PRE-ACTION PROTOCOL

[3.14] Where it is apparent that a matter is one of public law and that the individual has no effective alternative remedy etc, an application for leave to bring an application for judicial review will be appropriate.

[3.15] The corresponding requirements of the Pre-action Protocol are contained in Practice Note 1/2008.^[359] They are:

i. Before making an application, the applicant should send a pre-action letter to the respondent (the Practice Note contains a standard format for the letter). The letter should identify the issues in dispute and establish whether litigation can be avoided.

ii. The letter should contain the date and details of the decision, act, or failure to act being challenged and a clear summary of the facts on which the application is based. It should also contain the details of any relevant information that the applicant is seeking and an explanation of why it is considered relevant.

iii. The letter should normally contain the details of any interested parties known to the applicant, who should be sent a copy of the letter before the request for information. However, Practice Note 1/2008 emphasises that potential applicants should seek legal advice when considering proceedings and, in particular, before sending the pre-proceedings letter to other interested parties.

iv. The application for leave should not normally be made until the proposed reply date given in the pre-action letter has passed, unless the circumstances of the case require more immediate action to be taken.

v. Respondents should normally reply within 14 days (the Practice Note again contains a standard format for replies). Failure to do so will be taken into account by the court, and sanctions may be imposed unless there are good reasons for the failure.

vi. Where it is not possible to reply within the proposed time-limit the respondent should send an interim reply and propose a reasonable extension. Where an exten­sion is sought, reasons should be given and, where required, additional information requested. This will not affect the time-limit for making an application for judicial review (on which see [3.28]-[3.30]) and nor will it bind the applicant where he or she considers the extension to be unreasonable. However, where the court con­siders that a subsequent application for leave is made prematurely it may impose sanctions (on prematurity see [3.11]-[3.13]).

vii. If the matters raised in the applicant’s letter are being conceded in full, the reply should say so in clear and unambiguous terms.

viii. If the matters raised in the applicant’s letter are being conceded in part or are not being conceded at all, the reply should say so in clear and unambiguous terms, and should (a) where appropriate, contain a new decision, clearly identifying which matters are being conceded and which are not, or give a clear time-scale within which a new decision will be issued; (b) provide a fuller explanation for the decision, if considered appropriate to do so; (c) address any points of dispute, or explain why they cannot be addressed; (d) enclose any relevant documentation requested by the applicant, or explain why the documents are not being enclosed; and (e) where appropriate, confirm whether or not the respondent will oppose any application for an interim remedy (on which remedies see [3.44]-[3.49]).

ix. The response should be sent to all interested parties identified by the applicant and contain details of any other parties who the respondent considers to have an interest.

[3.16] It should lastly be noted that there is no necessity to observe the Pre-action Protocol in two circumstances. The first is where the proposed respondent does not have the legal power to change the decision being challenged, where the Practice Note gives the example of �decisions issued by tribunals such as the Asylum and Immigration Tribunal’. The second circumstance is where a case is �urgent’, for instance where an individual is due to be removed from the UK or where a prisoner is seeking compas­sionate temporary release for the funeral of a family member (on urgent cases see [3.32]). In such cases, the pre-action letter and associated timeframes would become impracticable and it is permissible for proceedings to be initiated almost immediately. The Practice Note does, however, also state that it is good practice for an applicant to forward to the proposed respondent a draft of the application that is to be made to the court. This is so that the proposed respondent can still address the issues in advance of any hearing, viz where it is minded to concede the points to be made.