USA and the UK
- What is pre-action conduct?
- What is judicial review?
- What is the aim of Pre-action protocols?
- Compliance with the Protocol
- Finding an alternative dispute resolution
- Requests for information and documents at the pre-action stage
- Sending a letter before claim
- Defendant’s letter of response
- Urgent Cases
What is pre-action conduct?
If you have received a decision from the UK courts that you can not appeal, you may choose to challenge that decision via making a claim for judicial review. Before you make a claim for judicial review, however, you must first follow the rules for pre-action conduct. The rules for pre-action protocols that you must follow before seeking judicial review are outlined in the Civil Procedure Rules (CPR).
Before a claim for judicial review is made, the claimant must first send a ‘letter before claim’ or ‘letter before action’ to the other party (aka, the Defendant). This letter should outline the key facts of the case and the reason for it being challenged. This letter will give the Defendant a chance to be notified and amend the decision if they choose to do so and avoid court proceedings.
The UK courts expect parties to comply with pre-action protocols. Failure to comply with protocol may result in punitive charges against the non-compliant party.
What is judicial review?
Judicial review is usually the last resort taken by a claimant who would like to challenge the lawfulness of a decision, act, or failure to act of a public body. A public body can be defined as any entity whose performing functions are public in nature.
Claims for judicial reviews are not about whether a policy or a decision is right or wrong (which is a matter of opinion) but if it was properly applied and the process was lawful (accordingly to the law). They are usually made when there is no other adequate alternative remedy available such as a right of appeal.
Claims for judicial review concerning immigration, asylum, or a human rights-based application are usually made against the Home Office, although there are some cases where a claim is filed to challenge a decision from the First-Tier Tribunal.
What is the aim of Pre-action protocols?
Pre-action protocols are an important parent of the Civil Procedure Rules whose aim is resolving disputes between the parties before any action is taken in court proceedings. Pre-action protocols aim to accomplish the following:
- To help both parties understand and identify the issues that are being disputed in the claim by the of share information and relevant documents
- To encourage both parties to make informed decisions about whether or not to proceed with their claim and if so, how to proceed
- To encourage an early settlement of the dispute or to reduce the issues that are being disputed
- To avoid unnecessary costs by resolving the dispute outside of the UK court system
- To support the efficient management of proceedings where legal action cannot be avoided
Compliance with the Protocol
The court expects both parties to comply with the relevant protocol in the allotted time before starting court action. An exception to this rule is if there is a case where this process is skipped because the case is urgent enough to be deemed appropriate for an issue of application without delay.
Non-compliance with pre-action protocols is taken into consideration by the courts in any proceedings that may follow and can be used against you. If a party has been found to be in non-compliance, they may be ordered to pay additional costs or be denied some or all interest from their reward.
Finding an alternative dispute resolution
The courts believe that it is in everyone’s interest that litigation should be the last resort to a dispute. Therefore, before any party proceeds to file a claim for judicial review, both parties should first consider finding a solution via alternative dispute resolution (ADR).
Both parties may be asked by the court to provide evidence they have attempted alternative ways of resolving a dispute. Pre-action protocols do not definitively outline all of the methods to be used when attempting to find an alternative remedy. However, it does provide some guidance on appropriate options which may include:
- Discussion and negotiation
- Using relevant public authority complaints or review procedures
How a dispute is resolved once again depends on the circumstances of the case. However, it is important to note that exploring alternative dispute resolution does not impact the 3-month time limit for filing judicial claims. Again, if a party chooses not to participate in ADR that could be considered unreasonable by the court and could lead to a judgment where the non-compliant party could be asked to pay additional court costs.
Requests for information and documents at the pre-action stage
Pre-action protocols also state that the claimant has the right to request information and documents prior to judicial review. This is an important part of the process that helps the claimant gain understanding as to why the decision that they are challenging was taken. It also helps to better identify the issues to which they are making a complaint.
Requests for information and documents made at this part of the pre-action stage should be proportionate and limited to what is properly necessary for the claimant in understanding why the challenged decision was taken and is presented in a manner that will properly identify the issues. Unless there is a good reason not to do so, the Defendant must comply with these requests for information on the condition that they meet these requirements.
If the Defendant is found to not have provided the relevant information or documents, the court may impose costs sanctions against them, especially if their failure to provide is a breach of a statutory or common law requirement.
Sending a letter before claim
If you, the claimant, decide that you want to go forward with pursuing a judicial review, you must first notify the proposed Defendant whose decision you are contesting that you are seeking judicial review. To do this you must send a “pre-action letter” or “letter before claim”. The goal of this letter before the claim is to identify the issues in dispute, establish whether or not they can be altered and if litigation can be avoided. At this stage, proposed Defendant will be given the opportunity to either reconsider or withdraw their original decision.
The claimant must notify the Defendant via a “pre-action letter” or “letter before claim”. The letter must conform to the standard form and contain the following:
- The date and details of the decision
- The act or omission being challenged
- A clear summary of the facts and the legal basis for the claim
- Details of any information which the claimant is seeking and why it is relevant to the claim
- Details of the interested party who is bringing the claim
- A Request for a response from Defendant within a reasonable proposed time limit (this is usually 14 days)
Defendant’s letter of response
The Defendant should normally respond to the claimant’s letter in good time, which is normally with 14 days. The Defendant will need to use the standard form of response. If the Defendant can not respond to the claimant within good time, the defendant will need to send an interim reply along with a suggested reasonable extension date. If the Defendant is seeking an extension, they will need to provide a reason and if needed, a request for additional information. This request will not affect the time limit for making a case for judicial review.
If the Defendant decides to concede to the claim, concede party or not at all, then the Defendant will need to reply with their decision clearly and in unambiguous terms.
If the Defendant’s response contains a new decision, it should be clearly identified what is and what is not being conceded in the claim as well as a clean timescale for when the new decision will be issued. In addition, the Defendant will need to provide a full explanation for the decision, address any points of dispute along with an explanation as to why they can not be addressed, and include any relevant documentation requested by the claimant. If the documentation can not be provided, the Defendant must explain the reason why they are not enclosed with the response.
If there is an urgent case that requires a claim to be made for judicial review, then pre-action protocols are not needed. Examples of urgent cases are:
- If you would like to apply for an injunction to stop your imminent removal
- There is an urgent need for an interim order to force a public body to act where it has refused to do so in an unlawful way
Although urgent cases are not obligated to follow the pre-action protocols, the claimant must still notify the other party before starting a court action. This can be done by notifying the Defendant by telephone then sending a draft of the claim form that you intend to use either by email or fax.
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A majority of the claims for judicial review often do not make it past the permission stage. Most claims are dismissed, withdrawn, or reached a settlement out of court. If a court case reaches the High Court for a full judicial review hearing, the public body whose decision was under challenge won 50% of the time and only lost 40%. The other cases were mostly withdrawn or have not yet reached a conclusion.
Judicial review can be complicated and incur a lot of legal costs. Therefore, it is always recommended that both parties abide by the Civic Procedure Rules before pursuing any court action in order to come to a resolution or settlement that benefits both parties.
Judicial review and the pre-action protocols leading up to it and be a very complicated action to undertake. Therefore, it is highly recommended that if you pursue judicial review, you also seek the assistance of an experienced attorney.
Our immigration lawyers at IAS are experienced experts in judicial review issues and are able to help you even if you have a very complex case.
Our attorneys can explain the pre-action protocol process and will ensure your compliance with the protocol and all of its necessary steps. Just a few of the ways that we can assist you include:
- Answering any questions you may have about pre-action protocols
- Helping you to request information and documents from the Home Office
- Preparing and sending your letter of claim for you
- Liaising with the Home Office on your behalf to find out whether there are other ways that the dispute can be resolved
- Preparing your application for judicial review permission (if litigation is unavoidable)
If you think your case may be urgent then our lawyers can also advise you about whether the pre-action protocol applies to your case.
For more information about how we can help you contact us today at +1 844 290 6312.