Conditional quashing orders: A missed opportunity for introducing a new relief in judicial review proceedings?

Abstract

This article discusses the opportunity for the introduction of a new type of relief in judicial review proceedings called conditional quashing orders (CQOs) to mitigate the effect of quashing orders on the timeline and costs of nationally significant infrastructure projects (NSIPs). The article explores the benefits and disbenefits of their introduction as a new standard relief and as a court case management power as two possible alternatives. In so doing, the article examines how CQOs could operate and attempts to draw clear parameters for them to achieve their aim of introducing more judicial flexibility in judicial review proceedings. In framing the debate and attempting to build a theoretical framework for CQOs to function, this article considers developments in other jurisdictions, notably Kenya, to inform the discussion while engaging critically with the interaction of CQOs in both alternatives with the current legislative framework. Altogether, the article defends a thesis whereby while CQOs have obvious advantages offering more possibilities for judicial flexibility and mitigation of the effect of quashing orders (which are disruptive to the timeline and cost of NSIPs), they carry overwhelming inconveniences. These, in turn, do not warrant their introduction into legislation. However, the article demonstrates that the aims underpinning CQOs remain useful as they call for a complete rethink of judicial review proceedings in England and Wales to ensure a better balance of justice or convenience by reinforcing fairness, flexibility, and judicial restraint and cooperation in the determination of cases. In fine, the article makes several proposals to achieve this and transform the current judicial review blueprint, thus providing food for thought for reforming the system and emphasising proportionality.