1) Judicial Review Flashcards
1
Q
What does JR concern?
A
Checking the exercise of public power
* Not the merits of a decision
* But whether correct in accordance with the law
2
Q
What is the difference between an appeal and a JR
A
- Courts do not substitute their own decision
- Can direct the decision to be made in the correct way
3
Q
Factors limiting on the availability fo judicial review
A
Five preliminary issues
* Amenability
* Procedural exclusivity
* Standing
* Time limits
* Ouster clauses
4
Q
Amenability
A
- Only public law decisions are amenable to judicial review
- eg when relates to public body carrying out a public function through exercise of statutory power]
- Also excercise of prerogatice powers following GCHQ
5
Q
Following which case was it held JR could examine the exercise of prerogative powers?
A
- GCHQ
6
Q
Examples of public bodies
A
- Central gov depts
- Local authorities
- Inferior courts
- Statutory bodies - Highways Agency
7
Q
Define Judicial Review
A
A claim to review the lawfulness of… a decision, action or failure to act in relation to the exercise of a public function.
The Civil Procedure Rules
8
Q
What is meant by the Broadened Scope of JR
A
- Non-public bodies that nevertheless contain a “public” element
- Can be subject to JR
- Case: R v Panel on Take Overs and Mergers, ex parte Datafin
9
Q
R v Panel on Take-overs and Mergers, ex parte Datafin
FACTS
A
- Panel on Take-overs and Mergers was a self-regulatory body created by the financial services industry in the City of London
- Unincorporated association with no legal personality and no statutory bodies
10
Q
R v Panel on Take-overs and Mergers, ex parte Datafin
HELD
A
- Should be subject to JR
- Body performing public law functions
- Important aspect of national, economic life, and deemed to be exercising a governmental type function
11
Q
Are Regulatory Authorities subject to JR?
A
- Generally amenable to JR if functions = sufficiently public and governmental
- “But for” Test: Amenable to JR, had there not been a self-regulatory authority already in existence, Parliament would need one.
12
Q
Regualtory Authority Cases
A
- R v Advertising Standards Authoirity Ltd, Ex parte Insurance Services plc
- R v Bar Council ex Parte Percival
13
Q
- R v Advertising Standards Authoirity Ltd, Ex parte Insurance Services plc
A
- “But for” Test: Amenable to JR, had there not been a self-regulatory authority already in existence, Parliament would need one.
14
Q
R v Bar Council ex parte Percival
A
The Bar council was found to be subject to review
15
Q
Which regulatory authorities have been found not be amenable to JR?
A
- Sporting and religious regulation
R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan
16
Q
R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan
A
- No sense governmental
- Private rights
- Action for a declaration, an injunction and damages
No need to restort to judicial review
17
Q
R v Chief Rabbi of the United Hebrew Congregationof GB and Commonwealth, ex parte Wachmann
A
- Religion
- Private nature
18
Q
Cases for contracting out
A
Ex parte Goldsmith
R v Partnerships in Care
19
Q
Ex parte Goldsmith
A
Residential care, discharged duty once arranged accommodation by housing association
= purely contractual, not subject to statutory controls
20
Q
R v Partnerships in Care
A
Private psych hosp = exercising a public function. Psychotherapeutic = subject to statutory underpinning
21
Q
Procedural Exclusivity
A
JR isthe exclusive procedure for challenging public law decisions
22
Q
Which cases established a general prcedural rule?
A
- O’ Reilly v Mackman
- Cocks v Thanet
23
Q
General Procedural Rule
A
- JR was the exclusive procedure for challenging Public Law decisions
- Private law Matters are dealt with by ordinary action.
- To bring a public law challenge in another way than JR = abuse of court
24
Q
Exceptions to procedural exclusivity
A
1) Neither party objects to use of private law procedure
2) Contested claim was collateral, arising out of another claim
O’ Reilly v Mackman
25
Mixed claims
More flexible on procedural exclusivity if claim involves both public and private law rights
26
Roy v Kensington and Chelsea and Westminster Family Practitioner
Private law claim not struck out for abuse of process, as case involved public law rights private law elements
**Mixed claims**
27
Clark v University of Lincolnshire and Humberside
## Footnote
Procedure
Pursued private claim, even though involving public issues and private.
**More concerned about whether justly conducted than procedure**
28
Will private bodies who have contracted with a public body to provide services will always be subject to judicial review with respect to decisions concerning those services?
*ex parte Goldsmith* and *Partnerships in Care*.
**No, not always**
29
Modern approach of courts to the procedure to challenge public law decisions....
.....is less preoccupied with the procedure itself and more concerned with whether the protections afforded to public bodies by judicial review have been disregarded.
30
Standing
* Applicant has sufficient interest in the matter to which the application relates
* Pre condition for bring KR
31
Fleet Street Casuals Case
## Footnote
**Test**
* Sufficient interest test = mixed question of law and fact
* Importance of connection between applicants **degree of interest** and **matter in contention **
* liberal approach to standing
32
Sufficient interest test
* mixed question of law and fact
* Importance of **connection** between applicants degree of **interest** and **matter** in contention
* liberal approach to standing
| ***Fleet Street Casuals ***
33
Two Stage Approach to Standing
* Initial permission - turn away hopeless cases
* Full hearing stage - reconsider whether strong enough on is merits
34
Categories of standing for different claimants
* Associations
* Pressure groups
* Individuals
35
Ex parte Liverpool Taxi Fleet Operators Association
* Increase tax licences - despite assurances of consultation to the contrary
* Should have standing, as logical connetion between Association and decision under challenge
**All members were affected - had standing**
36
Case relating to standing of associations
Ex parte Liverpool Taxi Fleet Operators Association
37
Case relating to pressure and interest groups
* Ex parte rose theatre trust co ltd
* Ex Parte Greenpeace Ltd
* Ex parte World Development Movement Ltd
38
Ex Parte Rose Theatre Trust Co Ltd
* Interest group campaigning to have archaeological site listed a ancient monument.
* Relevant interest and expertise
* Refused standing - grouping together to articificially gain standing should not be allowed.
39
Ex parte Greenpeace Ltd
**Standing**
Given to Greenpeace to challenge a licensing decision concerning Sellafield nuclear processing plant Cumbria.
* Expertise and reputation
* Genuine Concern
* 2,500 supporters in Cumbria = arguable affected.
40
Ex parte World Development Movement Ltd
* WDM to challenge decision of the Foreign Secretary to give UK funding to HED
* Importance of vindicating RoL; absence of any other responsible challenger; nature of breach of duty; prominent role of WDM
41
Extent of pressure group interest
* Liberalisation of standing
* Public interest challenger = necessary interest
42
R (Good Law Project and Runnymede Trust) v The PM and SoS of Health and Social Care
* Brings / supports legal cases in public law field
* Not given standing to challenge
1) Claimant interests and aims too broad to have standing = Good law project
2) Claima t set up to promote cause of racial inequality = specific cause
43
Individuals = concerned citizens
* Individuals with sufficient interest = little difficulty in satisfying the sufficient interest test.
* Concerned citizens - but no particular issue
44
Concerned citizen cases
* Ex parte Rees-Mogg
* Ex parte Dixon
45
* Ex parte Rees-Mogg
Former editor of The Times, held to have standing to challenge EU treaty because of *sincere concern.*
**Held to have standing**
46
Ex parte Dixon
* Not necessary for claimant to est he had a greater right or expectation that other citizens
* JR not about rights **but about wrongs.**
* Entitled to challenge illegality of planning permission
**Not a busybody**
47
Individuals' cases - contrasted
* Ex Parte Rees Mogg
* The Parole Board - more direct challengers than London Mayor
48
The Parole Board
* London Mayor challenge Parole Board decision to allow release of John Worboys
* had genuine concern.
* Distinguished from Rees-Mogg, more directy impacted challengers eg victims
49
Time Limits
Claim must be **promptly** filed
In any event **no later than 3 months after the grounds to make the claim first arose**
* Claim can be refused if not filed promptly, even within 3 months
* Time can only be extended by court, not through party agreement.
50
**Undue delay**
court may refuse relief if will cause substantial hardship
| Senior Courts Act 1981
51
Anisminic
## Footnote
Ouster clause
Ouster clause did not prevent Anisminic from challenging the decision of the Foreign Compensation Commission
Error of law meant that it wasn’t a determination, but a *purported* determination - ouster did not apply
**Very strong presumption, Parliament does not intend to exclude JR**
52
Privacy International
Investigatory Powers Tribunal - **total ouster clause**.
SC held this did not exclude JR.
**Absolutely explicit words needed to exclude JR**
Courts determine the limits set by the rule of law to the power to exclude JR
53
Super ouster clauses
Upheld by court in limited areas and contexts
* *Oceana*
* *LA (Albania)*
54
Partial Ousters
legislative provision that excludes jurisdiction once time limit has expired
55
What does JR check
The exercise of governmental power
56
At what point is JR approproiate?
When there is **no suitable alternative remedies**
Or they have all been exhausted
57
What alternatives might be included
* Statutory right of appeal
* Internal complaints or appeal procedures
* Complaint to an ombudsman
58
If alternative remedies are available, what is the approach of courts?
* May refuse permission to bring the claim or refuse a remedy
| R (Cowl) v Plymouth CC
59
Procedure for bringing a JR Claim
* ***Ex parte*** application for permission
* Permission granted if **"sufficient interest"**, and arguable case
* Full ***inter partes*** hearing
60
Remedies under JR
Quashing Order; Prohibitory Order; Mandatory Order; Declaration; Injunction; damages
61
Prerogative Orders
Quashing; Prohibitory; Mandatory
* **Specific to JR**
62
On what basis can remedies be granted?
* Interim or final basis
63
Quashing Order
The most common remedy.
It **overturns** the impugned decision, and the **public body must then take the decision again**, applying the correct law or following a fair procedure.
64
Prohibitory order
Prevents a public body from acting or continuing to act unlawfully.
65
Mandatory order
Compels the public body to perform a public law duty imposed by law.
66
Declaration
Court may **declare what the legal position** is, or what the rights of the parties are. This does not question the public body’s exercise of the power. Declarations can be made without any other order or alongside other orders.
67
Injunction Order
Orders **a party to perform, or refrain from performing**, a specific act.
Relatively rare. Can be interim relief
68
Damages
May be awarded but only if either
(i) the court is satisfied that damages could have been awarded in a private law action or
(ii) the public body has breached its duties under the HRA 1998.
69
Discretionary remedies
**Key cases**
* Walton v Scottish Ministers
* R(Imam) v LBC
70
Walton v Scottish Ministers
* Judicial discretion on remedies = “necessary counterbalance”
* Bypass the city
* Attenuated quashing order – balance degree of individual interest
71
R(Imam) v LBC
LA has breach statutory duty to provide accommodation for disabled homeless person, but does not have the resources.
Onus on authority to explain why authority should not comply with statutory duty.
Courts should only grant a mandatory order where course is properly justified.
