Financial services and judicial review
Produced in partnership with Orrick, Herrington & Sutcliffe (Europe) LLP
Financial services and judicial review

The following Financial Services guidance note Produced in partnership with Orrick, Herrington & Sutcliffe (Europe) LLP provides comprehensive and up to date legal information covering:

  • Financial services and judicial review
  • The evolution of judicial review cases within the financial services sector
  • The Emptage case
  • R(C) v FSA
  • Other recent cases relating to judicial review and the financial sector
  • The future for judicial review within the financial services sector

The evolution of judicial review cases within the financial services sector

Judicial review is the procedure by which courts in England and Wales examine the decisions of government ministers and departments, industry regulators, local authorities and public bodies to ensure that they act lawfully and fairly. In deciding whether a particular body is a 'public body' for the purposes of judicial review, the court considers the functions that it performs and whether those functions have public law consequences.

The court conducts a review of the process by which a public body has reached a decision to assess whether it was validly made. The court’s authority to do this derives from statute, but the principles of judicial review are based on case law which is continually evolving. The number of judicial review claims increased from 160 cases in 1975 to 11,200 in 2011 but, after peaking in or around 2013, it has since declined to 3,600 judicial review claims in 2018. A court may refuse permission to bring a claim for judicial review if an alternative remedy has not been pursued. Judicial review is a remedy of last resort.

Currently, the grounds for judicial review of a decision made by a public body can be categorised under four heads:

  1. illegality

  2. irrationality (the so called 'Wednesbury unreasonableness')

  3. procedural unfairness, and

  4. legitimate expectation

In 2012,