Legal advice: Remedy to an incorrect decision

Related tags High court of justice High court

Under the Licensing Act 2003, if your council refuses to grant or vary a licence or reaches an unsatisfactory decision upon a review, you are...

Under the Licensing Act 2003, if your council refuses to grant or vary a licence or reaches an unsatisfactory decision upon a review, you are entitled to appeal to the magistrates' court. If you are still unhappy with this decision there is another option available to you: a judicial review of the decision by the High Court.

Judicial review is a challenge to the manner in which a decision is made as opposed to an appeal against a decision. Any challenge to a decision must be made under one of three headings:

  • that the decision was illegal
  • that it was irrational
  • that the procedure adopted to reach the decision was fundamentally flawed.

The first covers three main areas:

  • a decision without having the necessary power or authority
  • a decision based on an error of law or fact
  • a decision made without taking into account relevant considerations or taking into account irrelevant considerations.

The second, that of irrationality, is based on the unreasonableness of the decision. The third may include a decision based on an unfair hearing where, for example, relevant documents were not available.

You must have permission to bring a judicial review. To seek the judicial review of a decision you should have a direct personal, professional or representative interest in the decision. If you were party to the decision in the magistrates court, this will generally satisfy this condition.

When you commence judicial review proceedings you ask the court to grant a remedy. The most useful remedy in licensing cases would be a quashing order which invalidates the decision of the magistrates' court.

If the High Court makes such a quashing order it can send the case back to the magistrates' court to make its decision again in the light of the High Court's findings.

If you are interested in this course of action you need to act quickly. Judicial review proceedings will need to be brought 'promptly and in any event within three months' from the date of the judgment of the magistrates court.

You should definitely seek advice from a solicitor and remember that judicial review is an expensive process: you could easily end up with a bill for a five-figure sum.

Related topics Legislation

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