INTRODUCTION TO JUDICIAL REVIEW
Seán McParland – LC(NI) Mental Health Legal Unit
PILS Stakeholder Forum – Tuesday 4th September 2012
Law Centre (NI) 2012
Aims & Objectives
• To briefly discuss the anatomy of a Judicial
Review (JR) from start to finish
• Use an actual JR case as example
• Presentation is practically focused
• It is not very technical
JR 45 [2011] NIQB 17
• Challenge to a Mental Health Review Tribunal [MHRT]
decision
• On ground that MHRT incorrectly construed and
applied the material provisions of the Mental Health
(Northern Ireland) Order 1986.
• In particular the statutory test of ‘substantial
likelihood of serious physical harm’ {Art. 77 (1)(B)}
Origins of JR cases
• Have a strategy with focus on 2/3 issues
• Outreach and Networking with others
• Trends can arise out of normal casework
• Be alert to unexpected JR opportunity
• Wait until right case comes along
Funding
• Legal Aid
•Trade Union/ Charitable organisation
•Pro – Bono legal team
•PILS
•Protective Costs Order
Getting started..
• 3 month time limit – but may be ongoing breach.
• May need to engineer a decision that is capable of JR.
•Pre-action protocol letter
•Get a reply from proposed Respondent in correct form
• Get Counsel involved to advise on merits and draft
pleadings
Practice points
• It need not be the Applicant who does affidavit if
mainly legal issues involved.
• Make sure the relevant practice directions from Court
are complied with and the correct number of
documents are lodged and served.
•Liaise closely with proposed Respondent’s Solicitor. It
is Applicant’s responsibility to have paperwork in order,
so ensure that their pagination etc. is correct.
Gather evidence
• Primarily documents from the parties to the action.
• Other organisations may have an interest: can
become intervenor, do an affidavit or simply provide
information
• Journalists/ Media
•Policy units: need to communicate internally
• Expert witnesses: evidence adduced by affidavit.
Rarely are witnesses examined in Court.
Leave Hearing
• ‘ If a quick perusal of available material discloses an
arguable case in favour of granting the applicant the
relief claimed..[the Court] ought to give him leave to
apply for that relief.’ IRC –V- National Federation of Self Employed and Small Businesses
Ltd. [1982] AC 617 at 643
• Often the Order 53 statement will be amended
• If granted, applicant serves Notice of Motion within
14 days
• May need to arrange funding for substantial hearing
Substantial Hearing
• Organic Process: Things will develop and change as
case progresses. New documents may emerge.
• If the Applicant gets what she wanted mid-stream, the
matter may still be worthy of pursuit. Public interest
could defeat the Salem principle that the issue is now
academic.
• The Decision: the judgment may go beyond what was
originally sought. The judge may expound on other
issues which may prove useful.
If JR not granted
• Only 5% of JR’s are successful
• Go through the judgment forensically for areas of
challenge.
•Could be that whilst Applicant lost, the principle is
established.
•Wider Policy concerns may drive need to appeal
•Can appeal to the Court of Appeal (with permission)
• Could be that room for a factually better case to
progress the matter.
Some content of JR45 judgment
• Substantial Likelihood is defined as a ‘Real Probability’
•‘Serious physical harm’: is something more than trivial
or minor
•Tribunals cannot seek to validate their written reasons
by averring to additional reasoning in subsequent
avidavits.
• If someone expresses themselves to be ‘afraid’, it
won’t meet the test. More detail is required
• People at risk should be identified
Impact of JR 45
• Anecdotal evidence indicates that it has had a positive
impact on MHRT decisions.
• Since March 2011, it has been referred to in 50% of
MHRT written reasons that Derry LC(NI) has been
involved in.
• In the same period the percentage of discharges in
LC(NI) heard cases increased from 37% to 50%.
•Healthcare professionals are aware of the case and it
informs their decisions at admission stage.