Learning Outcomes
After studying this article, you will be able to identify and explain the main remedies available in judicial review proceedings, including quashing orders, prohibiting orders, mandatory orders, injunctions, declarations, and damages. You will understand when each remedy is appropriate, their legal effect, and the principles guiding the court’s discretion in granting them. You will also be able to apply these concepts to realistic SQE1-style scenarios.
SQE1 Syllabus
For SQE1, you are required to understand the remedies available in judicial review and their practical application. As you revise this topic, focus on:
- the main types of remedies available in judicial review (quashing, prohibiting, mandatory orders, injunctions, declarations, damages)
- the circumstances in which each remedy is appropriate
- the discretionary nature of judicial review remedies
- the relationship between judicial review remedies and other civil remedies
- the limits on awarding damages in judicial review
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- Which remedy is used to nullify a public body's unlawful decision?
- What is the difference between a prohibiting order and a quashing order?
- In what circumstances can a court award damages in judicial review proceedings?
- Can a claimant obtain an injunction against a public authority in judicial review? If so, when?
Introduction
Judicial review is a key mechanism for holding public bodies to account. When a court finds that a public authority has acted unlawfully, it may grant a range of remedies to address the illegality. The main remedies are quashing orders, prohibiting orders, mandatory orders, injunctions, declarations, and, in limited cases, damages. Understanding the nature, effect, and limitations of these remedies is essential for SQE1.
Quashing Orders
A quashing order (formerly known as certiorari) is the most common remedy in judicial review. It sets aside a public body's unlawful decision, treating it as if it never had legal effect.
Key Term: quashing order A court order that nullifies a public body's unlawful decision, removing it from the legal record.
When a quashing order is granted, the original decision is void. The usual result is that the matter is remitted to the public body to reconsider the decision lawfully. Courts may also suspend the effect of a quashing order or specify that it only has effect for the future, depending on the circumstances.
Worked Example 1.1
A local authority refuses a licence to a business without following the required procedure. The business applies for judicial review and the court finds the authority acted unlawfully.
Answer: The court will likely grant a quashing order, setting aside the refusal. The authority must reconsider the application following the correct procedure.
Prohibiting Orders
A prohibiting order (formerly prohibition) is a forward-looking remedy. It prevents a public body from acting unlawfully in the future, such as stopping a tribunal from exceeding its powers.
Key Term: prohibiting order A court order preventing a public body from taking a proposed unlawful action.
Prohibiting orders are used where a public authority is about to make a decision or take action outside its legal powers. They are less common than quashing orders but are important for preventing anticipated illegality.
Worked Example 1.2
A regulatory tribunal is about to hear a case it has no jurisdiction over. An affected party seeks judicial review.
Answer: The court may grant a prohibiting order to prevent the tribunal from proceeding unlawfully.
Mandatory Orders
A mandatory order (formerly mandamus) compels a public body to perform a legal duty it has failed or refused to carry out.
Key Term: mandatory order A court order requiring a public body to fulfil a legal obligation it has neglected.
Mandatory orders are appropriate where a public authority has unlawfully failed to act, such as refusing to consider an application it is required to determine.
Worked Example 1.3
A council refuses to process a housing benefit application despite a statutory duty to do so.
Answer: The court may grant a mandatory order requiring the council to process the application.
Injunctions
Injunctions are flexible remedies that may prohibit a public authority from acting unlawfully (prohibitory injunction) or require it to act (mandatory injunction). They are often used to provide urgent, interim relief pending a final decision.
Key Term: injunction A court order requiring a party to do or refrain from doing a specific act.
Injunctions are available in judicial review, especially where immediate action is needed to prevent irreparable harm. Interim injunctions can be granted to maintain the status quo until the court determines the lawfulness of the public body's conduct.
Exam Warning
Courts will not grant an injunction if damages or another remedy would be adequate. The court will also consider the public interest and balance of convenience before granting an injunction against a public authority.
Declarations
A declaration is a statement by the court clarifying the legal position of the parties. It does not compel action but provides authoritative guidance on the law.
Key Term: declaration A court statement confirming the legal rights or obligations of the parties, without ordering any action.
Declarations are useful where parties need certainty about their legal position, such as the validity of a regulation or the interpretation of a statute.
Worked Example 1.4
A government department issues guidance that is unclear in its legal effect. An affected party seeks clarification.
Answer: The court may grant a declaration stating the correct legal position, guiding future conduct.
Damages
Damages are rarely awarded in judicial review. The primary focus is on the lawfulness of public decisions, not compensation. However, damages may be available if the claimant can show a separate legal entitlement, such as a tort or breach of statutory duty, or for breaches of rights under the Human Rights Act 1998.
Key Term: damages (in judicial review) Monetary compensation awarded by a court for loss caused by unlawful action, but only if the claimant has a separate legal right to damages.
Section 31(4) of the Senior Courts Act 1981 allows the court to award damages in judicial review if the claimant could have obtained them in a civil claim. Under the Human Rights Act 1998, damages may be awarded if necessary to afford "just satisfaction" for a breach of Convention rights.
Worked Example 1.5
A public authority unlawfully revokes a business licence, causing financial loss. The business succeeds in judicial review but has no separate right to damages.
Answer: The court may quash the revocation but will not award damages unless the business can prove a separate cause of action (e.g., negligence or breach of statutory duty).
Discretionary Nature of Remedies
Remedies in judicial review are always discretionary. Even if the court finds illegality, it may refuse a remedy if, for example, the claimant has delayed unreasonably, has an alternative remedy, or if granting relief would cause disproportionate harm to others or the public interest.
Revision Tip
Always consider whether the court is likely to exercise its discretion to refuse a remedy, even if the claimant proves unlawfulness.
Key Point Checklist
This article has covered the following key knowledge points:
- The main remedies in judicial review are quashing orders, prohibiting orders, mandatory orders, injunctions, declarations, and damages.
- Quashing orders set aside unlawful decisions; prohibiting orders prevent anticipated unlawful acts; mandatory orders compel performance of legal duties.
- Injunctions may prohibit or require action, especially for urgent or interim relief.
- Declarations clarify legal rights or obligations but do not compel action.
- Damages are rarely available and require a separate legal right or a breach of Convention rights.
- All remedies in judicial review are discretionary; the court may refuse relief in certain circumstances.
Key Terms and Concepts
- quashing order
- prohibiting order
- mandatory order
- injunction
- declaration
- damages (in judicial review)
