This Practice Note has been written by Anne Redston, Barrister. It is her personal view; she is not authorised to speak for the Tribunals Service or the judiciary. This Practice Note considers judicial review (JR) in the context of tax. This Practice Note explains: • what JR is • the scope of JR • how and when the judiciary can review: ◦ tax legislation, or ◦ actions or decisions taken by HMRC • who can initiate JR proceedings • the procedure applicable to JR, and • the remedies available It deals only with JR in the Administrative Chamber of the Chancery Division of the High Court, although it also refers to some decisions of higher courts. In this Practice Note, unless otherwise specified, ‘court’ means the Administrative Chamber of the High Court. The extent to which the Upper Tribunal (UT) has JR powers when making a decision is discussed in Practice Note: Judicial review in tax cases at the Upper Tribunal. That Practice Note also outlines the

This Practice Note has been written by Anne Redston, Barrister. It is her personal view; she is not authorised to speak for the Tribunals Service or the judiciary. Most judicial review (JR) claims relating to tax matters must be made to the Administrative Chamber of the Chancery Division of the High Court. Some can be made directly to the Upper Tribunal (Tax and Chancery Chamber). JR claims in tax matters which are made to the High Court are discussed in Practice Note: Judicial review in tax cases at the High Court. This Practice Note discusses: • JR claims which can be made directly to the Upper Tribunal (UT) • JR claims that must be transferred from the High Court to the UT and those that may be transferred to the UT, and • the procedure in JR applications made to the UT The extent to which the First-tier Tax Tribunal (FTT) has a JR jurisdiction is discussed in Practice Note: The jurisdiction of the First-tier Tax Tribunal (FTT), together with practical

This Practice Note refers to a number of administrative law cases to illustrate the types of judicial review claims that are typically brought in the GB energy sector. For a summary of key energy law cases since 2021, including but not limited to judicial review claims, see: Energy cases tracker. Which bodies in the GB energy sector are amenable to judicial review? It is not the case that an application for judicial review may only be brought against a public authority. Where other bodies are exercising public law functions, they may also be susceptible to judicial review in respect of those functions. This applies to some of the main bodies in the GB energy sector. The two broad questions the Administrative Court (a part of the King’s Bench Division of the High Court) will consider when deciding whether a function of an energy body is amenable to judicial review are: • whether the source of the function is statutory or prerogative powers, and • if not, whether the function has a sufficiently ‘public law flavour’ 1.

The Tribunals, Courts and Enforcement Act 2007 (TCEA 2007) established the First-tier Tribunal (FTT) and the Upper Tribunal (UT). The Tribunal Service was created following Sir Andrew Leggatt's report:Tribunals for Users: One system, One Service. The system was designed to address the problems associated with the previous service, namely old-fashioned and inefficient processes, which were difficult to navigate. The UT has three roles: • a tribunal of first instance for certain matters, including land and tax matters • a statutory judicial review jurisdiction, and • an appellate body for certain appeals from the FTT The UT’s judicial review jurisdiction has gradually expanded and now includes most immigration judicial review matters. It is thought that the UT’s jurisdiction was widened in this way to relieve some of the pressure on the Administrative Court. Cases that must be commenced in the UT TCEA 2007, ss 15–21 establish the UT's judicial review jurisdiction. Provided certain conditions are met, the UT will consider those classes of application that have been prescribed by

ARCHIVED: This Practice Note was archived and is not maintained. For a maintained introduction to judicial review, see: Judicial review—overview What is judicial review? A claim for judicial review means a claim to review the lawfulness of an enactment or a decision, action or failure to act in relation to the exercise of a public function (CPR 54.1). Judicial review is therefore the process by which the courts exercise a supervisory jurisdiction over proceedings and decisions of inferior courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who are charged with the performance of public acts and duties. Judicial review is an equitable remedy which allows individuals to challenge or address decision-making authorities who exceed their powers, commit an error of law, commit a breach of the rules of natural justice, reach a decision which no reasonable tribunal could have reached or abuse their power. There are, in summary, three grounds of challenge: • illegality • irrationality (or unreasonableness to a specific degree) • procedural impropriety You may find

Energy analysis: Three environmental campaigners under the banner 'Paid to Pollute' were given leave in July 2021 to bring a judicial review challenge to the OGA Strategy. After a full hearing in December 2021, on 18 January 2022, Mrs Justice Cockerill handed down her judgment, which dismissed the application on all grounds. Written in collaboration with Judith Aldersey-Williams, and and Valerie Allan, both partners, at CMS.

Pensions analysis: The Administrative Court dismissed the claims of three investors challenging the lawfulness of decisions, made on 20 June 2023 and 20 July 2023 by the Financial Services Compensation Scheme (FSCS), not to decide their appeals and to treat their compensation claims as closed. The claimants had claimed they lost money after being advised by an unregulated adviser to transfer funds from their occupational pension schemes into a SIPP (a self-invested personal pension) provided by a regulated pension provider in order to invest in what proved to be a high-risk fund. In each case, the FSCS upheld the investor’s claim and paid compensation in accordance with its then understanding of the law. A few weeks later, that understanding changed following the judgment of the Court of Appeal in Adams v Options UK Personal Pensions LLP. The claimants lodged appeals claiming additional compensation in light of Adams, but the FSCS declined to consider them. Written by Scott Redpath, barrister at Exchange Chambers.

Challenging by way of a claim to review the lawfulness (judicial review) of those decisions of the Secretary of State and immigration officers in immigration and asylum cases that do not constitute appealable 'immigration decisions'; also such challenges to certain decisions of the Immigration and Asylum Chambers of the First-tier and Upper Tribunals.

Administrative court review of criminal proceedings Judicial review is a process by which the courts exercise a supervisory jurisdiction over the exercise of public functions by public bodies. Proceedings normally take place in the Administrative Court, which is part of the King’s Bench Division (KBD) of the High Court. For more information, see: Judicial review in criminal proceedings—overview. Judicial review of a decision of the magistrates' court An application to judicially review a decision of the magistrates’ court may be made to the Administrative Court in the KBD of the High Court. An application for review can be made of a decision to prosecute or not to prosecute, among other decisions, see Practice Note: Judicial review of prosecution decisions. The most common grounds for review are: • an error of law • the court has acted in excess of jurisdiction • there has been a breach of natural justice, for example where there have been procedural irregularities or where there has been a suspicion of bias • the decision of

Judicial review is the process by which the lawfulness of the decisions, acts or omissions of public bodies are challenged in the High Court. For information on judicial review proceedings generally, see Practice Notes: Judicial review—what it is and when it can be used—Preliminary and pre-action considerations, Judicial review—time limits and the pre-action protocol and Judicial review—how to start proceedings. For information on the judicial review of decisions made by the criminal courts, see Practice Note: Judicial review of magistrates' court and Crown Court decisions. Judicial review is not concerned with reviewing the merits of a decision but rather the decision-making process itself. It is a discretionary remedy. The High Court will only exercise its jurisdiction when it is proper to do so and it may decline to do so where there is an alternative remedy. Judicial reviews of a decision to prosecute are therefore rare because the defendant in criminal proceedings usually has the ability challenge a prosecutorial decision via other means at trial, for example by arguing that the bringing of the prosecution

Planning analysis: In Bain v Secretary of State for Transport, the High Court dismissed a challenge to a development consent order for a road scheme. It followed an earlier successful challenge to the original decision to grant the A38 Derby Junctions Development Consent Order in 2021. The court found that whether there was an obligation on the decision maker to require an updated economic assessment of the scheme when redetermining the application was a matter of planning judgment for the decision maker and the Secretary of State’s consideration of the issue was sound. Written by Mark Westmoreland Smith, kings counsel at Francis Taylor Building.

Local Government analysis: The claimants sought judicial review of the Mayor’s decision to confirm the expansion of the London Ultra Low Emission Zone (‘ULEZ’). The claim was brought on three grounds. Firstly, that the expansion could only be approved as a new charging scheme rather than as a variation of the existing scheme. In addition, they argued that it was also unlawful because it did not include a ten-year plan for how the proceeds of the charge would be applied. Secondly, they argued that TfL’s consultation in relation to the order was unlawful because it failed to provide sufficient (or sufficiently clear) information about the estimate of the proportion of vehicles likely to comply with the ULEZ emission requirements in the ULEZ expansion area and the distribution of ANPR cameras on TfL’s network. Thirdly, they argued that the Mayor had failed to consider whether eligibility to apply under the scrappage scheme should extend to those living outside the Greater London Authority area and had failed to properly appreciate the extent to which that might go to mitigate the consequences of the ULEZ expansion. The claim was dismissed. Written by John Hunter, barrister, Kings Chambers.