Navigating commercial judicial review: introducing our blog series on challenging government decisions

In this article, the first in a special mini-series, Fieldfisher's tier 1 ranked Public law team will outline a few hot topics for claimants in commercial judicial review cases, including:

• how to challenge consultation processes
• what to do when new primary legislation is threatening to negatively impact on your business
• the interplay between national security and judicial review; and
• some interesting recent case law developments on the duty of candour and the availability of exemplary damages awarded against a public authority.

This series will be particularly relevant to in-house lawyers operating in highly regulated sectors such as healthcare and life sciences, financial services, or sport and technology, where the business is regularly interacting with regulators and public authorities.  It will inevitably also be useful for lawyers acting for public authorities and seeking to strengthen their decision making against challenge.  

When should organisations reach out for advice on bringing a judicial review challenge?

There are some key "touch points" when potential claimants should consider engaging with public law experts, including:

1. The announcement of a consultation, particularly where the consultation documentation is lacking, inadequate time has been given to respond, or the outcome of the consultation appears to be pre-determined;
2. The announcement of proposed legislative reform, introduction of a Bill or passing of an Act, particularly where the reform would lead to the expropriation of assets;
3. Where a decision has been made by a public body, or a new plan or policy published, which the you consider this to be irrational, ultra vires, or introduced contrary to proper procedure;
4. Where an industry regulator has made a finding or decision, or taken other regulatory action, which appears to be unreasonable or unfair.

There are strict time limits for bringing a judicial review claim ("promptly" and in any event within three months). Therefore, if you are interested in exploring public law options, we would suggest seeking advice as soon as possible.

Challenging consultation processes

One of the areas where we are increasingly assisting claimants is in relation to challenging government consultation processes.

There are five key requirements that must be met for a public law consultation to be considered fair.  If a government consultation fails to meet one of these criteria it may be possible for a claimant to bring a judicial review to challenge the consultation: 

1. The consultation must be conducted at a time when the proposals are still at a formative stage;
2. The public body must give sufficient reasons for any proposal in the consultation, to ensure consultees can offer intelligent consideration and responses;
3. The public body must comply with its own guidance which explains how it will conduct a consultation, unless there are exceptional reasons to depart from the guidance;
4. Adequate time must be given to consultees for consideration and to provide responses; and
5. Consultation responses must be conscientiously taken into account by the public body decision maker in reaching its decision.

Our next blog in this series will look more closely at what it really means for government to give consultees adequate time and sufficient reasons, including:

• How to determine if a consultation period is reasonable.
• Factors to take into account when deciding whether adequate time has been given.

• Whether the consultation document (and any other supporting documents) are detailed enough to enable stakeholders to effectively engage in the consultation.
• Whether clear criteria have been identified by which the public body will be assessing any consultation responses.

After reading our blog series, in-house lawyers will be able to work out whether to bring a challenge to a policy or public decision relating to consultations that affect their business.

What can claimants achieve from a successful commercial judicial review challenge?

There are a number of benefits to claimants who successfully bring a judicial review challenge. A successful claimant may be able to achieve any of the following outcomes:

In relation to a consultation:

• Force a public body to amend or update its consultation documents.
• Secure publication of additional documents in relation to a consultation, including impact assessments.
• More time to respond to a consultation if adequate time has not been given.
• In some cases, a wholesale re-do of the consultation process if the first consultation is insufficient or otherwise lacking.  

In relation to a substantive decision:  

• Delay of the implementation of a new policy.
• A change to, or abandonment of, a new policy.
• More targeted engagement with a defendant public authority.  
• Positive, or at least more balanced, media coverage for the claimant.  
• Occasionally, compensation if a claimant's human rights have been breached by a public authority.
• An opportunity to have a meaningful say on matters of importance not just relating to your business but also your industry.

How claimants can best use the duty of candour

One tool that can be particularly helpful to claimants in commercial judicial review cases is the obligation on the defendant public body to candidly disclose information relating to the decision during the course of the litigation.  This is known as the duty of candour.

Recent case law developments regarding the duty of candour mean that defendants must be very careful in applying redactions to documents disclosed in judicial review. The courts have recently rejected the redaction of junior civil servant names, a practice regularly adopted by defendants that must now be limited. There will be only very narrow circumstances where redaction of documents is justified, namely where it would be harmful to a third party or would lead to a disproportionate amount of disclosure.  Additionally, the parties to a judicial review cannot "contract out" of their disclosure obligations, for example by seeking to agree a consent order redacting certain parts of documents.

In our final blog in this series we will take a deep dive into recent cases regarding the duty of candour and disclosure obligations in judicial review cases.