Judicial review is a tactical option for campaigning charities

The process is complex and costly, but it can work, says Robert Nieri, senior associate at Freeth Cartwright LLP

Robert Nieri, senior associate, Freeth Cartwright
Robert Nieri, senior associate, Freeth Cartwright

One phrase that is mentioned increasingly frequently in the news these days is 'judicial review'. In recent years, for instance, there have been a number of court challenges to the guidance produced by the National Institute of Clinical Excellence on the availability of drugs and the treatment of illnesses on the NHS.

This year, claims have been threatened in response to the refusal of the BBC to broadcast the Disasters Emergency Committee's Gaza Appeal, and in the wake of the Icelandic banking collapse.

Manchester cancer hospital Christie's filed a challenge to the Financial Services Compensation Scheme's refusal to reimburse charities that suffered losses in the collapse. This was withdrawn when NHS North West stepped in to give Christie's the £6.5m it lost.

But as Third Sector went to press, the Save our Savings coalition, led by Cats Protection, was threatening to take the Government to court over its recent refusal to compensate other affected charities.

Judicial review is a High Court procedure for challenging administrative actions, including decisions taken by government departments and other public bodies. However, it is not easy to mount a successful challenge.

In 2007, the Alzheimer's Society supported a challenge to Nice's decision not to allow prescription on the NHS of certain anti-dementia drugs to early-stage Alzheimer's sufferers. The claim succeeded, to the extent that it was shown that the Nice guidance discriminated against a significant group of people and had to be changed.

But the claim also failed, because the Nice decision-making process was not deemed "unfair" or "irrational". The judge could not decide whether Nice had made the right decision and confirmed "a judgement had to be made by the experts. This is an area into which the court should not stray."

Similarly, two people with ME sought judicial review earlier this year of a Nice guideline recommending certain treatment for people with a mild form of the illness. The judge ruled that it could not be said that the decision by Nice to make a recommendation about treatment on the basis of the evidence available was "irrational". Decisions of fact were for those entrusted to make those decisions, it was concluded.

With such seemingly high hurdles to cross, charities might wonder why they should bother with judicial review claims. But advancing a claim can itself act as a focus for campaigning on an issue and for gathering evidence and support for the cause.

At the very beginning of her ruling in the Alzheimer's case, the judge said the case was "not about the court having to decide whether a sufferer is worth £2.50 a day, a figure which is said to be the cost of treatment with the drug". That may have been how the judge saw the case, but it was not how the matter was reported in the press or understood by the public.

However, the significant cost and management time involved in mounting a challenge - even just as an 'interested party' rather than a claimant - should not be underestimated.

If unsuccessful, a charity could find itself liable to pay the other side's legal costs as well as its own, so when considering involvement in a judicial review challenge it might first seek to secure a protective costs order from the court.

This is where the court accepts that arguments should be advanced as a matter of public interest and that, even where unsuccessful, the relevant party should not be liable for the other party's legal costs.

The Save our Savings coalition's campaign to retrieve funds lost in Iceland continues. Whatever the outcome, it is clear that judicial review has its place as one of a number of tactical options to deploy in the campaigning strategies of charities. Even when a challenge doesn't succeed, it could provide the impetus for eventual change outside the doors of the court.

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