Judicial review could prove to be a lengthy, complex and expensive process
Mounting a judicial review challenge to a government decision is extremely difficult. Should the government implement the proposed vehicle recovery charges as they stand, and members of the Insurance Forum decide to take action, they will have to establish – subject to initially proving to the court they have an arguable case – that the government’s decision was badly made on one of three grounds.
The first is “illegality”, where a decision is made outside the powers of the body making it. Second is the “procedural impropriety” or “fairness” ground, where failures are identified in the process of reaching the final decision. Thirdly, the “irrationality” ground can be argued, whereby a decision must be proved to be so unreasonable that a sensible person could not have made it.
The government certainly exercises the power to make this decision and would not fall foul on the “illegality” ground – it would usually do so only when making a decision on very high level constitutional issues. Similarly, the “procedural impropriety” or “fairness” ground would not appear to be the best cause of action, seeing as the decision has been put out for a lengthy public consultation. However, there may be an argument if the views of some have been ignored.
The irrationality ground would, at first sight, appear the one most likely to succeed, but the great difficulty is in proving that a sensible person could not have made such a decision.
But should the court side with the insurers, it has a range of powers; from setting out its own opinion of the situation, to forcing certain parts of the decision to be changed, or even overturning the decision altogether.
