Judicial Review Delay in UK Law

The argument is that the refusal to supply the fully executable version was the subject of a clear decision by NICE which was capable of being challenged at the time; yet Eisai waited some 18 months, until the end of the appraisal process, before mounting its challenge. Had a prompt challenge been made, the court would have entertained it at that time, rather than allowing the appraisal process to continue for over a year in circumstances of doubt as to its lawfulness.

The court therefore still retains a discretion to refuse to grant leave for the making of the application or the relief sought on the substantive application on the grounds of undue delay, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially, prejudice the rights of, any person or would be detrimental to good administration.

If proceedings of a type which would normally be brought by judicial review are instead brought by bringing an ordinary claim, the court in deciding whether the commencement of the proceedings is an abuse of process can take into account whether there has been unjustified delay in initiating the proceedings.

It follows that, when an application for leave to apply is not made promptly and in any event within three months, the court may refuse leave on the ground of delay unless it considers that there is good reason for extending the period; but, even if it considers that there is such good reason, it may still refuse leave (or, where leave has been granted, substantive relief) if in its opinion the granting of the relief sought would be likely to cause hardship or prejudice (as specified in section 31(6)) or would be detrimental to good administration.

My fourth proposition is that a remedy by way of judicial review is not to be made available where an alternative remedy exists. Judicial review is a collateral challenge: it is not an appeal. Where Parliament has provided by statute appeal procedures, as in the taxing statutes, it will only be very rarely that the courts will allow the collateral process of judicial review to be used to attack an appealable decision.

I do not read them as seeking to undermine the principles that purely public acts should be challenged by judicial review, and that it is in the public interest that the legality of the formal acts of a public authority should be established without delay. The latter is confirmed by the retention in CPR54 of the requirement that an application to bring judicial review proceedings must be made promptly, and in any event within three months.