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To celebrate the 20-year anniversary of the Public Law Project's annual conference in 2023, hosted by HSF, we looked back at how commercial judicial review has developed over that time alongside Tim Ward KC of Monckton Chambers.

In this article we consider the standard of review in commercial regulatory cases, in particular the way the level of scrutiny a court might afford has evolved over the last 20 years.

We trace the story from the early days of Cellcom cautioning against impugning decisions of expert and experienced regulators, through an apparent high point and then on to more recent cases. We also hone in on a number of telecoms cases that grappled with the issue of how the courts should police the decisions of regulators in a technical area.

We conclude that traditional deference in rationality review is still very much the norm despite the sliding scale and the need to flex that standard of review in situations requiring more scrutiny. In practice, the courts and tribunals are likely to exercise considerable deference where evaluative judgments are made by regulators, particularly in the economic sphere. The acknowledged scope for such judgment making may also be expanding. The clear message for prospective claimants is that hard edged errors of law, logic or process are likely to be needed to found a successful challenge.

The notion of courts' desire to respect the boundaries of judicial review and the need to avoid encroaching into policy making and judgement calls best left to democratically accountable decision makers has an important constitutional foundation. However equally important from a constitutional perspective is the need for the courts to properly fulfil their role as a check and balance against Executive power, and it is vital that the notion of due deference does not undermine the effectiveness of that role over the next 20 years, particularly as regulated industries grapple with novel and complex issues such as increased ESG regulation and the onset of AI.

Andrew Lidbetter photo

Andrew Lidbetter

Partner, London

Andrew Lidbetter
Nusrat Zar photo

Nusrat Zar

Partner, London

Nusrat Zar
Jasveer Randhawa photo

Jasveer Randhawa

Professional Support Consultant, London

Jasveer Randhawa

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Andrew Lidbetter photo

Andrew Lidbetter

Partner, London

Andrew Lidbetter
Nusrat Zar photo

Nusrat Zar

Partner, London

Nusrat Zar
Jasveer Randhawa photo

Jasveer Randhawa

Professional Support Consultant, London

Jasveer Randhawa
Andrew Lidbetter Nusrat Zar Jasveer Randhawa