Define: Writ Of Review

Writ Of Review
Writ Of Review
Quick Summary of Writ Of Review

A writ of review is a legal process that allows an appellate court to review the record of proceedings in a lower court, also known as the common-law writ of certiorari. For instance, if a party is dissatisfied with a lower court’s decision, they can file a writ of review to request a higher court review the case. For example, if a person is convicted of a crime in a trial court, they can file a writ of review to ask an appellate court to review the trial court’s decision. This example demonstrates how a writ of review can be used to challenge a lower court’s decision, allowing a higher court to review the record of proceedings and determine if any errors were made. This process helps ensure that justice is served and that legal decisions are fair and accurate.

What is the dictionary definition of Writ Of Review?
Dictionary Definition of Writ Of Review

The writ of review is a legal document issued by an appellate court to review the proceedings of a lower court. It is also referred to as the common-law writ of certiorari.

Full Definition Of Writ Of Review

The writ of review, historically rooted in common law, is a judicial order issued by a higher court to a lower court or tribunal directing it to send the record of a proceeding for review. It serves as a mechanism to ensure the legality and propriety of lower court decisions and is integral to the supervisory jurisdiction of superior courts over inferior courts and tribunals. This legal overview will examine the nature, purpose, historical development, procedural aspects, and contemporary application of the writ of review in British law.

Nature and Purpose

A writ of review, often synonymous with certiorari in the context of judicial review, is fundamentally a tool for correcting errors of law apparent on the face of the record. Its primary purpose is to maintain the rule of law by ensuring that lower courts and tribunals act within their jurisdiction and according to the law. It provides a mechanism for higher courts to oversee and correct decisions that may have been made ultra vires (beyond the powers) or with a significant procedural irregularity.

The writ of review is not an appeal; it does not entail a re-hearing of the matter on its merits. Instead, it focuses on the legality of the process and the decision-making authority. It addresses questions such as whether the lower court or tribunal had the jurisdiction to make the decision, whether it followed due process, and whether it adhered to principles of natural justice.

Historical Development

The origins of the writ of review can be traced back to medieval England, where it was developed as part of the prerogative writs issued by the monarch or the King’s courts. The writ of certiorari, in particular, was used by the King’s Bench to supervise inferior courts and ensure they did not exceed their jurisdiction. Over time, as the judicial system evolved, the function of certiorari became more formalised and was adopted by superior courts as a standard means of judicial oversight.

The Judicature Acts of 1873 and 1875 in England played a significant role in modernising the court system, consolidating various common law writs, including certiorari, into a more coherent framework of judicial review. These Acts established the High Court of Justice with broad supervisory jurisdiction, paving the way for the contemporary understanding and use of the writ of review.

Procedural Aspects

The procedure for obtaining a writ of review typically involves several steps:

  1. Application: The aggrieved party (the applicant) files an application with the appropriate higher court, usually the High Court, seeking a writ of review. The application must specify the grounds on which the review is sought, such as lack of jurisdiction, error of law, or procedural irregularity.
  2. Leave to Apply: In many jurisdictions, the applicant must first obtain leave (permission) to apply for the writ. This preliminary step involves demonstrating to the court that there is an arguable case warranting judicial review.
  3. Notice to Respondents: The applicant must serve notice of the application on the respondents, typically the lower court or tribunal and any other interested parties.
  4. Hearing: The court will conduct a hearing to determine whether to issue the writ. The hearing focuses on the legal issues raised in the application and whether the lower court or tribunal acted within its jurisdiction and according to law.
  5. Decision: If the court grants the writ, it will order the lower court or tribunal to send the record of the proceedings for review. The higher court will then examine the record to determine if there were any legal errors or procedural irregularities.

Grounds for Issuing a Writ of Review

The grounds for issuing a writ of review are typically centred around ensuring that the lower court or tribunal acted within its jurisdiction and followed legal principles. Common grounds include:

  1. Lack of Jurisdiction: If the lower court or tribunal exceeded its legal authority or acted outside its jurisdiction, the higher court may issue a writ of review.
  2. Error of Law: A writ of review may be issued if there is a clear error of law on the face of the record. This means that the decision of the lower court or tribunal was based on a misinterpretation or misapplication of the law.
  3. Procedural Irregularity: The writ can be granted if there were significant procedural errors or failures to follow due process, such as denying a party a fair hearing or failing to consider relevant evidence.
  4. Breach of Natural Justice: If the decision-making process violated principles of natural justice, such as bias or lack of impartiality, the higher court may intervene through a writ of review.
  5. Unreasonableness: In some cases, the higher court may issue a writ if the decision of the lower court or tribunal was so unreasonable that no reasonable authority would have made it.

Contemporary Application

In contemporary British law, the writ of review, particularly in the form of certiorari, remains a vital aspect of judicial review. It is commonly used in administrative law to challenge decisions made by public bodies, including local authorities, regulatory agencies, and other administrative tribunals.

The Administrative Court, a specialist court within the Queen’s Bench Division of the High Court, handles most applications for judicial review, including those seeking a writ of certiorari. The court’s role is to ensure that public bodies act lawfully and fairly, providing a check against the abuse of power and safeguarding individual rights.

Case Law and Precedents

Several landmark cases have shaped the application and scope of the writ of review in British law:

  1. R v. Northumberland Compensation Appeal Tribunal, ex parte Shaw (1951): This case established that certiorari could be used to correct errors of law on the face of the record, expanding the scope of judicial review.
  2. Anisminic Ltd v. Foreign Compensation Commission (1969): The House of Lords held that any error of law made by a public body in its decision could render the decision null, reinforcing the supervisory role of the courts.
  3. Council of Civil Service Unions v. Minister for the Civil Service (1985): Commonly known as the GCHQ case, this decision articulated the grounds for judicial review, including illegality, irrationality, and procedural impropriety.

Differences from Other Judicial Review Remedies

The writ of review is one of several remedies available in judicial review proceedings. Other common remedies include:

  1. Prohibition: A writ of prohibition prevents a lower court or tribunal from exceeding its jurisdiction or acting unlawfully. It is a preventive measure, unlike certiorari, which is corrective.
  2. Mandamus: This writ compels a public authority to perform a duty it has failed to perform. It ensures that public bodies fulfil their legal obligations.
  3. Declaration: A declaratory judgment clarifies the legal position or rights of the parties without necessarily providing a specific order or remedy.
  4. Injunction: An injunction restrains a party from acting in a certain way or requires specific action to be taken. It can be used to prevent ongoing or imminent unlawful acts.

Conclusion

The writ of review is a cornerstone of the judicial review process in British law, ensuring that lower courts and tribunals act within their legal bounds and adhere to principles of justice and fairness. Its historical roots, procedural framework, and application in contemporary law underscore its importance in maintaining the rule of law and protecting individual rights.

By providing a mechanism for higher courts to oversee and correct errors made by lower courts and tribunals, the writ of review upholds the integrity of the legal system and reinforces the principle that no authority is above the law. As such, it remains an essential tool in the administration of justice and the protection of civil liberties in the United Kingdom.

Writ Of Review FAQ'S

A Writ of Review is a legal document that allows a higher court to review the decision of a lower court or administrative agency.

You can file a Writ of Review when you believe that a lower court or administrative agency has made an error in its decision that has negatively affected your rights or interests.

The purpose of a Writ of Review is to provide a mechanism for correcting errors made by lower courts or administrative agencies and ensuring that justice is served.

To file a Writ of Review, you typically need to draft a petition outlining the errors made by the lower court or administrative agency and explaining why the higher court should review the decision. You will then need to file the petition with the appropriate court and serve it on the opposing party.

The deadline for filing a Writ of Review varies depending on the jurisdiction and the specific circumstances of your case. It is important to consult with an attorney to determine the applicable deadline in your situation.

If your Writ of Review is denied, you may still have the option to appeal the decision to a higher court. However, the availability of an appeal will depend on the specific rules and procedures of your jurisdiction.

If the higher court grants your Writ of Review, it will review the decision of the lower court or administrative agency and determine whether any errors were made. The higher court may then reverse, modify, or affirm the decision.

Yes, you can request a stay of the lower court’s decision while your Writ of Review is pending. A stay temporarily suspends the enforcement of the lower court’s decision until the higher court has made a final determination.

Yes, you have the right to represent yourself in a Writ of Review proceeding. However, it is generally recommended to seek the assistance of an experienced attorney who can navigate the complex legal process and advocate for your rights effectively.

If your Writ of Review is successful, the higher court may reverse the decision of the lower court or administrative agency, order a new hearing, or provide any other appropriate relief to rectify the errors that were made.

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Disclaimer

This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 9th June 2024.

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