Hostname: page-component-74656f9884-kv2lp Total loading time: 0 Render date: 2026-11-04T12:36:32.880Z Has data issue: false hasContentIssue false
  • English
  • Français

JUDICIAL REVIEW AND CIVIL APPEALS: COMMON GROUNDS

Published online by Cambridge University Press:  07 October 2026

Adam Perry
Adam Perry*
Affiliation:
Professor of Law, Faculty of Law, University of Oxford; Garrick Tutor and Fellow, Brasenose College.
*
Address for Correspondence: Brasenose College, Radcliffe Square, Oxford, OX1 4AJ, UK. Email: adam.perry@law.ox.ac.uk.

Abstract

A civil appeal from a judicial decision is different from a judicial review of an administrative decision. But how are they different, exactly? One common view is that the grounds of appeal are more extensive than the common law grounds of judicial review. Specifically, appeal concerns the merits of a decision whereas review concerns only its legality. I argue that this common view is false. All the grounds of appeal are, in fact, also grounds of review. The implication is that review concerns the merits of a decision at least as much as appeal does.

Keywords

appealjudicial reviewcivil procedureunreasonablenessmerits review

Information

Type
Articles
Information
The Cambridge Law Journal , First View , pp. 1 - 20
Creative Commons
Creative Common License - CCCreative Common License - BYCreative Common License - NCCreative Common License - ND
This is an Open Access article, distributed under the terms of the Creative Commons Attribution-NonCommercial-NoDerivatives licence (https://creativecommons.org/licenses/by-nc-nd/4.0/), which permits non-commercial re-use, distribution, and reproduction in any medium, provided that no alterations are made and the original article is properly cited. The written permission of Cambridge University Press or the rights holder(s) must be obtained prior to any commercial use and/or adaptation of the article.
Copyright
© The Author(s), 2026. Published by Cambridge University Press on behalf of The Faculty of Law, University of Cambridge

I. Introduction

One of the orthodoxies of administrative law is that appeal is different from judicial review. Appeal and review are “quite different”, said Lord Hoffmann.Footnote 1 They are “entirely different”, insisted Lord Fraser.Footnote 2 Christopher Forsyth and Julian Ghosh describe them as “radically different”.Footnote 3 But how are appeal and review different, exactly? The most common answer is that the grounds of appeal are more extensive or generous than the grounds of review. The usual way to spell out this answer is to say that review is limited to an inspection of the legality of a public body’s decision or the procedure by which it was made. By contrast, appeal also concerns the “merits” of a lower court’s decision.Footnote 4

In this article, I argue against this common view. I consider the grounds of civil appeals (other than to the Supreme Court) in detail. In each case, I find that there is a comparable ground of judicial review. The grounds of judicial review are therefore at least as extensive as the grounds of civil appeal. In other words, the “common grounds” between the two procedures include all the grounds of appeal. This conclusion has several important implications, one of which is that judicial review concerns the merits of decisions to at least the same extent that appeal does.

Here is how I proceed. I assume a familiarity with judicial review grounds and procedure. Appeals, however, are not often studied or taught. So, in Section II, I describe some of the main types of appeal and explain which is my focus here. Sections III–V are the heart of the article. There I show that every ground of appeal has a corresponding ground of review and offer an explanation for the “convergence”Footnote 5 of the two sets of grounds. Section VI rejects the dogma that judicial review concerns the legality of decisions rather than their merits. Section VII states the real differences between appeal and review. Section VIII concludes by exploring two of the argument’s wider implications.

II. Types of Appeals

Appeals are either on criminal or civil matters. Within the category of appeals on civil matters, there are appeals to courts (e.g. the High Court) and appeals to administrative bodies (e.g. tribunals).Footnote 6 An appeal to a court on a civil matter is called a “civil appeal”. Civil appeals can be brought against the decision of a lower court or, if a specific statute allows, against the decision of an administrative body. In the latter case the appeal is termed a “statutory appeal”.

When courts say that judicial review is different from “appeal”, what kind of appeal do they have in mind? Sometimes, it is unclear.Footnote 7 But often courts mean to compare judicial review with appeals to courts, that is, civil appeals. For instance, when Lord Hoffmann said that judicial review and appeal are “quite different”, it was while discussing leave to appeal to an appellate court.Footnote 8 When Lord Kerr claimed that judicial review “cannot partake of the nature of an appeal”, he had in mind an appeal to an “appeal body or court”.Footnote 9 There are other, similar examples.Footnote 10

It is not realistic to compare the grounds of judicial review with many different sets of grounds of appeal in a single article. Fortunately, Civil Procedure Rules (“CPR”), Part 52 establishes a unified set of grounds of appeal for all civil appeals other than to the Supreme Court.Footnote 11 In what follows, I will focus on appeals governed by Part 52. This means I will not discuss internal administrative appeals or appeals to the Supreme Court. While I recognise that statute may modify the grounds of appeal for certain types of civil appeals, here I abstract from those differences to focus on the default CPR grounds.Footnote 12

In what follows, I follow the CPR and use “appeal court” to refer to the court to which an appeal is made and “lower court” for the body from which an appeal to a court is brought.Footnote 13 When I say “appeal”, I mean “civil appeal to a court other than the Supreme Court”.

III. “Wrong”

As I said, Part 52 sets out a unified set of grounds of appeal. Specifically, Rule 52.21(3) says that an appeal will be allowed if and only if a decision is (1) “wrong” or (2) “unjust because of a serious procedural or other irregularity”. I consider the first of these general grounds (that a decision is “wrong”) in this section and the second (“serious procedural or other irregularity”) in the next section.

The term “wrong” is not defined in the CPR. However, it is interpreted in the White Book and elsewhere to include three types of errors: errors of law, errors of fact and errors as to the exercise of discretion.Footnote 14 I discuss these specific grounds below, showing that in each case there is a corresponding ground of judicial review. (By “grounds of judicial review”, I mean common law grounds and not, for example, review for compliance with the European Convention on Human Rights. And I mean common law grounds that apply by default, even if in a particular context those grounds are displaced or overridden, e.g. by an ouster clause.)

A. Error of Law

An appeal will be allowed if the lower court made a material misdirection of law.Footnote 15 When a lower court interpreted a section of a statute in a way that simply duplicated an earlier section, for example, it committed a reversible error of law.Footnote 16 A material misunderstanding of a common law rule is also grounds for appeal. For instance, when a judge misunderstood who had the burden of proof to show that a testator had capacity to make a will, he committed an error of law and the appeal against his decision was allowed.Footnote 17

Error of law is, of course, also a ground of judicial review. If a public authority commits an error of law and that error is “relevant”Footnote 18 to its ultimate decision, the court will normally quash the decision. The point has been well established since at least the House of Lords’ decision in R. v Lord President of the Privy Council, ex. p. Page.Footnote 19 As Lord Griffiths said in that case: “In the case of bodies other than courts, in so far as they are required to apply the law they are required to apply the law correctly. If they apply the law incorrectly they have not performed their duty correctly and judicial review is available to correct their error of law.”Footnote 20

A reviewing court does not, subject to limited exceptions, defer to a public authority’s determination of the law.Footnote 21 It does not matter if the authority’s interpretation was “reasonable”;Footnote 22 what matters is whether it is correct, in the eyes of the court. In the same way, an appeal court does not defer to a lower court’s determination of the law (though it does not “strain”Footnote 23 to disagree with its determination either).

B. Error of Discretion

Lower courts are often granted discretion to make decisions. Appeal courts have “always been very slow to interfere with such decisions”Footnote 24 but they are prepared to interfere with discretionary decisions in at least three circumstances, each of which has a parallel in judicial review.

First, a lower court must not fetter or deny a discretionary power. As Lord Greene M.R. said in Egerton v Jones,Footnote 25 “the discretion of the Court is not to be fettered by rules. The discretion is given by statute and must be exercised according to the circumstances of each particular case”.Footnote 26 In R. v Home Secretary, ex. p. Venables and Thompson,Footnote 27 Lord Browne-Wilkinson described the rule against fettering of administrative discretion in very similar terms. A “statutory power,” he explained, “must be exercised on each occasion in light of the circumstances of that time.”Footnote 28

Second, that a lower court takes into account an irrelevant consideration or fails to take into a relevant consideration is ground for appeal.Footnote 29 In Ward v James, Denning L.J. asked: “in what circumstances will the Court of Appeal interfere with the discretion of the judge?”Footnote 30 His answer, in part, was that ‘[the court] will interfere if it can see that the judge has given no weight […] to those considerations which ought to have weighed with him […]. Conversely it will interfere if it can see that he has been influenced by other considerations which ought not to have weighed with him.”Footnote 31

To illustrate, in Wolley v Ministry for Justice,Footnote 32 the County Court judge set the budget for the plaintiff’s costs without giving any weight to the agreed budget for the defendant’s costs. Plainly, though, the defendant’s costs were a “relevant consideration”Footnote 33 because the parties would be in court the same amount of time. Failing to take this consideration into account was an error of discretion. The appeal was therefore allowed. The same types of error – failing to have regard to a relevant consideration or having regard to an irrelevant consideration – are well-known grounds of judicial review. Indeed, these grounds “form the bread and butter of administrative law”.Footnote 34

The third type of error of discretion takes more explaining. In Bellenden v Satterthwaite,Footnote 35 Asquith L.J. said that an appellate court could not interfere simply whenever it disagreed with a lower court’s exercise of discretion. Rather, “[i]t is only where the decision exceeds the generous ambit within which reasonable disagreement is possible and is, in fact, plainly wrong, that an appellate body is entitled to interfere”.Footnote 36

This statement has been endorsed many times since, including in what has become the leading case on the matter, G v G.Footnote 37 The dispute in G v G concerned custody of two young children. The first instance judge had awarded custody to the father instead of the mother, based on the presence in the father’s house of an elder daughter devoted to the two younger children. The Court of Appeal dismissed an appeal. In the House of Lords, Lord Fraser (with whom the other lords agreed) explained that the trial judge was faced with a difficult decision between several options, “any one of which might reasonably be thought to be the best”.Footnote 38 After quoting Asquith L.J.’s remarks in Bellenden v Satterthwaite, Lord Fraser said that an appellate court should not intervene when a first instance judge merely preferred a different “imperfect solution”Footnote 39 to the one an appellate court would have preferred. Rather, an appellate court should interfere only when the first instance judge went beyond the “generous ambit within which reasonable disagreement was possible”.Footnote 40 On this basis, the appeal was dismissed.

In judicial review, exercises of discretion are, of course, reviewable for unreasonableness. In Associated Picture Houses Ltd. v Wednesbury Corp., it was said to be unlawful for an authority to make a decision “so unreasonable that no reasonable authority could ever have come to it”.Footnote 41 The House of Lords later expressed the Wednesbury standard more simply as whether a decision is outside the “range of reasonable decisions open to the decision-maker”.Footnote 42

Is the Wednesbury standard the same as the standard articulated in Bellenden v Satterthwaite and endorsed in G v G? First appearances suggest the answer is “yes”. Both standards regulate the exercise of discretion. Both strike a balance between the need for deference to an initial decision maker and the need to prevent errors. Both are framed in terms of what is “reasonable”. It is natural, as a result, to think that the two questions – “is a decision Wednesbury unreasonable?” and “is a decision beyond the scope of reasonable disagreement?” – are two ways of asking the same thing.

This is the conclusion that commentators have reached. According to John Eekelaar, to say that the G v G standard is met “is surely to say no more, nor less, than that [the judge’s] decision was one which no reasonable judge could make”,Footnote 43 which is the “the same [test] as that usually associated with the Wednesbury principles”.Footnote 44 Caroline Forder and Robert Ward say that the difference between the two tests is “merely semantic”.Footnote 45 The two tests are “comparable”,Footnote 46 says Katrina Yates.

The difficulty is that the House of Lords in G v G insisted that the tests are different.Footnote 47 Lord Fraser quoted from a Court of Appeal decision in which a dissenting judge had said that the question on appeal was whether the judge at first instance had followed a course “no reasonable judge having taken into account all the relevant circumstances could have adopted”.Footnote 48 Lord Fraser then said:

That is the test which the court applies in deciding whether it is entitled to exercise judicial control over the decision of an administrative body: see the well-known case of Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 K.B. 223. It is not the appropriate test for deciding whether the Court of Appeal is entitled to interfere with the decision made by a judge in the exercise of his discretion.Footnote 49

It is clear from this passage that Lord Fraser thought that there was a difference between the test applied in judicial review cases and the one applied on appeal. What is the difference, exactly? Lord Fraser did not say. A possible answer was suggested, however, by Lord Bridge in a concurring judgment. His lordship said that the distinction between the standards in G v G and Wednesbury was admittedly a “fine one”.Footnote 50 It was still important to distinguish them, he said, because the grounds for interference with discretion in judicial review proceedings were “more restricted”Footnote 51 than on appeal. The implication is that the G v G standard allows for intervention in more circumstances than the standard in Wednesbury.

So, we have standards that seem to be very similar, but which the House of Lords said were different. Is there any way to reconcile these points? One possibility was suggested by Brennan J. of the High Court of Australia in Norbis v Norbis.Footnote 52 After quoting the passage above from Lord Bridge, Brennan J. said that there is “no distinction in principle”Footnote 53 between appellate review of judicial discretion and judicial review of administrative discretion. There is a difference, but it lies in the standards’ application. As an appellate court is familiar with exercises of judicial discretion, it will be “more confident”Footnote 54 second-guessing a lower court’s exercise of discretion. It will be slower to question an administrative body’s discretionary use of a power “of which the court has no experience”.Footnote 55 This is an attractive proposal. It explains both why the test in G v G strikes so many commentators as indistinguishable from the test in Wednesbury and why one might think that an appellate court is less “restricted” than a reviewing court when assessing the exercise of discretion.

Here is another way to reconcile the apparent similarity of the two tests with the House of Lords’ insistence in G v G that the two are different. Remember that G v G was decided in 1985. Let us grant for the sake of argument that, at that time, Wednesbury represented a more restricted standard than the one Lord Fraser and Lord Bridge had in mind. It does not follow that now, 40 years later, the two standards are still different. In the meantime, Wednesbury unreasonableness has developed. Three points are especially important. First, Wednesbury unreasonableness is now seen as a variable standard, which is more or less intrusive depending on contextual factors.Footnote 56 Second, those contextual factors include the relative experience and expertise of the initial decision maker.Footnote 57 Thus, Wednesbury will be a fairly undemanding standard when an initial decision maker is relatively expert and experienced, but a fairly demanding standard when the initial decision maker does not enjoy the same advantages. Third, in general, Wednesbury is a more intrusive standard than it once was.Footnote 58 Putting these points together, even if the Wednesbury standard circa-1985 was more restricted than the G v G standard, the Wednesbury standard of today need not be. Moreover, we would expect the Wednesbury standard to apply more rigorously in the judicial context than in the administrative context. That is because lower courts are not more expert or practised at exercising judicial discretion than are appellate courts.

If Brennan J. was right, then Wednesbury was always the standard for appellate review of discretionary decisions by lower courts. If my second suggestion is correct, then Wednesbury is today the standard for review of such decisions, even if it was not initially. Either way, Wednesbury is the standard now. I draw support for this conclusion from the fact that English courts have often assumed that something like it is true. For example, in Eagil Trust Co. Ltd. v Pigott-Brown,Footnote 59 Griffiths L.J. said that discretionary decisions can only be “attacked on what are colloquially known as ‘Wednesbury’ grounds”.Footnote 60 In Noorani v Merseyside TEC Ltd.,Footnote 61 Henry L.J. said of an appeal against a discretionary decision that “[s]uch decisions are, essentially, challengeable only on what loosely may be called Wednesbury grounds […] [including] where the conclusion reached was ‘outside the generous ambit within which reasonable disagreement is possible’, see G v G”.Footnote 62 After reviewing the recent authorities, Mostyn J. reached a similar conclusion: “There is a high degree of equivalence between an appeal against an exercise of discretion and a Wednesbury challenge to a regulatory decision.”Footnote 63

C. Error of Fact

I turn now to errors of fact. There are five recognised types of errors of fact that will ground a successful appeal. All have an equivalent in judicial review.

First, an appeal will be allowed if a material finding of fact is based on no evidence.Footnote 64 A good example is AA (Uganda) v Secretary of State for the Home Department.Footnote 65 The Home Secretary sought to return AA to Kampala in Uganda. AA challenged that decision. She had no support network in the city, she said. Opportunities were so limited that she would be consigned to work as a “bar girl/sex worker”.Footnote 66 The trial judge rejected that argument. AA had been involved in church in the UK. She could get support from the church in Kampala as well, the judge claimed. The Court of Appeal disagreed. “There was,” Buxton L.J. said, “no evidence from which [the lower court judge] could properly conclude that the church would make a difference to AA’s life in Kampala.”Footnote 67 There was an “absence of any real evidence to justify the finding”,Footnote 68 said Carnwath L.J., as he then was. There “was no evidence” for the judge’s conclusion, according to Lloyd L.J.; it was “pure speculation”.Footnote 69 The appeal was allowed.Footnote 70

The same error – basing a material finding of fact on no evidence – is an established ground of judicial review.Footnote 71 In R. (on the Application of Beresford) v Sunderland City Council,Footnote 72 for instance, an area of land had been used as a town green for 25 years. When the applicant tried to register the land as a green, the council refused. It said that the land was not used as a green “as of right”, but pursuant to an “implied licence” granted by the council. On an application for judicial review, the refusal was quashed. In allowing the appeal, Lord Bingham explained that there was “nothing in the material before the council to support the conclusion that […] [use of the land] had been otherwise than of right”.Footnote 73 Similarly, in R. (on the Application of Lancashire County Council) v Secretary of State for Energy, Food, and Rural Affairs,Footnote 74 the Supreme Court upheld a challenge to an inspector’s conclusion that areas of land had not been held for educational purposes. There was “no evidence to support any [such] inference”,Footnote 75 said Lord Carnwath and Lord Sales (with whom Lady Black agreed). “An assessment made without supporting evidence cannot stand.”Footnote 76

Second, a lower court failing to consider relevant evidence is a ground for appeal.Footnote 77 Likewise, a public authority’s failure to consider relevant evidence is a ground of review.Footnote 78 Consider R. (on the Application of W) v Secretary of State for the Home Department.Footnote 79 The claimant wanted indefinite leave to remain. The Home Office refused because of concerns about the claimant’s involvement in a terrorist plot. The claimant said that the Home Secretary had failed to consider his poor intellectual functioning (which would have tended to mitigate any involvement in the plot). The court agreed that this was an error. The Home Secretary “was not entitled to leave out of account the […] evidence about intellectual functioning”.Footnote 80 Because he had “failed to consider relevant material”,Footnote 81 the decision was quashed.

Third, a failure to make a finding of fact on a crucial issue is a ground of both appeal and judicial review.Footnote 82 In Lloyds TSB Bank Plc. v Hayward,Footnote 83 for example, the trial judge had failed to make a finding as to when a crucial document was written. This meant the decision was “fundamentally flawed”.Footnote 84 The same type of error was committed in R. (on the Application of A) v Independent Appeal Panel for Sutton L.B.C.Footnote 85 A student was permanently excluded from school for selling what the buyers and Head Teacher believed to be cannabis. The student appealed to an Independent Appeal Panel. Part of his defence was that he had not sold cannabis but an herbal mixture that looked like cannabis. The panel upheld the exclusion without making any finding as to whether, in fact, what the student had sold was cannabis. That was an error, Hickinbottom J. held. The nature of the substance sold was relevant to whether permanent exclusion was a reasonable sanction and the panel was bound to reach a conclusion as to whether it was cannabis. Its decision was accordingly quashed.

Fourth, E v Secretary of State for the Home Department established mistake of fact leading to unfairness as a ground of appeal.Footnote 86 Such a mistake occurs, Carnwath L.J. said, if there has been a mistake as to an existing and material fact, which is uncontentious and objectively verifiable, where the person alleging the mistake was not responsible for it and there was a shared interest in cooperating to achieve a correct result.Footnote 87 E v Home Department was a statutory appeal case. But it was clear that Carnwath L.J. also understood mistake of fact leading to unfairness as a ground of judicial review.Footnote 88 And it is “now well established […] that an error of fact resulting in unfairness can be asserted as a separate ground of challenge on judicial review”.Footnote 89

Fifth, a court will allow an appeal if a finding of fact is unreasonable or perverse (the two terms are used interchangeably).Footnote 90 The same test is applied in judicial review cases. Thus, in R. v Hillingdon L.B.C., ex. p. Puhlhofer (a judicial review case), Lord Brightman said that:

[w]here the existence or non-existence of a fact is left to the judgment and discretion of a public body […] it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely. Footnote 91

Later cases have applied the standard described in R. v ex. p. Puhlhofer. For example, in R. (on the Application of Javed) v Secretary of State for the Home Department,Footnote 92 the Home Secretary purported to designate Pakistan a country where there was no “serious risk of persecution”. But the Home Secretary could not have “reasonably reached that conclusion”Footnote 93 based on the evidence before him. The decision was quashed.

Sometimes, courts say that a “plainly wrong” determination of fact is a ground for appeal.Footnote 94 That is admittedly not language commonly found in judicial review. However, when pressed, courts have explained that “plainly wrong” means a finding of fact that “no reasonable judge could have reached”Footnote 95 or one that is “outside the bounds within which reasonable disagreement is possible”.Footnote 96 On that interpretation, a “plainly wrong” finding is an unreasonable decision. That makes it part of the previous ground (i.e. an unreasonable or perverse factual finding).

IV. “Serious procedural or other irregularity”

So far, I have discussed the ways in which a decision can be “wrong” for the purposes of CPR 52.21(3)(a). In addition, under CPR 52.21(3)(b), an appeal will be allowed if a lower court’s decision is “unjust because of a serious procedural or other irregularity”. Three types of errors fall under this category: bias, lack of fair hearing and failure to give reasons.

A. Bias

Starting with bias, an appeal will be allowed if the lower court was actually biased, automatically disqualified or would appear biased to a fair-minded and informed observer. Precisely the same grounds are also grounds of judicial review. Indeed, most of the leading cases in judicial review proceedings are cases involving bias in judicial or quasi-judicial contexts.Footnote 97 The suggestion that there was a significant difference in the approach to bias in judicial and administrative contexts was “crisply rejected”Footnote 98 by Sedley J. in R. v Secretary of State for the Environment, ex. p. Kirkstall Valley Campaign Ltd.Footnote 99

B. Lack of a Fair Hearing

A lower court’s decision may also be unjust due to the lack of a fair hearing. A fair hearing requires notice of relevant claims and the opportunity to make representations. For example, in Jenkinson v Robertson,Footnote 100 a personal injury case, the lower court found that the plaintiff had been “fundamentally dishonest” about the nature of his injuries and accordingly dismissed his claim. As the plaintiff had not been given adequate notice of the defendant’s claim of fundamental dishonesty, the appeal was allowed. A fair hearing also requires the opportunity to make representations. In Labrouche v Frey,Footnote 101 for instance, it was a serious procedural irregularity for the judge to reject an application to strike out a claim without giving the applicants the chance to be heard on the matter. While an oral hearing is not always necessary, justice requires an oral hearing on important matters and when an applicant has been led to expect an oral hearing.Footnote 102 Of course, lack of a fair hearing is also a ground of judicial review. Notice that the opportunity to make representations, right of cross-examination and so on are all familiar requirements on judicial review. Moreover, in both the appeal and judicial review cases, courts have repeatedly emphasised that the content of a fair hearing is context sensitive.Footnote 103

C. Failure to Give Reasons

Failure to give reasons may also make a decision “unjust” for the purposes of CPR 52.21(3)(b).Footnote 104 In the judicial context, the leading case is English v Emery Reimbold & Strick Ltd., where the Court of Appeal said that the crucial thing is that it be “apparent to the parties why one has won and the other has lost”.Footnote 105 This need not require the lower court to discuss every issue and argument raised. But “the issues the resolution of which were vital to the judge’s conclusion should be identified and the manner in which he resolved them explained”.Footnote 106 The lower court’s judgment in English v Emery Reimbold & Strick was “a lamentable document”,Footnote 107 “in places unintelligible”,Footnote 108 giving “little indication of the process of reasoning that led to the result”.Footnote 109 The appeal was allowed. Failing to give reasons can also ground a successful application for judicial review. There is typically a duty to give reasons for administrative decisions which affect important interests, which are aberrant or which depart from an authority’s previous positions.Footnote 110

In judicial review, courts have denied that there is a “general” common law duty on administrative officials to give reasons.Footnote 111 That may seem like an important difference with appellate review of judicial decisions. But caution is called for because “general” is ambiguous. If a “general” duty is a universal duty, then of course there is no general duty to give reasons for administrative decisions. But there is also no such general – that is, universal – duty to give reasons for judicial decisions.Footnote 112 Indeed, the lack of a general duty to give reasons in the judicial review context has sometimes been justified by the lack of a comparable duty in the judicial context.Footnote 113 Another possibility is that a “general” duty is one that applies in a majority of cases. In that event, whether there is a general duty to give reasons is an empirical, not a doctrinal, question.Footnote 114

A third possibility is that a “general” duty applies by default: there is a duty to give reasons except if there is a justification for not giving reasons. There may be such a “general” duty to give reasons for judicial decisions. But the same may be true for administrative decisions. In 2002, Tuckey L.J. said that “trend of the law [in judicial review] has been towards an increased recognition of the duty to give reasons”.Footnote 115 More recently, Elias L.J. said that it appeared that “in general they [i.e. reasons] should be given unless there is proper justification for not doing so”.Footnote 116

V. The Grounds of Civil Appeals Are Grounds of Judicial Review

I earlier explained that CPR Part 52 sets out two broad bases for civil appeals: that a lower court’s decision was “wrong” or suffered from a “serious procedural or other irregularity”. Section III showed that all the grounds that make a decision “wrong” are also grounds of judicial review. Section IV did the same for the specific grounds falling under “serious procedural or other irregularity”. I conclude that all the grounds of civil appeals, other than to the Supreme Court, are also grounds of judicial review.

I grant that these grounds may apply differently in civil appeal and judicial review proceedings. For example, unreasonableness may apply with less intensity in review contexts. Oral hearings will more often be required in appellate contexts, as will reasons. These grounds may also apply differently depending on whether a civil appeal is from a judicial or administrative decision. Such differences do not threaten my conclusion. That is because a ground remains the same even if the context makes a difference to how it applies and what it demands. Consider an analogy. Within judicial review, context makes a difference to how courts apply the Wednesbury unreasonableness standard. The standard is applied more or less rigorously depending on factors such as the nature of the interest affected and the qualifications of the decision maker. Despite the variability in its application, Wednesbury unreasonableness is a single ground of judicial review. We could say the same thing about the requirement of a fair hearing. What form of hearing is required will depend on all the circumstances: the nature of the affected interest, the costs to the public body, the potential for a more accurate decision and so on. Nonetheless, fair hearing is a single ground of judicial review. In the same way, the grounds of appeal are also grounds of review, even though those grounds may apply differently in the appeal and review contexts.

Why is the close similarity between the grounds of civil appeals and the grounds of judicial review so often denied? It is hard to know for sure, but a possible explanation is that there used to be more to be said for the view that appeal is more extensive than judicial review. Observe two converging trends. One trend is towards greater intrusiveness in judicial review. Review for error of law used to be limited to jurisdictional errors and errors on the face of the record. Today, review is available for essentially all errors of law. Review for error of fact has expanded to include review for unreasonable factual findings and mistakes of fact giving rise to unfairness. There is also greater willingness to interfere with discretionary decisions, partly through a more intense Wednesbury standard. New grounds to supervise legitimate expectations, policies and consultation have been invented.

The other trend is for appeal to become somewhat less intrusive. Appeal courts have been “repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so”.Footnote 117 Something similar is true of appellate interference with exercises of discretion, particularly regarding case management, where the role of an appeal court is now merely to act a “longstop”.Footnote 118 Taking these two trends together, perhaps review and appeal have converged. That would suggest that the common view is best explained as a holdover from an earlier time.

Although my conclusion – that the grounds of civil appeal are also grounds of review – is unorthodox, I think that, on reflection, it has a natural explanation, namely, that the two procedures share many underlying features. In both cases, there is an initial use of public and usually coercive power. That cries out for oversight. In both cases, oversight is provided by a judicial body. In both cases, the initial decision is typically made by a body better placed to make findings of fact than lower courts. In both contexts, efficiency favours not making the initial decision a mere “dress rehearsal”Footnote 119 for the oversight stage. Finally, the grounds of civil appeal and review are both largely judicial creations and reflect what judges think are legitimate bases for intervention.Footnote 120 Given these similarities, it might be more notable if the grounds of appeal and review were very different.

VI. Legality and Merits

I said in Section I that it is common to claim that the grounds of judicial review are narrower than the grounds of appeal. There is one very popular way to spell that claim out. It is to say that judicial review concerns only the legality of a decision and appeal concerns its merits. For example, Lord Kerr said that “appeal is different from a review of the legal entitlement to make a decision” because “it involves an examination of what decision should be taken in the dispute between the parties”.Footnote 121 Lord Hoffmann said that judicial review “is concerned with the legality rather than merits of the decision”.Footnote 122 Adam Tomkins says that “in a claim for judicial review, the claimant is not appealing against the merits of what the administrative has done, but is rather seeking a review of the legality of what has been done”.Footnote 123 Forsyth and Ghosh write: “On an appeal the question is ‘right or wrong?’ On review the question is ‘lawful or unlawful?’.”Footnote 124 There are a great many other statements to the same effect.Footnote 125

This claim – that judicial review concerns a decision’s legality and appeals its merits – is repeated so often, and with so little argument, it has become a dogma. Given the discussion in the last three sections, we can see that the dogma is incorrect. The reason is simple: judicial review also concerns the merits of decisions. This is obvious when it comes to the review of discretionary decisions. The reviewing court will ask whether the use of discretion was Wednesbury unreasonable. That inquiry forces the court to consider the “weight and balance”Footnote 126 of the reasons for and against the decision – that is, the merits and demerits of the decision. As Philip Joseph says, “[c]hallenges mounted on the ground of unreasonableness are wholly antithetical to […] [an] appeal/review distinction’ in terms of merits versus legality or procedure”.Footnote 127

One might grant that judicial review is concerned with the merits of discretionary decisions but point out that a reviewing judge will not ask whether a discretionary decision is correct. That is, the reviewing judge will not ask what he or she thinks the relevant reasons favour and then impose that result on the public body. However, this does not distinguish review from appeal. The reason is that an appeal court does not ask whether a discretionary decision is correct either. It asks whether the decision is beyond the scope of reasonable disagreement. This, as I have said, is the same as asking whether it is unreasonable.

Moreover, in the ways that an appeal court is concerned with the correctness of an initial decision, so is a reviewing court. An appeal court will ask whether the initial decision maker understood the law correctly. So will a reviewing court. An appeal court will ask if the initial proceedings were procedurally fair, in its own estimation. That is what a reviewing court will ask, too.

Here is a possible defence of the dogma.Footnote 128 True, the defender will say, reviewing courts consider the merits of discretionary administrative decisions. But note why reviewing courts consider the merits of such decisions. They do so because errors of discretion can qualify as errors of law. Reviewing courts are always concerned with the legality of decisions. It is just that, sometimes, they need to attend to the merits of decisions to determine their legality. By contrast, an appeal court is not concerned with the merits of a lower court’s decision simply for what it says about the decision’s legality. An appeal court is interested in the merits of the decision as an independent basis for intervention.

That is how the defence might go. The problem is its artificiality. At one time, courts treated an unreasonable exercise of discretion as proof that a public authority misdirected itself in law. But, as Lord Diplock said in Council of Civil Services Union v Minister for Civil Service, resort to such “ingenious” explanations “is today no longer needed”.Footnote 129 “‘Irrationality’ by now can stand upon its own two feet as an accepted ground […] [of] judicial review.”Footnote 130 In other words, reviewing courts are concerned with the merits of discretionary decisions in their own right and not simply as a means of identifying misdirections in law.

Why has this dogma persisted? One possibility is that people do not see that it is false. If so, I hope that the discussion in the earlier parts of the article will help to correct the misunderstanding. There are other, more speculative possibilities. Perhaps it serves a useful purpose to say that judicial review concerns the legality and not the merits of a decision. It may remind judges not to substitute their judgment for an authority’s.Footnote 131 The dogma may also serve as a kind of “fig-leaf”.Footnote 132 The fig-leaf does not deceive; that is not its purpose. The purpose is to preserve the constitutional proprieties. By saying that judicial review concerns legality and not merits, judges can robustly review administrative action without openly challenging the “balance of powers between the elected and non-elected”Footnote 133 branches of government.

VII. Real Differences

I have rejected several claimed differences between appeal and review. That does not mean the two procedures are the same; they are not. There are at least four real differences between the two procedures. (I restrict myself to differences of contemporary doctrinal relevance. Of course, appeal and review have different origins and histories.)

First, there are different procedural requirements. Appeal and review have different time limits, permission requirements, costs rules and so on. Second, the processes have different constitutional bases: appeal is a statutory creation, whereas review is the exercise of inherent jurisdiction. These differences are well known and I will not labour them.

The third difference concerns remedies. A successful claim in judicial review normally leads to a quashing order. It is then open to the initial decision maker to make a new decision (or, sometimes, to do nothing). By contrast, an appeal court is not limited to referring matters back to a lower court. Subject to any special statutory provision, the appeal court can affirm, set aside or vary any order made or given by the lower court.Footnote 134 The usual way to express this point is that appeal allows for a “substitution of judgment”.Footnote 135

While remission versus substitution does mark a difference between review and appeal, we should not exaggerate the point. For one thing, reviewing courts do have some formal powers of substitution. Under Senior Courts Act 1981, ss. 31(5) and (5A), if the High Court quashes a decision by a tribunal or other court for an error of law and there is only one lawful decision open to the lower body, then the High Court may “substitute its own decision for the decision in question”.Footnote 136 In addition, reviewing courts may effectively substitute their view for a public authority’s by issuing a mandatory order. Some mandatory orders leave a public authority with a degree of discretion about how to comply with the order. But others do not. In the latter case, the court’s order leaves the authority with no choice what to do.Footnote 137

Fourth, judicial review is, as it sounds like, a review of the initial decision. The reviewing court does not decide the issues itself. It merely looks to see whether the public authority erred. What about on appeal? Under CPR 52.21(1), an appeal can take the form of either a review or a rehearing. In an appeal by way of review the court will scrutinise the lower court’s judgment and interfere only if it identifies an error.Footnote 138 But on a rehearing the appeal court “will hear the case again”.Footnote 139 It will decide “afresh”Footnote 140 what to do.

Although the possibility of a rehearing marks a genuine difference between appeal and review, two points are worth bearing in mind. One is that the “general rule” is that an appeal is “limited to a review”.Footnote 141 Exceptions to the general rule arise only when a Practice Direction or the interests of justice demand a rehearing.Footnote 142 These conditions are usually met only if an appeal is from a body that did not hold a hearing or consider evidence.Footnote 143 Further, even in a rehearing, CPR 52.21(3) – the rule that an appeal will be allowed if the lower court’s decision is “wrong” or unjust due to a “serious procedural or other irregularity” – continues to apply. A rehearing is not an invitation to an appeal court to impose its own preferred decision, nor does it mark any difference in the grounds of appeal.Footnote 144

VIII. Implications

Let me end by mentioning two possible implications of my claim that the grounds of judicial review are no less extensive than the grounds of civil appeals.

Appeals are, as I said, a statutory creation. Courts have said that they are aware of the danger of creating an appeal mechanism when Parliament has not chosen to create one. For example, Lord Templeman said in R. v Independent Television Commission, ex. p. TSW Broadcasting Ltd. that “[w]here Parliament has not provided for an appeal from a decision maker the courts must not invent that appeal machinery”.Footnote 145 However, if my analysis is correct and judicial review is in substance “appeal machinery”, then the courts have not heeded their own warning. They have invented what Parliament refrained from providing. For those who think that judicial review is meant to give effect to legislative intent, the implication is that courts have exceeded their constitutional role.

The other implication is conceptual and explanatory. Lower courts are very different from the type of administrative bodies that are normally subject to judicial review (boards, departments, councils, etc.). Lower courts have different expertise than most administrative bodies. They often exercise non-statutory powers, unlike most administrative bodies. They do not enjoy democratic legitimacy. And yet, if my analysis is correct, the decisions of lower courts and administrative bodies are supervised on almost all the same grounds. That tells us that at least most grounds of review are not best explained by any of the distinctive features of administrative bodies (e.g. democratic legitimacy). Instead, the grounds of review must be explained by reference to features that administrative bodies share with lower courts. I gave some possible examples of these features in Section V (e.g. better access to evidence).

Footnotes

For helpful comments, I thank Thomas Adams, John Bowers, Sam Dayan, Timothy Endicott, Elizabeth Fisher, Angelo Ryu, Robert Thomas and three anonymous reviewers.

References

1 Kemper Reinsurance Company v Minister of Finance [1998] UKPC 22, [2000] 1 A.C. 1, at [18].

2 R. v Entry Clearance Officer, ex. p. Amin [1983] 2 A.C. 818, 829 (H.L.).

3 C.F. Forsyth and I.J. Ghosh, Wade & Forsyth’s Administrative Law, 12th ed. (Oxford 2023), 16.

4 E.g. R. (on the Application of Haralambous) v St. Albans Crown Court [2018] UKSC 1, [2018] A.C. 236, at [56] (Lord Mance); Michalak v General Medical Council [2017] UKSC 71, [2017] 1 W.L.R. 4193, at [20]–[21] (Lord Kerr).

5 M.B. Rodriguez Ferrere, “The Functional Convergence of Appeal and Judicial Review” [2016] New Zealand Law Review 157.

6 The appeal routes to the Supreme Court are set down in the Constitutional Reform Act 2005, s. 40. The appeal routes to other courts are provided for in Access to Justice Act 1999 (Destination of Appeals) Order 2000, SI 2000/1071; Access to Justice Act 1999 (Destination of Appeals) Order 2016, SI 2016/917. For a helpful chart, see Ministry of Justice, “Civil Procedure Rules – Rules and Directions”, Practice Direction 52A, s. 3.5, available at https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part52/pd_part52 (last accessed 9 June 2026).

7 E.g. General Medical Council v Spackman [1943] A.C. 627, 640 (H.L.) (Lord Wright).

8 Kemper Reinsurance v Minister of Finance [1998] UKPC 22, at [18].

9 Michalak v General Medical Council [2017] UKSC 71, at [20]–[21].

10 See e.g. R. v Inland Revenue Commissioner, ex. p. Rossminster Ltd. [1980] A.C. 952, 1013F–G (H.L.) (Lord Diplock); Hussain v General Pharmaceutical Council [2018] EWCA Civ 22, [2018] Med. L.R. 113, at [70] (Singh L.J.).

11 The scope of Part 52 is set out in Rule 52.1. There is a clear statement of the wide applicability of Part 52, including to statutory appeals from administrative bodies, in E.I. Du Pont de Nemours & Co. v S.T. Dupont [2003] EWCA Civ 1368, [2006] 1 W.L.R. 2793, at [92] (May L.J.). Additional rules applicable to statutory appeals are found in Ministry of Justice, “Civil Procedure Rules”, Practice Direction 52D.

12 One of the most common limits is that an appeal is limited to a “point of law”. It is generally understood, however, that appeals on points of law include all judicial review grounds, on which see James v Hertsmere Borough Council [2020] EWCA Civ 489, [2020] 1 W.L.R. 3606, at [31] (Peter Jackson L.J.).

13 Ministry of Justice, “Civil Procedure Rules”, Rule 52.1.

14 Lord Justice Coulson, The White Book, vol. 1 (London 2025), 1905; see also M. Burton (ed.), Civil Appeals, 2nd ed. (London 2013), 120; Ali v Solicitors Regulation Authority Ltd. [2021] EWHC 2709 (Admin), at [94] (Morris J.).

15 R. (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982, [2005] Imm. A.R. 535, at [9] (Brooke L.J.).

16 Trennery v West (Her Majesty’s Inspector of Taxes) [2005] UKHL 5, [2005] 1 All E.R. 827.

17 Lonsdale v Teasdale [2021] EWHC 2342 (Ch), [2021] W.T.L.R. 1309.

18 R. v Lord President of the Privy Council, ex. p. Page [1993] A.C. 682 (H.L.), interpreting Anisminic Ltd. v Foreign Compensation Commission [1969] 2 A.C. 147 (H.L.).

19 [1993] A.C. 682, 693 (Lord Griffiths), 702 (Lord Browne-Wilkinson) (describing the “general rule […] that decisions affected by errors of law made by tribunals or inferior courts can be quashed”).

20 Ibid., at 693B.

21 E.g. there is an exception for the interpretations of certain areas of “domestic law” by visitors: ibid., at 702–3 (Lord Browne-Wilkinson); R. v Visitors to the Inns of Court, ex. p. Calder and Persaud [1994] Q.B. 1, 40F (Sir Donald Nicholl V.-C.).

22 R (on the Application of Akester) v Department for Environment, Food, and Rural Affairs [2010] EWHC 232 (Admin), [2010] Env. L.R. 33, at [82] (Owens J.).

23 Rugby Joinery UK Ltd. v Whitfield [2005] EWCA Civ 561, [2006] P.I.Q.R. Q2, at [43] (Neuberger L.J.)

24 H. Brooke, D. Di Mambro and L. Di Mambro (eds.), Manual of Civil Appeals, 2nd ed. (London 2004), 44.

25 [1939] 2 K.B. 702 (C.A.).

26 Ibid., at 705; see also Crowther v Elgood (1887) 34 Ch. D. 691, 697 (Cotton L.J.).

27 [1988] A.C. 407.

28 Ibid., at 496. The leading case is British Oxygen Co. Ltd. v Minister of Technology [1971] A.C. 610 (H.L.).

29 AEI Rediffusion Music Ltd. v Phonographic Performance Ltd. [1999] 1 W.L.R. 1507, 1523C–D (C.A.) (Lord Woolf M.R.); Clin v Walter Lilly & Co. Ltd. [2021] EWCA Civ 136, [2021] 1 W.L.R. 2753, at [86] (Carr L.J.).

30 [1965] 1 Q.B. 273, 293 (C.A.).

31 Ibid.; see also In re F (A Minor) (Wardship: Appeal) [1976] Fam. 238, 251–52 (C.A.) (Stamp L.J.).

32 [2024] EWHC 304 (K.B.), [2024] Costs L.R. 1311.

33 Ibid., at [64] (Kerr J.).

34 M. Elliott and J. Varuhas, Administrative Law, 5th ed. (Oxford 2017), 237.

35 [1948] 1 All E.R. 343 (C.A.).

36 Ibid., at 345.

37 G v G (Minors: Custody Appeal) [1985] 1 W.L.R. 647 (H.L.).

38 Ibid., at 651G.

39 Ibid., at 652E.

40 Ibid.

41 [1948] 1 K.B. 223, 230 (C.A.) (Lord Greene M.R.).

42 Boddington v British Transport Police [1999] 2 A.C. 143, 175 (H.L.) (Lord Steyn); see also R. (on the Application of the Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin), [2019] 1 W.L.R. 1649, at [98] (Leggatt L.J. and Carr J.).

43 J. Eekelaar, “Custody Appeals” (1985) 48 M.L.R. 704, 705.

44 Ibid., at 704–5.

45 C. Forder and R. Ward, “Child Custody Appeals: The Search for Principle” [1987] C.L.J. 489, 497.

46 K. Yates, “Appealing the Discretionary Grant or Refusal of Relief in Judicial Review Proceedings” [2009] Judicial Review 129, 130.

47 To similar effect, see Tsai v Woodworth (1984) 81 L.S.G. 44 (C.A.).

48 In re F [1976] Fam. 238, 254 (Stamp L.J.), cited in G v G [1985] 1 W.L.R. 647, 653.

49 G v G [1985] 1 W.L.R. 647, 653.

50 Ibid., at 656.

51 Ibid.

52 [1986] HCA 17, (1986) 161 C.L.R. 513.

53 Ibid., at 540.

54 Ibid., at 541.

55 Ibid.

56 E.g. Bugdaycay v Secretary of State for the Home Department [1987] A.C. 514, 531 (H.L.) (Lord Bridge); R. v Secretary of State for the Environment, ex. p. Nottinghamshire County Council [1986] 1 A.C. 240 (H.L.).

57 R. (on the Application of British Union for the Abolition of Vivisection) v Secretary of State for the Home Department [2008] EWCA Civ 417; see also R. v Ministry of Defence, ex. p. Smith [1996] Q.B. 517, 556 (C.A.) (Sir Bingham M.R.); International Transport Roth GmbH v Secretary of State for the Home Department [2002] EWCA Civ 158, [2003] Q.B. 728.

58 For a review of this evolution, see P. Craig, Administrative Law, 10th ed. (London 2025), 654–57.

59 [1985] 3 All E.R. 119 (C.A.).

60 Ibid., at 121.

61 [1999] I.R.L.R. 184 (C.A.).

62 Ibid.

63 R. (on the Application of Wales and West Utilities Ltd.) v Competition and Markets Authority [2022] EWHC 2940 (Admin), at [43].

64 Edwards (Inspector of Taxes) v Bairstow [1956] A.C. 14, 36 (Lord Radcliffe); Begum v Tower Hamlets L.B.C. [2003] UKHL 5, [2003] 2 A.C. 430, at [7] (Lord Bingham), [99] (Lord Millett).

65 [2008] EWCA Civ 579, [2008] I.N.L.R. 307.

66 Ibid., at [10].

67 Ibid., at [13].

68 Ibid., at [40].

69 Ibid., at [54].

70 Ibid., at [14], [36].

71 R. (Iran) v Home Department [2005] EWCA 982, at [11] (Brooke L.J.); R. v Hillingdon L.B.C., ex. p. Islam [1981] 3 W.L.R. 942, 954 (H.L.) (Lord Lowry).

72 [2003] UKHL 60, [2004] 1 A.C. 889.

73 Ibid., at [8] (emphasis added). To similar effect, see at [51] (Lord Scott), [60] (Lord Rodger), [83] (Lord Walker).

74 [2019] UKSC 58, [2021] A.C. 194.

75 Ibid., at [32].

76 Ibid.

77 Simplex GE (Holdings) Ltd. v Secretary of State for the Environment (1989) 57 P. & C.R. 306 (C.A.); Henderson v Foxworth Investments Ltd. [2014] UKSC 41, [2014] 1 W.L.R. 2600, at [67] (Lord Reed).

78 R. (on the Application of Bukartyk) v Welwyn Hatfield Borough Council [2019] EWHC 3480 (Admin), [2020] H.L.R. 19, at [48] (Mr. Grodzinski Q.C.); R. v Housing Benefit Review Board of the London Borough of Sutton, ex. p. Keegan (1995) 27 H.L.R. 92, 100.

79 [2019] EWHC 254 (Admin).

80 Ibid., at [43] (Dingemans J.).

81 Ibid., at [45] (Dingemans J.).

82 For ground of appeal, see Coleman v Dunlop Ltd. (No. 1) [1998] PIQR P398; for judicial review, see R. (on the Application of Delaney) v Parole Board for England and Wales [2019] EWHC 779 (Admin).

83 [2002] EWCA Civ 1813.

84 Ibid., at [66] (Jonathan Parker L.J.).

85 [2009] EWHC 1223.

86 [2004] EWCA Civ 49, [2004] Q.B. 1044.

87 Ibid., at [66].

88 Ibid., at [42].

89 A. Gask, “Other Grounds of Judicial Review” in M. Supperstone et al. (eds.), Judicial Review, 6th ed. (London 2017), 517.

90 Edwards v Bairstow [1956] A.C. 14, 36 (H.L.) (Lord Radcliffe); Miftari v Secretary of State for the Home Department [2005] EWCA Civ 481, at [10] (Buxton L.J.), [36] (Keene L.J.) (both equating perversity and unreasonableness); CA v Secretary of State for the Home Department [2004] EWCA Civ 1165, [2004] Imm. A.R. 640, at [27] (Laws L.J.): “perversity under the Wednesbury principle.”

91 [1986] A.C. 484, 518 (H.L.) (emphasis added).

92 [2001] EWCA Civ 789, [2002] Q.B. 129.

93 Ibid., at [73] (Lord Phillips M.R.).

94 McGraddie v McGraddie [2013] UKSC 58, [2013] 1 W.L.R. 2477, at [2] (Lord Reed (with whom Lord Neuberger, Lady Hale, Lord Wilson and Lord Hughes agree)); Henderson v Foxworth Investments Ltd. [2014] UKSC 41, [2014] 1 W.L.R. 2600, at [61] (Lord Reed (with whom Lord Kerr, Lord Sumption, Lord Carnwath and Lord Toulson agree)). For discussion, see A. Perry, “Plainly Wrong” (2023) 86 M.L.R. 122.

95 Henderson v Foxworth Investments [2014] UKSC 41, at [62].

96 Kwok Kin Kwok v Yao Juan [2022] UKPC 52, [2023] 1 B.C.L.C. 213, at [40] (Dame Geraldine Andrews (with whom Lord Briggs, Lord Kitchin, Lady Rose and Lord Richards agree)).

97 E.g. R. v Gough (Robert) [1993] A.C. 646 (H.L.); Locabail (UK) Ltd. v Bayfield Properties Ltd. [2000] Q.B. 451 (C.A.).

98 Forsyth and Ghosh, Administrative Law, 376.

99 [1996] J.P.L. 1042, 1052.

100 [2022] EWHC 791 (Q.B.), [2022] 4 W.L.R. 46.

101 [2012] EWCA Civ 881, [2012] 1 W.L.R. 3160.

102 Deeds v Various Respondents [2013] EWCA Civ 1678, at [23] (Lewison L.J.).

103 E.g. Lloyd v McMahon [1987] 1 All E.R. 1118, 1161 (H.L.).

104 Hicks Developments Ltd. v Chaplin [2007] EWHC 141 (Ch), [2007] 1 E.G.L.R. 1, at [24] (Briggs J.).

105 [2002] EWCA Civ 605, [2002] 1 W.L.R. 2409, at [16] (Lord Phillips M.R.).

106 Ibid., at [19].

107 Ibid., at [33].

108 Ibid.

109 Ibid., at [53].

110 On important interests, see R. v Secretary for the Home Department, ex. p. Doody [1994] 1 A.C. 531 (H.L.); on aberrant decisions, see R. v Higher Education Funding Council, ex. p. Institute for Dental Surgery [1994] 1 W.L.R. 242, 261 (Sedley J.); on decisions that depart from authority, see R. (on the Application of Oakley) v South Cambridgeshire D.C. [2017] EWCA Civ 71, [2017] 1 W.L.R. 3765, at [56] (Elias L.J.).

111 E.g. R. v ex. p. Doody [1994] 1 A.C. 531, 564 (Lord Mustill); Dover District Council v Campaign to Protect Rural England (Kent) [2017] UKSC 79, [2018] 1 W.L.R. 108, at [51] (Lord Carnwath).

112 Eagil Trust v Pigott-Brown [1985] 3 All E.R. 119, 122; Flannery v Halifax Estate Agencies Ltd. [2000] 1 W.L.R. 377, 381 (C.A.); English v Emery Reimbold & Strick Ltd. [2002] EWCA Civ 605, [2002] 1 W.L.R. 2409, at [8]–[14].

113 I. Hare et al. (eds.), De Smith’s Judicial Review, 9th ed. (London 2023), at [9]–[122].

114 For a discussion of the many circumstances in which administrators are required to give reasons, especially under statute, see J. Bell, “Reason-Giving in Administrative Law: Where Are We and Why Have the Courts Not Embraced a General Duty to Give Reasons?” (2019) 82 M.L.R. 983, especially 998–99.

115 North Range Shipping Ltd. v Seatrans Shipping Corp. [2002] EWCA Civ 405, [2002] 1 W.L.R. 2397, at [15].

116 R. (on the Application of Oakley) v South Cambridgeshire D.C. [2017] EWCA Civ 71, [2017] 1 W.L.R. 3765, at [30].

117 Fage UK Ltd. v Chobani UK Ltd. [2014] EWCA Civ 5, [2014] E.T.M.R. 26, at [114] (Lewison L.J.).

118 E.g. Bansal v Cheema [2001] C.P. Rep. 6 (C.A.), at [27] (Brooke L.J.); see also A.A.S. Zuckerman, Zuckerman on Civil Procedure: Principles of Practice, 4th ed. (London 2021), 1290–93.

119 Fage v Chobani [2014] EWCA Civ 5, at [114] (Lewison L.J.).

120 The point is common ground between common law and modified ultra vires theories of judicial review. See the contributions to C. Forsyth (ed.), Judicial Review and the Constitution (London 2000).

121 Michalak v General Medical Council [2017] UKSC 71, at [30] (emphasis in original).

122 Kemper Reinsurance v Minister of Finance [1998] UKPC 22, at [18].

123 A. Tomkins, Public Law (Oxford 2003), 170.

124 Forsyth and Ghosh, Administrative Law, 16.

125 E.g. R. (on the Application of Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214, [2020] P.T.S.R. 1446, at [273] (Lindblom L.J., Singh L.J., Haddon-Cave L.J.); R. (on the Application of Shoesmith) v Ofsted [2011] EWCA Civ 642, [2011] P.T.S.R. 1459, at [74] (Maurice Kay L.J.); R. Gordon, Judicial Review: Law and Procedure, 2nd ed. (London 1996), 124; A. Young, Turpin and Tomkins’ British Government and the Constitution, 8th ed. (Cambridge 2021), 787.

126 Kennedy v Charity Commission [2014] UKSC 20, [2015] A.C. 455, at [54] (Lord Mance).

127 P. Joseph, Constitutional and Administrative Law in New Zealand, 4th ed. (London 2014), 864.

128 My thanks to Angelo Ryu for suggesting this line of argument to me.

129 [1985] 1 A.C. 374, 410 (H.L.).

130 Ibid., at 411.

131 See M. Fordham, Judicial Review Handbook, 7th ed. (London 2020), 203–7, where the claim that judicial review is about legality not merits is thought of as a warning against the “forbidden substitutionary approach” to judicial review.

132 I borrow the metaphor from C. Forsyth, “Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review” [1996] C.L.J. 122, 136.

133 Ibid.

134 Ministry of Justice, “Civil Procedure Rules”, Rule 52.20.

135 Michalak v General Medical Council [2017] UKSC 71, at [20]–[21] (Lord Kerr); R. v Entry Clearance Officer, ex. p. Amin [1983] 2 A.C. 818, 829 (H.L.) (Lord Fraser).

136 A good example of substitution under Senior Courts Act 1981, s. 31 is R. (on the Application of Chief Constable of Northumbria Police) v The Police Appeals Tribunal [2019] EWHC 3352 (Admin), at [70] (Freedman J.). The High Court also has a power of substitution in relation to sentences by certain courts under Senior Courts Act 1981, s. 43.

137 R. (on the Application of ClientEarth) v Secretary of State for Environment, Food, and Rural Affairs [2015] UKSC 28, [2015] 4 All E.R. 724, at [31] (Lord Carnwath (with whom Lord Neuberger, Lord Mance, Lord Clarke and Lord Sumption agree)).

138 Zuckerman, Civil Procedure, 1275.

139 E.I. Du Pont de Nemours v S.T. Dupont [2003] EWCA Civ 1368, at [96] (Aldous L.J.).

140 Audergon v La Baguette Ltd. [2002] EWCA Civ 10, [2002] C.P. Rep. 27, at [85] (Jonathan Parker L.J.).

141 Tanfern Ltd. v Cameron-MacDonald [2000] 2 All E.R. 801 (C.A.), at [30] (Brooke L.J.).

142 The most important of the practice directions in this respect is PD52D, which lists many types of statutory appeals that are to be heard by way of rehearing.

143 Zuckerman, Civil Procedure, 1289.

144 Meadow v General Medical Council [2006] EWCA Civ 1390, [2007] Q.B. 462, at [128] (Auld L.J.); Hussain v General Pharmaceutical Council [2018] EWCA Civ 22, [2018] Med. L.R. 113, at [30]–[31] (Newey L.J.).

145 [1994] 2 L.R.C. 414, 424 (H.L.); see also R. v Broadcasting Complaints Commission, ex. p. Granada Television Ltd. [1995] E.M.L.R. 163 (C.A.).