained of would be the failure to notify the individual.
638.Subsections (4), (5) and (6) make parallel provision to subsections (1), (2) and (3) for judicial reviews arising under the law of England and Wales in the Upper Tribunal by amending sections 15 and 16 of the Tribunals, Courts and Enforcement Act 2007.