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However, the need to classify cases as appropriate for judicial review proceedings or
otherwise remains. The relaxed attitude to the mode of commencing private litigation
exhibited by O 2 r 1(3)
cannot
be fully adopted in this context
if the policy of
requiring parties to obtain leave to seek judicial review and to bring such proceedings
promptly is to be maintained.
This policy requires judicial review cases to be set
apart from private litigation.
The approach adopted by the CPR - and canvassed in Proposal 69
- involves an
attempt at clarifying the classification rules in the hope that this will reduce the scope
for argument as to whether O 53 proceedings are appropriate in any particular case.
Instead of focussing immediately on the remedy sought, CPR 54.1(2)(a) begins by
defining what a claim for judicial review is :-
"In this Section, a ‘claim for judicial review' means a claim to review the lawfulness of —
(i)
an enactment; or
(ii)
a decision, action or failure to act in relation to the exercise of a public
function."
Notes
O 2 r 1(3): "The Court shall not wholly set aside any proceedings or the writ or other originating
process by which they were begun on the ground that the proceedings were required by any of these
rules to be begun by an originating process other than the one employed."
O 53 r 9(5) does, however, permit the court to direct that certain types of proceedings brought by
way of judicial review continue as if begun by writ.
O 53 r 4 generally requires the application for leave to move for judicial review to be "made
promptly and in any event within three months" when grounds for such application first arose.
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