Empirical Study of 'Cart' Judicial Reviews
26 Pages Posted: 7 May 2021 Last revised: 12 May 2021
Date Written: May 3, 2021
I scrutinise the empirical analysis of 'Cart' judicial reviews (‘Cart JRs’) that led the Independent Review of Administrative Law (‘IRAL’ or ‘Review’) to conclude that 'continued expenditure of judicial resources on considering applications for a Cart JR cannot be defended, and that the practice of making and considering such applications should be discontinued'. Moreover, I present the results of an unprecedented empirical study of Upper Tribunal decisions that allowed me to estimate much more reliable rates of success in Cart JRs as well as respond to some other concerns about cost and effectiveness of that procedure.
The empirical findings on success rates of Cart judicial reviews presented in the IRAL Report are erroneous and cannot constitute a basis for policy conclusions.
Adopting IRAL’s definition of a ‘positive result’ of a Cart JR, I estimated that the rate of positive results of Cart JRs for 2017-2019 lies between 2.3% and 9.2%, perhaps close to 7.6%. The maximum of the estimate includes all cases that could have possibly settled favourably to the claimant, whereas the 7.6% figure is adjusted for the rate of claims that likely settled favourably – following the same method I adopted to estimate rates of success of non-Cart JRs. This is at least over ten times greater than the rate calculated by the Review (0.22%), but lower than the success rate (including likely favourable settlements) in non-Cart JRs (which I estimated at roughly a third of claims lodged).
It is true that there is a lower rate of permissions to apply for judicial review granted in Cart cases: Cart claims have been granted permission at a rate of 6-7% annually since 2017, compared with 17-19% in non-Cart JR claims. However, the difference is (1) arguably not very big and (2) may be explained by the fact that Cart claims have a different, much higher, ‘second appeals’ test for permission.
Finally, despite some suggestions (not by IRAL) that Cart JRs are often ‘spurious’, it is hard to sustain a claim that Cart JRs are ‘spurious’ at a higher rate than non Cart JRs. I found that Cart JRs are being classified as ‘totally without merit’ at a lower rate than non-Cart judicial reviews (in the High Court).
Keywords: UK administrative law, empirical legal studies, judicial review, legal reform
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