Judicial review - Remedies available in judicial review

Learning Outcomes

This article examines the remedies available in judicial review—quashing orders, prohibiting orders, mandatory orders, injunctions, declarations, and damages—clarifying their legal effect, the contexts in which each is appropriate, and the principles guiding courts when determining whether to grant relief. It outlines the discretionary nature, conditions, and limitations of these remedies; explains their relationship with other civil remedies; details the rules governing the award of damages and the interaction with human rights; and presents scenario-based applications with attention to procedural nuances, typical routes of appeal, and broader constitutional contexts, including recent legislative changes.

SQE1 Syllabus

For SQE1, you are required to understand the remedies available in judicial review, with a focus on the following syllabus points:

• 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 operation and scope of each remedy, including conditions and procedures for their application
• the discretionary character of judicial review remedies and exceptions to discretionary refusal
• the relationship and distinctions between judicial review remedies and other civil remedies (such as tortious claims, equitable remedies, and declarations under the Human Rights Act 1998)
• the limits and requirements for awarding damages in judicial review, including statutory bars and exceptions, and interaction with public law principles and human rights
• the evolution and recent statutory developments affecting the scope, ordering, and effect of remedies (including features introduced by the Judicial Review and Courts Act 2022)
• consideration of alternative statutory remedies and how the availability of alternative recourse influences the use of judicial review remedies

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.

1. Which remedy is used to nullify a public body's unlawful decision?
2. What is the difference between a prohibiting order and a quashing order?
3. In what circumstances can a court award damages in judicial review proceedings?
4. Can a claimant obtain an injunction against a public authority in judicial review? If so, when?

Introduction

Judicial review serves as a central means by which the courts supervise the actions and decisions of public authorities, ensuring legality, rationality, and fairness in the exercise of public power. A successful claim for judicial review offers a distinct set of remedies, chiefly quashing, prohibiting, and mandatory orders—historically known as the prerogative orders. Alongside these, other essential judicial review remedies include injunctions, declarations, and, in restricted circumstances, damages. Each remedy operates within a defined framework, shaped by constitutional principles, statutory requirements, and evolving case law. Comprehending their distinct functions and interrelations is fundamental for effective legal application.

Key Term: judicial review
The process by which courts review the lawfulness of decisions or actions taken by public bodies (or those exercising public functions), focusing on issues of legality, procedure, and reasonableness, rather than the merits of the decision.

Remedies are not granted as of right even if grounds for judicial review are established. The court always retains discretion, guided by considerations of delay, the availability of alternative remedies, the conduct of the claimant, and the wider public interest.

Quashing Orders

A quashing order—historically known as certiorari—is the principal remedy in judicial review. It nullifies an unlawful act or decision by a public body, rendering it void and of no legal effect. Where a court finds that a decision-maker has acted ultra vires, breached procedural requirements, or otherwise erred in law, a quashing order is usually the most appropriate relief.

Key Term: quashing order
A court order that nullifies a public body's unlawful decision, removing it from the legal record.

Quashing orders are essential when the decision complained of has already been made. The outcome is that the decision is treated as though it was never valid; the public body may then be ordered to reconsider the matter afresh, acting within the limits of its legal powers and observing fairness. In practical application, the impugned action is “remitted” to the original authority for reconsideration according to law.

Significantly, the Judicial Review and Courts Act 2022 has introduced new flexibility: courts may now suspend the effect of a quashing order or order that it apply only prospectively, allowing time for the public body or affected third parties to adjust, or for Parliament to consider legislative changes. This is especially relevant where a quashing order could cause major disruption or unfairness due to reliance on the unlawful act.

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.

Courts may issue a suspended or prospective-only quashing order—for instance, allowing an unlawful local licensing scheme to continue temporarily to avoid administrative chaos while the authority remedies the legal defect.

Prohibiting Orders

A prohibiting order—historically known as prohibition—is a preventative remedy. It restrains a public authority or decision-making body from acting unlawfully in the future. Prohibiting orders are generally sought before the anticipated unlawful act is taken.

Key Term: prohibiting order
A court order preventing a public body from taking a proposed unlawful action.

This remedy is typically requested where the public authority or inferior court/tribunal is about to exceed its powers, aims to exercise a function it does not lawfully possess, or when a proposed decision threatens the rights or legitimate expectations of affected individuals. Prohibiting orders are especially useful where adverse or irreversible outcomes could arise from the unlawful act.

Prohibiting orders tend to be less common than quashing orders but remain significant in scenarios where damage can be averted only by court intervention prior to the unlawful exercise of power.

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—historically called mandamus—compels a public body to do what the law requires. Where a public authority has failed or refused to perform a public duty, a claimant may seek a mandatory order to enforce compliance.

Key Term: mandatory order
A court order requiring a public body to fulfil a legal obligation it has neglected.

Mandatory orders address omissions by a public body, such as failure to issue benefits, consider an application, or fulfil a statutory function. The court will only grant this remedy if there is a clear legal duty left unperformed.

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.

The focus of mandatory orders is enforcement of public law duties as distinct from private law contract or tortious obligations.

Injunctions

Injunctions are a flexible and significant judicial tool, closely resembling those in ordinary civil claims. In judicial review, they are often sought either to restrain (prohibitory injunction) or require (mandatory injunction) action by a public authority. They may be final (at judgment) or interim (granted on an urgent basis prior to a full hearing).

Key Term: injunction
A court order requiring a party to do or refrain from doing a specific act.

Injunctions are frequently used at the interim stage to preserve the status quo while the lawfulness of the public body's conduct is determined. For example, an interim injunction might prohibit deportation, demolition, or enforcement action pending review of the decision.

A prohibitory injunction is usually granted to prevent irreversible harm or unlawful activity, particularly where damages would not be an adequate remedy. Mandatory injunctions in judicial review are rare and will not be granted unless strictly necessary.

The courts have discretion in awarding injunctions and must consider factors such as adequacy of alternative remedies, urgency, public interest, the balance of convenience, and whether damages would suffice. Notably, injunctions are equitable remedies and subject to principles such as the need for the claimant to have “clean hands” and to act without undue delay.

Worked Example 1.4

An immigration detainee is about to be deported pending a challenge to the legality of the deportation order. The individual requests urgent court intervention.

Answer:
The court may grant an interim injunction preventing removal until it determines the lawfulness of the deportation.

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 (also known as a declaratory judgment) sets out, in the court's authoritative statement, the legal rights and liabilities of the parties, clarifying the law without ordering any particular action or award.

Key Term: declaration
A court statement confirming the legal rights or obligations of the parties, without ordering any action.

Declarations are deployed where parties need certainty about their legal positions but where a coercive remedy is unnecessary or inappropriate. This tends to arise in complex or contentious areas of law, or when a statutory power or regulation is unclear or disputed.

In judicial review, declarations are sought to settle legal controversies, interpret statutes or regulations, confirm the existence or absence of a legal power, or clarify the lawfulness of an action or omission.

Worked Example 1.5

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.

Declarations play a significant practical role: public authorities generally comply with a court's declaration even though it is not directly coercive. They are suitable where the parties accept the authority of the court and wish to avoid repeated disputes.

Declarations frequently intersect with remedies under the Human Rights Act 1998. When the courts are unable to interpret primary legislation in accordance with Convention rights, they may make a declaration of incompatibility under s4 of the Human Rights Act 1998 (see below).

Damages

Damages—the award of monetary compensation—are exceptional in judicial review. The judiciary’s principal role is to review the lawfulness of the act or omission—not to compensate for injury resulting from maladministration or illegality per se. However, damages can be available if and only if:

• the claimant has, in addition to public law grounds, a valid private law cause of action (such as tort, contract, or breach of statutory duty), or
• the claim involves a breach of Convention rights under the Human Rights Act 1998 and damages are necessary to afford "just satisfaction".

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 provides that the High Court may award damages in judicial review proceedings if, and only if, they could have been awarded in concurrent civil proceedings. Accordingly, unless the same facts would give rise to a successful claim in private law (e.g., negligence, nuisance, breach of contract), or establish a right to damages under the Human Rights Act 1998, damages are not generally available. This reflects the constitutional function of the courts in exercising supervisory, rather than compensatory, jurisdiction.

Worked Example 1.6

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).

Under the Human Rights Act 1998, s8, damages are only awarded if necessary to achieve “just satisfaction,” and the courts have clarified that compensation is typically modest and subordinate to corrective/preventive relief—such as an order requiring cessation of the rights-infringing act or a declaration of incompatibility.

Special Features and Limitations

Discretionary Nature of Remedies

Judicial review remedies are always discretionary. Even if a claimant establishes that a decision or act was unlawful, the court retains wide latitude to refuse relief. Among the reasons for refusing a remedy are:

• the claimant’s delay (undue delay may itself bar relief under s31(6) Senior Courts Act 1981 and CPR r 54.5),
• the existence of an effective alternative remedy not used (such as a statutory appeal or other statutory procedure),
• claimant’s bad faith, misconduct, or disqualifying conduct,
• the absence of practical benefit to the claimant or public,
• excessive prejudice to affected third parties or the wider public,
• the court’s assessment that granting a remedy is not in the public interest,
• the claim lacking a sufficient impact on the claimant (“sufficient interest” requirement).

Additionally, the Judicial Review and Courts Act 2022 has supported courts in ordering suspended or prospective-only quashing, as well as requiring courts to consider the effects on parties and the public before granting retrospective remedies—emphasising proportionality and the avoidance of disruption.

Revision Tip: Always consider whether the court is likely to exercise its discretion to refuse a remedy, even if the claimant proves unlawfulness.

Interaction with Alternative Remedies

Where statute provides an alternative remedy—such as a right of appeal to a tribunal or specialized regulatory body—the courts will ordinarily expect the claimant to use that remedy first and decline judicial review. There are exceptions where the alternative remedy is insufficient, unavailable, or incapable of providing the requisite relief, or where the case raises matters of especial legal importance.

Relationship with the Human Rights Act 1998

When a judicial review claim involves breach of Convention rights, the court may grant a declaration of incompatibility under s4 of the Human Rights Act 1998 when a law cannot be interpreted in a manner compatible with those rights. This does not strike down the legislation but signals to Parliament the need for change.

Damages may be awarded under s8, but only to the extent that is “just and appropriate in all the circumstances”—typically, non-pecuniary relief is preferred. The definition of “victim” is drawn from the European Court of Human Rights, further narrowing the circumstances in which damages are available.

Recent Legislative Changes

The Judicial Review and Courts Act 2022 has:

• empowered courts to suspend the effect of a quashing order or make a prospective–only quashing order, to avoid excessive disruption,
• reinforced judicial discretion regarding the effect and timing of quashing orders,
• clarified that courts can limit or postpone the effect of quashing so as to strike a fair balance between claimants, authorities, and the public interest.

Procedural Points

All judicial review claims proceed under the Civil Procedure Rules Part 54, and only the High Court (Administrative Court) can grant the key prerogative orders. Only public bodies (or those with public law functions) are amenable to judicial review, and leave (permission) is required.

Litigants must show “sufficient interest” and bring claims promptly (generally within three months). Delay, in itself, may justify refusal of a remedy; so may other procedural bars such as abuse of process or lack of standing.

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 of public bodies, either with immediate or tailored effect (e.g., suspended, prospective-only).
• Prohibiting orders prevent imminent unlawful acts by public authorities.
• Mandatory orders compel the performance of legal duties by public authorities that have failed to act.
• Injunctions provide both interim and final relief, prohibiting or mandating action where circumstances require and damages are inadequate.
• Declarations clarify the legal rights and obligations of the parties; used for certainty and guidance, especially in public law disputes or where ongoing compliance is at issue.
• Damages are rarely available in judicial review and only arise when the claimant establishes a parallel private law right or a breach of Convention rights that warrants compensation.
• All remedies in judicial review are discretionary; the court may withhold relief on equitable grounds, for delay, for reasons of public interest, or because of alternative adequate remedies.
• Remedies in judicial review serve not just the private interests of claimants but the broader public interest and constitutional values by ensuring the accountability and legality of public administration.

Key Terms and Concepts

• judicial review
• quashing order
• prohibiting order
• mandatory order
• injunction
• declaration
• damages (in judicial review)