Charles Brasted & Julia Marlow review the latest proposals to introduce a damages remedy in judicial review
It is a fundamental principle of judicial review that it does not of itself provide any basis for the award of damages. Damages may only be awarded in judicial review proceedings on the basis of a parallel cause of action in respect of which damages would be an available remedy (such as under the Human Rights Act or EU law). The entitlement to seek damages in such cases is merely a procedural measure intended to obviate the need for a claimant to institute duplicate proceedings.
This position has historically been justified mainly on the ground that the supervisory jurisdiction of the court exists for the benefit of the public at large and not merely to benefit individual claimants—hence it is that all judicial review proceedings are still formally brought in the name of the Queen. In addition, to award damages to an individual would entail substituting the decision of the court for that of the public authority, something that the court is rarely prepared to do, not
