Vijayatunga, R (on the application of) v The Legal Services Commission

Judicial review is a remedy of last resort. Where a contract provides an arbitration procedure capable of dealing satisfactorily with the claimant’s complaints, the court may refuse permission for judicial review, even where the complaints are framed as public law issues such as proportionality or procedural unfairness. Detailed challenges closely bound up with the merits of a contractual decision are generally suitable for determination by an arbitrator. Judicial review must not be used to shortcut an agreed alternative remedy, particularly arbitration.

The claimant sought permission to bring judicial review proceedings challenging the Legal Services Commission Contract Review Board’s decision to uphold termination of her firm’s General Civil Contract and Specialist Quality Mark following a failed management audit.

The contract contained an arbitration clause, and the claimant had given notice of an intention to arbitrate. Permission had previously been refused on the basis that arbitration was the appropriate course, and that the claim was not brought promptly. On renewal, the court assumed in the claimant’s favour that the decision was amenable to judicial review, that the claim was prompt, and that a stay under the Arbitration Act 1996 was discretionary. The central issue was whether judicial review should nevertheless be permitted where arbitration was available and had been initiated.

1. The renewed application was refused. The court held that judicial review is a remedy of last resort and that arbitration was the more appropriate remedy, particularly because the claimant had initiated it.
2. The complaints could be satisfactorily determined by an arbitrator. The fact that proportionality is commonly discussed in public law did not prevent an arbitrator from considering whether termination was an excessively severe response to the alleged faults.
3. The allegations of unfairness were likewise suitable for arbitration. They included reliance on closed files, failure to provide the substance of interviews, inadequate time to make submissions, and an alleged duty to provide training and guidance rather than terminate the contract. The arbitration would proceed by way of a de novo rehearing, enabling the arbitrator to consider those matters and require disclosure where appropriate.
4. This was not a case involving a sharp-edged point of law requiring early determination by the Administrative Court. The complaints were either attacks on the merits or closely bound up with the merits, and were better dealt with through the agreed arbitral process.
5. Judicial review should not be used to shortcut an agreement to use an alternative remedy, especially arbitration. The application was dismissed. The defendant was awarded the costs of preparing the summary grounds and acknowledgment of service, subject to detailed assessment, but not the costs of attending the hearing.

Permission had previously been refused on the papers by Pitchford J. The renewed application was refused by the High Court (Administrative Court).