2020’s news cycle was dominated by a global pandemic and the climactic episodes of an extraordinary US presidency. Despite this, judicial review was never far from the headlines. Cabinet ministers spoke of ‘activist lawyers’ ‘hamstringing the justice system’ or ‘delaying and disrupting’ deportations. Concern persists in public law circles that the government’s Independent Review of Administrative Law – which will examine the use of judicial review to challenge ministerial policy – is an attack on a key plank of the rule of law.
Who are the leading barristers and what are the trends?
At the Chambers UK Bar Guide we wanted to find out which barristers have been the most active (and successful) in using judicial review to challenge decisions of the executive branch, and those who have defended these challenges with the most success. We looked at winning lead counsel in cases heard by the Administrative Court and the appellate courts, over 12-month periods in 2014-15 and 2019-20.
Several trends emerge. In both periods, there was a small cluster of barristers’ chambers which supplied winning lead counsel in the majority of these cases, whether the challenge was successful or not. But their share of wins appears to have increased over time. In 2014-15 the top five most successful sets accounted for 45% of all claimant or defendant wins in judicial review; in 2019-20 this proportion rose to 54%. The sets currently ranked in our Administrative & Public Law section supplied winning lead counsel in 62% of these cases in 2014-15, and 68% in 2019-20. Blackstone Chambers alone accounted for 19% of wins in the later period.
Some of the data suggests the phenomenon is more prominent on the defendant side. In 2019-20 Treasury Devil Sir James Eadie QC represented the government in a massive 23% of judicial reviews it successfully resisted in court – a stratospheric rise from 3% in the earlier period. Apart from being an indication of the huge esteem in which Eadie is held, this could possibly indicate a greater willingness on the part of this government to ‘bring in the big guns’ when its decisions are challenged. Along with Eadie, Lisa Giovanetti QC and Zane Malik appeared amongst the top ten successful lead government counsel in both periods.
Claimant counsel had less success overall in the cases we considered, though in our analysis the proportion of judicial reviews allowed following a hearing rose from 33% to 40% between the two periods (out of a smaller number of cases to reach a hearing in the first place).
Claimant victories were more evenly shared among a spread of barristers. In 2019-20 Richard Drabble QC, David Wolfe QC and Shuh Shin Luh emerged as the most successful of these; between them they acted as lead counsel to the claimants in 17% of successful challenges in this period.
The two most successful sets overall were Landmark Chambers and Blackstone Chambers, but these swapped places between the two periods, with Blackstone taking the top spot in 2019-20. Both sets are well known for their strength acting for both claimants and defendants in judicial review. 11KBW and 39 Essex Chambers appeared in the top five in both periods; Matrix Chambers supplanted Garden Court Chambers to join the group in 2019-20.
Landmark and Matrix were the two most successful on the claimant side in 2019-20 – closely followed by Garden Court, which took the top spot in the earlier period (Garden Court enters our Administrative & Public Law rankings this year). For the government, the top three sets were Blackstone, Landmark and 39 Essex in both periods; 11KBW replaced 1 Crown Office Row in fourth place in 2019-20.
All the barristers and sets featuring in this analysis are ranked in Chambers. See our Administrative & Public Law, Immigration and Planning tables to read more about these barristers and many others.