UK Law and Practice Contributed by: Charles Brasted, Julia Marlow, Andrew Eaton and Fraser Eccles, Hogan Lovells International LLP
a personal duty to the court to ensure the duty of candour is fulfilled. 8.3 Live Evidence and Cross- Examination The courts have an inherent power to direct that oral evidence be given, or that witnesses may be cross-examined, in judicial review proceedings. However, judicial review generally does not con - cern disputes of fact, but rather the lawfulness of governmental action in respect of agreed facts. This means oral evidence and cross-examina - tion are rarely needed to dispose of the claim fairly and justly; the default position is that all evidence is given in writing and the courts have reiterated that oral evidence will be permitted only exceptionally. Even where a dispute of fact arises in the course of judicial review proceedings, if a party does not challenge the written evidence provided by another party by applying for cross-examina - tion, the evidence will be accepted by the court unless it “cannot be correct” (R (Singh) v Sec - retary of State for the Home Department [2018] EWCA Civ 2861). 9. Time Limits and Preliminary Steps 9.1 Preliminary Requirements A prospective claimant for judicial review must comply with the Pre-Action Protocol for Judicial Review, which is intended to assist the parties to narrow the issues in dispute. Parties who do not comply with the Pre-Action Protocol, which is prescriptive as to format and information to be included, may be subject to costs sanctions. The steps of the Pre-Action Protocol are as fol - lows.
• The claimant should send a letter before claim to the defendant, which sets out the details of the decision being challenged, a clear summary of the facts and the legal basis for the claim. • The defendant should respond to the letter before claim within 14 days or send an interim response which seeks an extension. • The parties should consider whether a form of alternative dispute resolution or complaints procedure would be more suitable than litiga - tion. 9.2 Exhausting Internal Appeals A claimant must satisfy the court that there are no adequate alternative remedies avail - able before applying for judicial review or the court may refuse permission to apply for judicial review (R (Archer) v Commissioner for HM Rev - enue and Customs[2019] EWCA Civ 1021). This may include internal complaints procedures and other review processes and appeals. 9.3 Time Limits Applications for judicial review must be brought “promptly” and “in any event not later than three months after the grounds to make the claim first arose” (CPR 54.5(1)). This time limit cannot be extended by agreement between the parties. An application that is brought within three months may still be out of time if the court determines that the claimant did not apply promptly. If the application relates to a decision, the time runs from the date of the decision rather than the date when the claimant was informed about the deci - sion. The court may extend the time limit even if it has already expired (CPR 3.1(2)(a)). Where time has already expired, the claimant must make an application for an extension of time in the claim form, which will be considered by the court
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