Judicial Review and Covid-19: challenging unlawful decisions

2nd July 2020 Commercial Litigation

This week we have been awaiting an announcement from the Government regarding “air bridges” to find out whether the current 14 day quarantine for passengers arriving in UK airports will be lifted.

Perhaps the most eager to hear the announcement will be British Airways, EasyJet and Ryanair. It was recently reported that all three airlines had issued court proceedings to challenge the 14 day quarantine introduced in early June.

The airlines reportedly sent a pre-action letter to the government the same week that the quarantine rules came into force, and issued proceedings the week after. Their challenge is reportedly based on various grounds including: that there was no consultation process conducted on the 14 day quarantine policy; the rules for passengers arriving in the UK are more stringent than those for people who have been diagnosed with Covid; and the restrictions apply to passengers arriving from countries with lower infection rates than in the UK.

Airlines are not the only ones seeking to challenge recent decisions by way of judicial review. A member of the public has also issued proceedings for an urgent judicial review of the Director of Public Prosecutions’ decision not to investigate Dominic Cummings for his alleged lockdown breaches. The grounds for judicial review in that case reportedly refer to there being a lack of independence in the decision-making of the DPP, and allegedly cites the Attorney General indicating her support of Dominic Cummings over Twitter.

There have been further examples of judicial review regarding decisions surrounding personal protective equipment (PPE). In May, for example, the Doctors’ Association UK reportedly commenced judicial review proceedings to challenge the decision of the government to refuse to order an independent investigation into PPE shortages during the pandemic.

In another case, judicial review proceedings were issued regarding a decision to grant a government contract for the provision of PPE to health workers. The contract is allegedly worth £108 million and was granted to a pest-control company. Campaigners are challenging the decision on the basis that only one bidder competed for the contract, and is seeking an explanation from the government on where and how the contract was advertised.

Public bodies have had to make some rather extraordinary decisions in the last few months as a result of Covid-19. The impact of many of these decisions has been drastic and wide reaching. The circumstances have meant that decisions have had to be made quickly, and the usual processes for decision-making have often been abandoned completely or at the very least streamlined for the sake of speed.

A good example of this are the NHS Nightingale Hospitals. The seven temporary critical care hospitals were commissioned in March and became operational in April and May at an estimated cost of £220 million. In normal times, it would be inconceivable that the NHS would be able to create capacity for more than 10,000 extra critical care beds in such a short space of time. 

Whilst there is no doubt this situation has meant that quick, unprecedented decisions have been necessary, not all of the decisions made as a result of Covid have been deemed to be acceptable or appropriate. As we have seen above, public bodies have been accused of making decisions which are “illegal” or unreasonable, and those decisions have been challenged by way of a claim for judicial review in the High Court.

When can you bring a judicial review claim?

Judicial reviews are claims brought against public bodies in relation to its decisions. A judicial review claim can only be brought by a party (a person, company or group) that has sufficient interest in the decision.

In order to bring a claim for judicial review, you must be able to demonstrate that you have sufficient grounds of challenge. In summary, the grounds for judicial review include:

  • Illegality – if the decision is considered to be “illegal”, for example because the body making the decision did not legally have the power to make such a decision, or if it exercised its power incorrectly;
  • Irrationality – if the decision is considered to be “irrational” or so unreasonable that no reasonable public body would have made that decision;
  • Procedural unfairness – if the decision-maker has not followed the correct procedure when making the decision, for instance they have failed to provide reasons for their decision (where required to do so) or failed to follow a particular consultation process;
  • Legitimate expectation – where the person affected by the decision had a legitimate expectation that a different decision would have been made.

These claims must be issued at court as quickly as possible, and no later than 3 months from the date of the decision being challenged.

If you would like to discuss a potential judicial review claim, please get in touch with our Commercial Litigation team 0345 241 5305.

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Lizzie McPeake is a Solicitor located in Manchesterin our Commercial Litigation department

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Oliver Wright is a Partner located in Manchesterin our Commercial Litigation department

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