Judicial Review is the process by which the courts will review the decisions of bodies that perform public functions. However, not all decision that a public law body makes have a public law nature and there are lots of decisions, for example, entering into a contract for the supply of office equipment that are unlikely to have a public law dimension. It would clearly be wrong if such decisions could be challenged just because the decision was made by a public body, because it would give entities purely governed by private law an unfair advantage in their dealings with public bodies. In the majority of cases, deciding whether a decision is purely a private, as opposed to public law decision, is relatively easy. In the recent case of R (on the application of Ames) v The Lord Chancellor  EWHC 2250 (Admin) a claim was brought by a defendant involved in criminal proceedings who sought legal aid to meet his legal costs. The costs in questions related to his representation in the proceedings by two barristers. The case involved a complex fraud trial that was due to take around 70 days to hear and the review of up to 120,000 pages of spreadsheets and a total of 100m pages of defence material. In such cases, because the fees are potentially so high, the Lord Chancellor's Department will seek to agree a fixed fee for representation in advance. However, in this instance, it was not possible to reach agreement and a claim for Judicial Review was made . This was based on the Lord Chancellor's Department's unwillingness to make a higher offer, which it was alleged was irrational/unreasonable in a public law sense. The Court agreed with the claimant and in the course of doing so helpfully set out a six point test for determining whether a decision of a public body is amenable to Judicial Review (see below).
First, there is no universal test of when a decision will have a sufficient public law element to make it amenable to judicial review. It is a question of degree. Secondly, in deciding whether a particular impugned decision is amenable to judicial review, the court must have regard not only to the nature, context and consequences of the decision, but also to the grounds on which the decision is challenged. There is, we think, a risk of an element of circularity in this approach: to an extent, in deciding whether the decision is amenable to judicial review, the court is looking to the merits of the claim for judicial review which the claimant wishes to put forward. Nonetheless, the nature of the challenge may shed light on the extent to which the decision is of a public rather than a private nature. Thirdly, the fact that the decision is made by a public body exercising a statutory power will not in itself be a conclusive indication that there is a sufficient public law element: a government body may negotiate commercial contracts without inevitably becoming subject to judicial review. Fourthly, and conversely, the fact that the challenged decision relates to payments to be made by a public authority pursuant to a contract will not in itself be a conclusive indication that there is no sufficient public law element. Fifthly, it will be necessary to consider whether the challenged decision is one which is necessarily involved in the performance of a public function, or is merely incidental or supplementary to a public function. Sixthly, if the decision does not have a sufficient public law element to make it amenable to judicial review, the fact that the aggrieved party has no other avenue of appeal is not a reason for treating the decision as if it were public law decision.