What is pre-action conduct?
Before making a claim for judicial review, it is important that you follow the rules for pre-action conduct, this refers to the actions that you should take before you make your claim. The Pre-Action Protocol, which is contained in the Civil Procedure Rules, lays out a code of best practice and the steps that you should follow prior to seeking judicial review.
The pre-action protocol has 5 aims, they include:
- To understand and identify the issues you are disputing in your claim and to share information and relevant documents
- To make informed decisions about whether to proceed and how to do this
- To attempt to settle the dispute without legal proceedings or to reduce the issues you are disputing
- To keep down the cost of resolving your dispute by avoiding unnecessary expenses
- To support the efficient management of proceedings where legal action cannot be avoided
If you fail to follow the steps outlined in the pre-action protocol then this will be taken into account during the Upper Tribunal hearing that may follow. If you lose your case you may be ordered to pay additional costs for not following the pre-action protocol and if you win your case and you are awarded costs then this amount may be reduced because you have not followed pre-action protocol. There are also other sanctions that could come as a result of your failure to comply with the protocol.
What is judicial review?
Judicial review is a procedure that can be used to challenge the lawfulness of an act, decision or failure to act of a public body that is exercising a public function.
In the field of immigration law, judicial review refers to the process of legally challenging the way that a decision has been made in your immigration, asylum or human rights-based application. Usually, judicial review is used in immigration cases to challenge a decision that has been made by the Home Office, although it can also be used to challenge a decision made by the First-Tier Tribunal. Most asylum and immigration judicial reviews in England and Wales are heard in the Upper Tribunal, however, in Scotland, they are heard in the Outer House of the Court of Session and in Northern Ireland, they are heard at the High Court in Belfast.
Judicial review is different from an appeal or Administrative Review it does not determine whether the decision on your case is right or wrong, but rather how the decision was reached and whether that process was lawful.
The judicial review procedure is complex and it is important that you follow pre-action conduct correctly before you seek permission for judicial review. Below are the steps outlined under the pre-action protocol.
Finding an Alternative Dispute Resolution
According to the pre-action protocol, judicial review should only be used as a last resort when there is no alternative remedy. This is why the first step set out in the pre-action protocol is to try to find an alternative dispute resolution (ADR).
Both claimants and defendants could be asked by the court to provide evidence that they have attempted alternative ways of resolving disputes.
The pre-action protocol does not outline all of the methods that may be used when attempting to find an ADR but it does offer some guidance on options that may be appropriate if applicable to the circumstances, they include:
- Discussion and negotiation
- Using internal public authority complaints or review procedures
It’s important to note that an application for judicial review should be started no later than 3 months after the grounds for a claim first arose and that exploring alternative dispute resolutions cannot be used as an excuse for failure to meet this time limit.
Requests for pre-action information and documents
The next part of the pre-action protocol covers your right to request information and documents prior to the judicial review. It states that claimants can request that the defendant provides them with information and documents for the purpose of being able to gain understanding as to why the decision they are challenging was taken or to be able to identify the issues that they are making a complaint about.
Any requests for information must be proportionate and only for the purposes outlined above. The defendant must comply with requests for information providing that they meet these requirements unless there is a good reason for not doing so.
If the defendant fails to provide relevant information or documents then the court may impose cost sanctions against them.
Letter before the claim
The next pre-action conduct that you will need to perform is to send a letter to the defendant. This letter, known as the letter before the claim or the letter of claim, should be sent in good time before making a claim and must identify the dispute so that it can be established whether taking legal action can be avoided.
For immigration, nationality and asylum cases there is a form available that you can fill in instead of sending a letter of claim to the Home Office. The form will ask you to provide the following:
- Information about yourself including your name, date of birth etc.
- Information about your legal representative
- Your case reference numbers
- The type of claim you are making
- Information about the substance of your claim including the matter of the challenge, the issue and the action you would like the Home Office to take
- Details of any information or documents you are requesting from the Home Office
- Details of alternative dispute resolution proposals you have
- Your proposed reply date, you should usually give 14 days for this
You are not required to use the Home Office’s standardised form and you can instead send your own letter of claim to the Home Office. It is highly recommended that you seek the assistance of an immigration professional with your letter of claim as the letter must provide all of the information outlined in the pre-action protocol.
The letter of response
The pre-action protocol states that the Home Office should usually respond to your letter within 14 days. If they fail to do this, this will be taken into account and sanctions could be imposed unless there are good reasons for them not issuing a response in time.
The letter of response should state whether they have conceded, conceded in part or denied your claim.
If the Home Office cannot reply within the proposed response time then they should give an interim response and should propose an extension on this time, give a date for their response and outline why they require an extension.
If the Home Office fails to respond to you within the 14 days, or if you are not satisfied with the response that they give you then you can seek a judicial review by submitting an application to the Upper Tribunal (Immigration and Asylum) Chamber.
It is not necessary to follow the pre-action protocol in urgent cases. If your case is urgent then you should make your claim for judicial review immediately. Urgent cases can include:
- If the claimant is facing removal from the UK
- If 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
- If a local housing authority has failed to secure interim accommodation for a claimant who is homeless
Despite the fact that urgent cases are not obliged to follow the pre-action conduct outlined in the protocol you will still be expected to notify the defendant prior to starting court action. You can do this by altering the defendant by telephone and emailing or faxing a draft of the claim form that you intend to use.
How can IAS help?
When it comes to immigration issues surrounding judicial review it is highly recommended that you see the assistance of a legal expert. This is because both the judicial review process and the pre-action protocol that comes before it can be incredibly difficult to navigate alone.
Here at IAS, our immigration lawyers are experts in judicial review issues and due to their extensive immigration training our team will be able to help you even if you have a very complex case.
Our lawyers 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 protocol applies to your case.
For more information about how we can help you with pre-action protocols, contact us today on 0333 305 9375.
Last modified on July 17th, 2023 at 6:07 am
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The pre-action protocol is part of the Civil Procedure Rules and outlines the steps that both claimants and defendants are expected to take prior to a judicial review.
The key elements of the pre-action protocol for judicial review include:
- Attempting to find an alternative dispute resolution
- Requesting and providing information and documents
- Sending a letter before the claim
- Receiving/sending a letter of response
The court will expect parties to have complied with the pre-action protocol for judicial review, if either the defendant or claimant has failed to do so then this will be taken into consideration and sanctions may be imposed at a later stage in the proceedings.