The true statistics behind judicial review’s success rates

23 March 2015 by Guest Contributor

Avid readers of the legal press may have spotted the eye-catching statistic that in 2014 a meagre 1% of claims for judicial review were successful.

The figure is derived from the statement in the MOJ’s overview of the Civil Justice Statistics Quarterly (October – December 2014) published on 5 March 2015, in which the MOJ said:

The proportion of all cases lodged found in favour of the claimant at a final hearing has reduced … to 1% in 2013 and has remained the same in 2014.

The overview provided by the MOJ is unsurprisingly hardly a neutral presentation of the statistics. The statement is clearly intended to tell a story about the futility of the vast majority of judicial review claims, adding fuel to the MOJ-stoked fire that has been raging against judicial review.

In fact the statistic tells the opposite story, as revealed by the underlying tables.

The 1% statistic refers to the proportion of cases lodged in the Administrative Court in 2013 and 2014 in which the claimant had a successful outcome at final hearing. The figure makes no sense unless you know that in 2013 less than 3% of cases lodged made it to a final hearing. What the statistic reveals is the very small number of cases that actually make it to a final hearing, and this tells a further story, to which we will come. In relation to 2014 the 1% figure makes even less sense taken on its own, however. Just under 3.5% of the 2014 cohort of claims lodged had made it to final hearing by the end of the year and 30% of the cohort (1218) were still progressing through the system. Therefore as a percentage of the overall cases lodged the 1% figure is pretty meaningless.

Yet more significantly, of the 2014 cohort of 4062 cases lodged, the success rate for claimants at trial has actually been 36%. Of 144 final hearings so far 52 (36%) were won. And another 7 (2.7%) are recorded as having resulted in an outcome which is neither a win nor a loss.

It is interesting that the MOJ chooses to highlight that only 1% of cases lodged have been won at a final hearing rather than that public authorities have prevailed at final hearings in only about 2% of cases lodged. The latter is perhaps the more revealing statistic given the very high number of cases that settle in favour of claimants before trial.

The true significance of the 1% statistic—and the 2% statistic—is in indicating how few cases lodged actually make it to a final hearing. The vast majority of cases are either withdrawn before reaching this stage or refused permission.

Importantly, most cases that are withdrawn before reaching trial do so because of a change of position or concession by a defendant. We say this based on our own experience and with the support of the study published as Dynamics of Judicial Review Litigation by the Public Law Project, University of Essex and the Nuffield Foundation in 2009 (Bondy and Sunkin).

One of the findings of that study was that:

the vast majority of cases that settled did so in favour of claimants.”(p.39)

Of cases that settled pre-permission in the sample, in 46% the claimant obtained a particular benefit that had been sought and in a further 39% the defendant agreed to reconsider decisions or carry through a decision-making process that they had failed to complete.

The overall percentage of claims in the sample of settled cases which were found to have settled favourably to claimants post-permission was 59% with only 22% identified as having been defendant wins.

The reasons for these high rates of settlements being in favour of claimants are explored in that report. One important factor is that defendants tend to settle once they have seen the writing on the wall. Thus, many pre-permission cases involve urgent matters where proceedings have been lodged on an attenuated (often highly attenuated) pre-action timescale. Such cases often seek interim relief and if granted the claims very often settle. Similarly, public authorities with arguable grounds of defence like to ‘try their luck’ at the permission stage (there is, regrettably, no costs disincentive to them doing so) but concede or remake the decision if permission is granted. Often, criticisms expressed in the judge’s reasons at the permission stage prompt them to do so.

Therefore when the 1%/2% figures are married-up with what we know about the basis on which cases settle, it reveals that overall the success rate in judicial review is very much higher than one might think. This is the case even when the relatively modest permission rates are taken into account (see bullets below). Most cases settle before the permission stage and of these a very high percentage settle in a claimant’s favour. The permission stage presents a substantial hurdle and of the surviving claims roughly around 80% are weeded-out at this stage. But of those claims proceeding beyond permission, the chances are that a favourable settlement will be reached for the claimant before trial (well in excess of 50% of cases settled). If the case is one of the very small number that fight all the way to trial —which one would expect to be some of the cases with the strongest grounds of defence – 30%-40% of claims still prevail.

The statistics also reveal the following interesting facts:

• The numbers of judicial review claims climbed steeply, reaching a peak of 15,594 in 2013, but last year only 4,062 claims were issued – a level not seen since 2000. This reflects the transfer of immigration cases to the Upper Tribunal for Immigration and Asylum Chamber from November 2013.
• From 2000 until 2011 success rates at trial hovered around 40% but then took a dive in 2011, falling to 31% for the 2013 cohort. One may speculate that the 36% of the 2014 cases which have so far been successful, taken with the removal of most immigration cases, suggests success rates at trial may creep upwards again to their previous level.
• The fact that the vast majority of claims have been shipped off to the Upper Tribunal does not necessarily mean fewer Administrative Court trials. The statistics show that whilst in recent years there have been roughly 400-500 trials these figures are no different from in the early naughties, in fact they were higher in 2000 and 2001 when the overall number of claims was at their lowest.
•  Of the 2014 cohort 68% reached the permission stage (in line with previous years) and permission has been granted in 20% of those cases (23% including oral renewals). Note that the Civil Justice statistics indicate a lower success rate at the permission stage because they measure the number granted permission against the total number of cases lodged rather than the number still live at the permission stage. The permission grant rate is up from 16% (19% including renewals) last year and 13% (18%) the year before.
• There has been a significant reduction in the amount of time it takes permission decisions to be made (64 days down from about a 100 days in recent years) and for cases to come to final hearing 156 days (down from around a year or more over recent years). These are far more acceptable timescales.

Overall, the statistics paint a picture of relatively high rates of success in judicial review and that the permission stage provides an effective filter of weak claims. They suggest that the process is producing corrective action in the vast majority of strong cases without the claim proceeding to full trial. They support the view that the removal of immigration cases is likely to see a return to a more efficient process for all other claims.

That is not to say that the process is working optimally without problems (see e.g. Fordham, Chamberlain, Steele and Al-Rikabi, Streamlining Judicial Review (Bingham Centre, 2014)). But the statistics provide some much-needed cheer for judicial review procedure.

This post was republished with the kind permission of the United Kingdom Constitutional Law Association and T. Hickman and M. Sunkin,  whose paper covers the issues outlined above: ‘Success in Judicial Review: The Current Position’ U.K. Const. L. Blog (19th Mar 2014)

Tom Hickman is a Reader in Law, University College London and Barrister at Blackstone Chambers.

Maurice Sunkin is Professor of Public Law and Socio Legal Studies, University of Essex.

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