13 - Judicial Review Flashcards

Question

What are the exceptions to the reviewability of errors of law in judicial review (illegality)?

Answer 1

The House of Lords in R v Lord President of the Privy Council, ex parte Page [1993] confirmed that errors of law are generally reviewable, with three key exceptions: **Error not decisive:** - Courts may refrain from reviewing an error of law if it is not decisive to the outcome. This means that the decision would have been the same without the error. **Special system of rules:** - Courts are often reluctant to intervene when a special system of rules is being interpreted, such as the statutes of an old university (as in ex parte Page). - Courts also avoid reviewing errors of law by inferior courts when Parliament has designated a first-instance decision as final or when the error is by a superior court (e.g., High Court, as in Re Racal Communications Ltd [1981]). **Imprecise statutory language:** - Where the statute provides imprecise terms capable of multiple interpretations, the court may avoid quashing a decision based on a differing interpretation. - **Example**: R v Monopolies Commission, ex parte South Yorkshire Transport Ltd [1993] — the term "substantial part of the United Kingdom" was considered broad, allowing room for various interpretations. Courts will intervene only if the interpretation is irrational, highlighting an overlap with the unreasonableness ground in judicial review.

Answer 2

**Errors of fac**t are generally less amenable to judicial review than errors of law because public authorities have expertise in factual matters. Jurisdictional errors of fact, however, can be reviewed, as they concern fundamental issues affecting the authority’s power to act. There are three types of error of fact which are susceptible to judicial review: * Precedent Facts * No evidence for a Fact * Ignorance or Mistake of an Established Fact **Eample:** R v Secretary of State for the Home Department, ex p Khawaja [1984] AC 74: The Home Secretary had made a jurisdictional error of fact by misjudging a key fact about Khera’s entry into the UK, which affected his authority to remove Khera. This was considered reviewable. Non-jurisdictional errors of fact are generally not reviewable, as courts will defer to the authority’s factual determinations.

Answer 3

A **precedent fact** occurs when a decision-maker's power to decide on a particular issue is dependent on a factual determination being correct: - If the initial factual determination is incorrect, the decision-maker may lack jurisdiction to make the decision. - Example: In White and Collins v Minister of Health [1939], the local authority’s power to compulsorily purchase land was limited to land that was not ‘parkland’. The court found it could review this decision because determining whether the land was parkland was essential to the local authority’s jurisdiction. - In R v Secretary of State for the Home Department, ex parte Khawaja [1984], the Home Secretary’s power to detain someone as an ‘illegal entrant’ depended on the factual determination of that status, making it a reviewable precedent fact.

Answer 4

The no evidence rule permits judicial review if a decision is based on a factual finding that is unsupported by any evidence: - Courts may intervene to overturn decisions where there is an absence of evidence for the factual basis on which the decision relies. - **Example**: In Coleen Properties v Minister of Health and Local Government [1971], a decision to compulsorily purchase a property was contested on the grounds that there was no evidence to justify it. - The inspector’s report had stated it was unnecessary to acquire the property for satisfactory development, yet the decision went against this finding without any evidentiary support, leading the court to set aside the order.

Answer 5

**Ignorance or mistake of an established fact** occurs when a factual misunderstanding affects the evaluation of a decision, potentially rendering it reviewable: - Judicial review may be warranted if a decision is made based on an incorrect understanding of essential facts. - **Example**: In Secretary of State for Education v Tameside MBC [1977], the Education Secretary halted the re-introduction of grammar schools, mistakenly believing this would cause educational chaos. The court found this decision was based on a factual misunderstanding about the effects of the reintroduction, and therefore the decision was reviewed for being based on an incorrect basis of fact.

Answer 6

In E v Secretary of State for the Home Department [2004], the Court of Appeal clarified the conditions under which a mistaken fact could justify judicial review. Carnwath LJ set out a four-part test for establishing that a mistaken fact gave rise to unfairness: 1. There must be a **mistake about an existing fact**, which includes a mistake regarding the availability of evidence on a particular matter. 2. The fact or evidence must be **established**, meaning it is uncontentious and objectively verifiable. 3. The **appellant (or their advisors) must not have been responsible for the mistake**. 4. The mistake must have had a **material impact** on the tribunal’s reasoning, though it need not have been decisive.

Answer 7

**Irrationality** in judicial review requires proof of a **very high degree of unreasonableness.** This high threshold exists because of concerns that ruling on irrationality could lead to the courts judging the merits of a decision rather than whether it was made lawfully. The courts have developed tests over time to assess irrationality, most notably through the **Wednesbury principle**, which set the foundation for understanding what constitutes irrationality.

Answer 8

The Wednesbury principle originates from the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223: - In this case, the owners of a cinema were granted a licence to show films on Sundays, with the condition that no under-15s could be admitted. The owners challenged this condition as unreasonable. - Lord Greene MR established that a decision could be deemed unreasonable if, after considering only relevant factors, the decision made was so unreasonable that no reasonable authority could have made it. - The Court of Appeal upheld the authority’s decision, finding it was not manifestly unreasonable, but the case established the Wednesbury test for unreasonableness, which became the standard for evaluating irrationality for many years.

Answer 9

The Wednesbury test was further refined in CCSU v Minister for Civil Service [1984] UKHL 9: - Lord Diplock explained that for a decision to be irrational, it must be so outrageous in its defiance of logic or accepted moral standards that no sensible person could have arrived at it. - This development made the test for irrationality more stringent, emphasising **extreme unreasonablenes**s as the threshold for judicial review, and marking a shift from simply unreasonable decisions to those that are almost indefensible.

Answer 10

**Yes**, irrationality can still be established under the Wednesbury principle, though it is difficult to prove. - An **example** is Wheeler v Leicester City Council [1985] AC 1054, where Leicester City Council banned a rugby club from using a council-owned recreation ground because three of its players participated in a rugby tour to apartheid-era South Africa. - The House of Lords ruled the council's decision was Wednesbury unreasonable, as the club had acted legally by allowing players to make their own decision about the tour. The council had misused its powers by punishing the club for something it had no legal right to penalise, demonstrating that irrationality can be found when an authority acts beyond its lawful powers.

Answer 11

Intensity of review refers to the degree of scrutiny courts apply to executive decisions in judicial review. This concept is seen as a practical application of the separation of powers, highlighting judicial restraint or intervention based on the subject matter of the decision: - For decisions affecting fundamental or human rights, courts apply a more intense review due to a recognised duty to protect rights. - For broader policy decisions, courts apply less scrutiny to avoid interfering with policy questions reserved for democratically elected officials. The approach is grounded in institutional competence, with courts seen as more experienced in assessing fundamental rights than in making broad government policy decisions.

Answer 12

Courts show reluctance to review decisions on social and economic policy, generally applying a **lower intensity of review.** In these areas, the original Wednesbury standard, with its high threshold, typically still applies. The **super-Wednesbury standard**, coined in Nottinghamshire County Council v Secretary of State for the Environment, denotes a **high degree of deference in political policy matters**, meaning the court will only intervene in exceptional circumstances. In this case, the court refused to intervene in the Environment Secretary’s guidance on public spending limits, viewing it as a matter of political judgement approved by Parliament.

Answer 13

**Proportionality** requires that the means used to achieve a legitimate aim be **no more restrictive than necessary.** This standard has become relevant in UK law due to EU law and European Convention on Human Rights (ECHR) principles. Since the Human Rights Act 1998 (HRA) took effect in 2000, cases involving specific rights under the ECHR are reviewed with proportionality instead of Wednesbury unreasonableness. However, judicial review cases not engaging ECHR rights still use the traditional Wednesbury test.

Answer 14

The **orthodox view** has been that proportionality is not an independent ground for judicial review outside ECHR or EU contexts, as affirmed in R v Secretary of State for the Home Department, ex parte Brind. In Brind, the House of Lords declined to recognise proportionality as an independent ground, instead relying on Wednesbury. However, Lord Cooke has criticised Wednesbury as retrogressive, arguing it only allows for intervention in cases of extreme unreasonableness, potentially limiting judicial review’s scope.

Answer 15

Proportionality generally offers greater intensity of review than Wednesbury unreasonableness, providing a different scope for judicial analysis. - In R (Daly) v Secretary of State for the Home Department, Lord Steyn noted that proportionality could yield different outcomes from Wednesbury because of its higher intensity of scrutiny. **Example**: The applicants in ex parte Smith ultimately succeeded on Article 8 grounds in the European Court of Human Rights, despite their initial failure under the Wednesbury standard in domestic courts. **However**, Pham v Secretary of State for the Home Department signalled a shift in the Supreme Court's engagement with proportionality, marking the court's most direct consideration of this standard to date. - Although proportionality was discussed obiter, it reflects a movement away from viewing proportionality as inherently overly interventionist. - In Youssef v Secretary of State for Foreign and Commonwealth Affairs, Lord Carnwath suggested the need for an authoritative review by the Supreme Court on this topic to provide clearer guidance, as existing concepts like “anxious scrutiny” and “sliding scales” remain imprecise.

Answer 16

Courts apply **higher intensity review** to decisions impacting fundamental rights, given the importance of these issues. This approach, developed in the late 1980s and 1990s, led to the** sub-Wednesbury standard**, where decisions on rights are subjected to **anxious scrutiny** . **Example**: In Bugdaycay v Secretary of State for the Home Department, Lord Bridge stated that courts must apply rigorous examination where an administrative decision risks the applicant’s life, requiring the most anxious scrutiny. In R v Ministry of Defence, ex parte Smith, the court applied heightened scrutiny to a policy dismissing individuals from the armed services based on sexuality. - The court differentiated between high-level policy concerns (e.g., national security) and policies affecting individuals' rights. - Despite the court's careful review, the applicants’ challenge was unsuccessful, as the policy was backed by Parliamentary debate and a significant body of opinion. - This case illustrates the limits of judicial review under sub-Wednesbury even where the court applies intense scrutiny.

Answer 17

The test for irrationality was applied in R (DSD and others) v Parole Board [2018] EWHC 694 (Admin), where the **Parole Board’s decision** to release John Worboys, the "Black Cab Rapist," was challenged. The court found that the decision to release Worboys was **irrational** because the Parole Board failed to further investigate the circumstances of his re-offending. Worboys had admitted to only **12 sexual offences**, but evidence suggested he was involved in over 80 offences, casting doubt on his **credibility** and **reliability**. The Parole Board’s failure to consider this undermined the integrity of the parole decision, leading to the conclusion that the decision was **irrational** and violated basic fairness in the process.

Answer 18

**Irrationality:** Although there is a statutory power to ban parking of cars ‘in such areas as [Redton Borough Council] think[s] fit’, the aim of the legislation was to combat traffic congestion in urban areas. Herbert will argue that banning him from parking on his own driveway is not a rational exercise of that power. Applying the Wednesbury principle from Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, the court must ask itself if it is a decision that no reasonable local authority could have arrived at and, bearing in mind Lord Diplock’s terminology in CCSU v Minister for Civil Service [1984] UKHL 9, if it could be regarded as ‘outrageous in its defiance of logic’. **Other grounds of challenge?** 1. **Delegation**. On the face of it, the exercise of the power by the officer breaches the rule against delegation. However, s 101 of the Local Government Act 1972 allows powers given to local authorities to be exercised by officers on their behalf. 2. **Unauthorised purpose**. As noted above, the power was conferred by Parliament to combat traffic congestion. Preventing Herbert from parking on his driveway does not seem to be part of that purpose (Congreve v Home Office [1976] 1 QB 629).

Answer 19

**Procedural grounds of judicial review** focus on the **procedure** followed in making a decision rather than the decision itself. - This means that a claim under procedural grounds challenges the steps leading to the decision, the circumstances surrounding the decision-making process, or whether the decision-maker followed proper procedure. - **Substantive grounds** focus on the content or outcome of the decision, whereas procedural grounds concern fairness in the decision-making process itself. **Example**: If a claimant says the tribunal made findings about their private life without allowing them to contest them, this would be a procedural challenge, as it addresses the process rather than the outcome.

Answer 20

Claimants should be able to use procedural grounds of challenge to ensure that their case was handled fairly, regardless of whether the decision was right or wrong. Fair procedures are essential to the legitimacy of a decision, as individuals must have confidence that decisions affecting them are made in a fair and just manner. If a decision-making process breaches the procedures set out in the relevant statute or fails to comply with common law rules of natural justice, it can be deemed procedurally ultra vires and therefore invalid. **Example**: If a claimant argues that a tribunal failed to explain why their appeal was refused, this challenge is procedural as it concerns whether the process followed was fair and transparent.

Answer 21

The **rules of natural justice** are **common law** principles, developed by the judiciary, that ensure fairness in decision-making processes. These rules are widely accepted as part of **administrative law** despite controversy regarding their judicial origin, as they are seen as essential to upholding fairness and justice in administrative processes. **Two key rules of natural justice:** 1. **The rule against bias**: Decision-makers must have no personal interest in the outcome of the decision. They should be impartial and free from any conflict of interest. 2. **The right to a fair hearing**: Individuals must have an opportunity to present their case, respond to evidence, and participate in the decision-making process. In the case of Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255, Lord Russell stated that it is implied that Parliament does not authorise decisions that breach the rules of natural justice, and instead requires **compliance** with these principles.

Answer 22

The rule against bias ensures that a decision-maker should have no personal interest in the outcome of a case to preserve fairness and impartiality. The application of the rule depends on whether the interest is direct or indirect. - If the interest is **direct**, the court is typically obliged to quash the decision automatically, as bias is presumed. - **Indirect** interests are evaluated on a case-by-case basis. This rule is essential for maintaining public confidence in the judicial process and ensuring decisions are made impartially.

Answer 23

A direct interest occurs when the decision-maker stands to **gain financially** or has a **personal stake** in the outcome. - **Example: In Dimes v Grand Junction Canal Proprietors (1852)**, the Lord Chancellor, Lord Cottenham, held significant shares in the company involved in the case. When this financial interest was discovered, the House of Lords ruled that he should have been disqualified from hearing the case due to his direct financial interest in the outcome. - **Example: In R v Bow Street Metropolitan Stipendiary Magistrate and Others, ex p Pinochet Ugarte (No 2) [2000],** Lord Hoffmann had a non-pecuniary direct interest because he was an unpaid director of Amnesty International Charity Ltd (AICL), which had been allowed to intervene in the appeal. Despite no financial gain, his connection to Amnesty International led to concerns about his impartiality, and the House of Lords ruled that his involvement was enough to disqualify him from sitting on the panel. A **direct interest** automatically **presumes bias**, and the decision is typically quashed.

Answer 24

Indirect interests occur when the decision-maker has a **personal** or **financial connection** to a party involved in the case, but the **interest does not directly affect them.** Unlike direct interests, the court does not automatically quash the decision; instead, it investigates the relationship between the indirect interest and the decision. The key test for indirect bias is whether a fair-minded and impartial observer would conclude there is a **real possibility of bias**. The court does not consider whether the decision was in fact influenced by bias, but focuses on how the situation appears to an impartial observer. **Examples:** - In Porter v Magill [2002], Dame Shirley Porter, a council leader, was investigated by auditor Magill for alleged abuse of power during a local election. Magill called a press conference before the investigation ended, stating that the initial findings strongly suggested Porter would be found guilty. Dame Shirley argued this put pressure on Magill to ensure he reached the conclusion he had indicated. The House of Lords agreed that calling the press conference was unwise, but did not find evidence of bias. The case established the real possibility of bias test for indirect interests. - In R v Pintori [2007], the appellant appealed a drug conviction on the grounds that one of the jurors had a personal connection with police officers involved in the case. The Court of Appeal found that the fair-minded observer would have concluded there was a real possibility of bias, as the juror’s connection to the police might have influenced the jury’s decision. The appeal was allowed on this basis.

Answer 25

The **right to a fair hearing** is a key principle of natural justice, which requires decision-makers to act in good faith and listen fairly to both sides of a dispute. **Fairness** is flexible and depends on the context of the case. One crucial factor in determining whether a hearing is fair is the **claimant’s interest**, specifically **how much the claimant has to lose**. The court assesses fairness based on three categories of claimants as established in McInnes v Onslow-Fane [1978]: - **Forfeiture cases**: Claimants have the most to lose, such as their livelihood or job. They have been deprived of something they previously enjoyed and are entitled to expect more from their hearing for it to be considered fair. - **Legitimate expectation cases**: Claimants expect an established practice to continue, such as seeking the renewal of a licence or payment, and are entitled to a fair hearing that reflects this expectation. - **Application cases**: Claimants are first-time applicants seeking a licence, membership, or office they have never held. They are entitled to less from their hearing for it to be considered fair.

Answer 26

**Forfeiture cases** involve claimants who stand to lose something significant, such as their job or livelihood, as a result of a decision. These claimants are entitled to more procedural fairness in the decision-making process, including the right to know the case against them. **Example:** - In Ridge v Baldwin [1964] AC 40, Ridge, the Chief Constable of Sussex, was dismissed after an acquittal in a conspiracy case. His dismissal was based on the trial judge’s comments, and Ridge was not informed of the case against him or given a warning. - The House of Lords ruled that Ridge’s dismissal was unlawful because the decision was of special importance (forfeiting his pension rights and livelihood). He was entitled to a fair hearing and at least a chance to know the case against him before the decision to dismiss was made.

Answer 27

**Legitimate expectation** arises when a claimant expects a decision-maker to follow a certain procedure or continue an established practice, based on express promises or regular working practices. **Procedural legitimate expectation** occurs when a decision-maker fails to follow a promised or established procedure. **Example:** - In R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators [1972] 2 QB 299, 300 existing taxi licence holders were assured by the council that they would be consulted before new licences were granted. However, the council granted more licences without consultation, and the taxi drivers challenged the decision. - The Court of Appeal held that the council had a legitimate duty to honour its written promise and could not disregard it. - In cases where a procedural policy has not been publicly disclosed, the Supreme Court in Mandalia v Home Secretary [2015] held that **public bodies must apply internal policies** unless they have a good reason not to, ensuring **fairness** and **consistency** in decision-making.

Answer 28

**Application cases** involve claimants who are first-time applicants for a licence, membership, or office they have never held before. For these claimants, the decision-maker is only required to act honestly and without bias. They are not entitled to as much fairness as in forfeiture or legitimate expectation cases. **Examples:** - In McInnes v Onslow-Fane [1978], McInnes applied several times for a licence to manage boxers. Each application was refused without an oral hearing or reasons. The court ruled that as a first-time applicant, McInnes was not entitled to a fair hearing beyond the requirement for the Board to act honestly and without bias. - In R v Gaming Board, ex p Benaim and Khaida [1970] 2 QB 417, the Court of Appeal ruled that even first-time applicants for a gaming licence were entitled to know the objections against them, but the Board had no duty to provide reasons for its decision beyond that.

Answer 29

The decision affects George’s ability to continue to work as a taxi driver, so this is a forfeiture case. This means that George will be entitled to expect more, including the right to an oral hearing, for the hearing to be considered fair. Specifically, George should have been given notice of the case against him and an opportunity to refute any evidence prior to the decision to revoke his licence, as per Ridge v Baldwin [1964] AC 40. This includes the right to an oral hearing to ensure the decision is fair.

Answer 30

The right to a fair hearing does not always apply in every situation, especially when the decision made is **preliminary**. - In Lewis v Heffer [1978], the national Labour Party suspended local party officers as part of a power struggle. The officers were not given a chance to be heard before the suspension. - The Court of Appeal ruled that the officers were not dismissed yet, only suspended, and since the investigation was at a preliminary stage, the officers had no right to seek judicial review. Therefore, the right to a fair hearing does not apply to decisions that are not final or are part of an ongoing process.

Answer 31

In **forfeiture cases**, the claimant is entitled to **know the case against them** and have the opportunity to **respond** at each stage of the decision-making process. This is crucial because the claimant stands to lose something significant, such as their livelihood or pension rights. **Example:** - Fairmount Investments Ltd v Secretary of State for the Environment [1976] is an example where Fairmount was not given an opportunity to respond to new information (defective foundations) before the decision was made regarding a compulsory purchase order. - The House of Lords ruled that Fairmount was entitled to know the case against them and to have the opportunity to reply before the decision was finalised.

Answer 32

In **legitimate expectation cases**, the nature of the fair hearing depends on the **expectations** created by the decision-maker. If a decision-maker has created an expectation that a particular process or decision will occur, the claimant is entitled to a hearing that reflects this expectation. **Example:** - For example, in R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators, the existing taxi drivers had a legitimate expectation that they would be consulted before new licences were issued. - In such cases, the fairness of the hearing is linked to the specific promise or regular practice established by the decision-maker, requiring them to follow through on that expectation.

Answer 33

In **mere application cases**, the claimant is generally entitled only to have their case heard **honestly** and **without bias**. **Examples:** - McInnes v Onslow-Fane [1978] is an example, where McInnes applied for a licence to manage boxers. Since he was a first-time applicant, the decision-makers were only required to ensure that the process was honest and unbiased. - In some cases, such as R v Gaming Board, ex p Benaim and Khaida [1970], if a decision (such as the refusal of a licence) raises issues concerning the applicant's character, the claimant may be entitled to know the gist of the case against them. However, there is generally less entitlement to procedural fairness in mere application cases.

Answer 34

**No**, the right to a fair hearing does not automatically include the right to receive reasons for a decision. R (Hasan) v Secretary of State for Trade and Industry [2008] confirmed that the law does not recognise a general duty to give reasons for administrative decisions. **Exceptions** exist where the absence of reasons makes a decision appear aberrant or completely wrong.

Answer 35

**Exceptions** to the general rule where reasons must be given include: - When the decision is **aberrant** and** requires explanation**, for example, in R v Civil Service Appeal Board, ex p Cunningham [1991], where a low compensation award "cried out for explanation." - In R v Secretary of State for the Home Department, ex p Doody [1994], where the Home Secretary departed from judicial recommendations on parole tariffs and was required to provide reasons for doing so to ensure fairness. Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] provided further guidance: - Reasons must be given when the **legal subject matter is particularly important** (e.g., personal liberty). - Where the decision appears aberrant, to allow the recipient to understand whether the decision is **challengeable**. However, if the decision is based on academic judgment, like in this case, reasons are not required if the decision is not inexplicable.

Answer 36

**No**, the right to a fair hearing does not always include the right to a full oral hearing in every case. In a **forfeiture case**, claimants are entitled to expect a hearing that may include a full oral hearing, depending on the circumstances. Regardless of the category of case, every claimant is entitled to a hearing that is **fair** and **reasonable** in all the circumstances. Lloyd v McMahon [1987] AC 625: The House of Lords ruled that fairness depends on: - The character of the decision-making body, - The type of decision it must make, and - The statutory or other framework in which it operates. In this case, the District Auditor did not offer an oral hearing but provided detailed reasons for the fine and gave the councillors the opportunity to submit written appeals. The councillors had been warned twice, did not request an oral hearing, and were not prejudiced by the lack of one.

Answer 37

Cross-examination of witnesses is not always required but should be permitted when fairness in the **circumstances demands it.** **Example:** R v Hull Prison Board of Visitors, ex p St Germain (No 2) [1979] 1 WLR 1401 highlighted that fairness may require cross-examination, especially when a party needs to challenge hearsay evidence. - In this case, prisoners argued they were not given a proper opportunity to present their case because they were not allowed to call witnesses and the board relied on statements made by the governor, based on reports from prison officers who had not given oral evidence. - Lane LJ accepted that, while there is discretion on whether cross-examination should be permitted, fairness required cross-examination in this case to allow the prisoners to contest the hearsay evidence presented against them.

Answer 38

The rules of natural justice do not apply where the decision-maker has a **legislative** **rather than a judicial function.** Bates v Lord Hailsham [1972] 1 WLR 1373 confirmed that the rules of natural justice do not apply in these cases. Under s 56 of the Solicitors Act 1957, a committee was empowered to make orders (delegated legislation) regarding solicitor payments. - The Lord Chancellor, Lord Hailsham, sent a draft of the order to the Law Society with a one-month consultation period. - Bates, a solicitor, requested an extension of the consultation period to three months, but Lord Hailsham refused. - Bates sought judicial review of the refusal, but the court found in favour of Lord Hailsham. - The committee’s function was considered legislative, not judicial, so the rules of natural justice did not apply. **Why the rules do not apply**: - Delegated legislation typically affects the public or a section of the public as a whole, rather than having a direct impact on an individual’s specific rights. - Fairness does not require that each member of the public be heard before legislation is made.

Answer 39

**Mandatory requirements**: Failure to comply with these requirements renders the decision invalid on the grounds of procedural ultra vires. **Directory requirements**: Non-compliance does not render the decision invalid. **Example of a mandatory requirement:** - In Bradbury v London Borough of Enfield [1967] 1 WLR 1311, Section 13 of the Education Act 1944 required local education authorities to give notice to the public when closing, opening, or altering schools. - The London Borough of Enfield failed to provide notice during a major school reform. The Court of Appeal found non-compliance with s 13 to be a breach of a mandatory requirement, ruling in favour of eight ratepayers who sought judicial review. **Example of a directory requirement:** - In Coney v Choyce [1975] 1 All ER 979, Section 13(3) of the Education Act 1944 required notice to be given in local newspapers and at or near the main entrance of schools. - The North Nottinghamshire Local Education Authority complied with two of these notice requirements but failed to meet the third. - Despite this, the court found the non-compliance with the third notice requirement to be a breach of a directory requirement rather than a mandatory requirement, as it did not substantially prejudice the claimants.

Answer 40

One important factor is the **wording** of the statute itself, though it is not the only factor. Courts also consider the **impact** of non-compliance on the claimants: - In Bradbury, the London Borough of Enfield failed to provide any notice at all, substantially prejudicing those affected by the school reforms. This was seen as a mandatory requirement because it was an important procedural safeguard. - In Coney, the North Nottinghamshire Local Education Authority did not fully comply with the notice requirements but did place notices in newspapers and conspicuous places. The court concluded that the failure to place notices at school entrances did not substantially prejudice claimants, considering it to be a breach of a directory requirement.

Answer 41

Rather than maintaining a rigid distinction between **mandatory** and **directory** requirements, the court suggested focusing on the **consequences of non-compliance** with a statutory procedure. - Lord Steyn proposed that the court should consider whether Parliament would have intended the decision to be invalid if the procedural requirement was not followed. Essentially, the court should assess whether non-compliance would lead to the invalidity of the decision in the eyes of Parliament. - Lord Carswell agreed that the distinction between mandatory and directory requirements remains a useful starting point. However, ultimately, the court's focus should be on Parliament’s intention: whether the failure to comply with the procedural requirement would render the decision unlawful.

Answer 42

**Substantive legitimate expectation** occurs when a decision-maker leads someone to believe they will receive a **benefit**. In Coughlan, the claimant, after being injured, was assured by the health authority that she could live at Mardon House for the rest of her life. - The health authority later decided to close Mardon House due to cost concerns, but the court found that Mrs Coughlan had a substantive legitimate expectation to remain at the facility. - The court ruled that frustrating this expectation was so unfair that it amounted to an abuse of power. - The court had to weigh the fairness to Mrs Coughlan against any overriding public interest in changing the policy. - Since there was no overriding public interest to justify the closure, the decision to close Mardon House was quashed.

Answer 43

The court will only enforce a **substantive legitimate expectation** if the public body has made a **specific undertaking** to a particular individual or group. The expectation must be based on **clear promises or practices**, such as written or oral assurances. The expectation will be enforced if not doing so would result in **unfairness**, leading to an **abuse of power by the public body**. The court must balance the claimant's fairness against the public interest. - In Coughlan, the claimant had a substantive legitimate expectation based on assurances from the health authority, and there was no overriding public interest to justify breaking this expectation. However, such cases are **exceptional**, and public bodies are generally not legally bound to continue policies that they reasonably decide to change.

Answer 44

Substantive legitimate expectation is difficult to classify under traditional judicial review grounds. It often spans Lord Diplock’s three ‘domestic’ grounds: - **Irrationality** (as in Coughlan when the decision was deemed unfair), - **Procedural impropriety** (in the case of procedural legitimate expectation), - **Abuse of power** (in the case of substantive legitimate expectation). Some argue that legitimate expectation is a new ground of review, but courts typically fit it within the traditional categories of irrationality, procedural impropriety, and abuse of power.

Answer 45

This element covers: - What it can achieve and how a claim is established. - The difference between substantive and procedural grounds for challenge. **Illegality** as a ground for challenge includes: - Acting without legal authority (ultra vires): Decision-maker exceeds statutory powers (ex p McCarthy and Stone). - Error of law: Decision-maker misunderstands its powers (Anisminic). - Jurisdictional error of fact: Mistake in facts needed to trigger power (ex p Khawaja). - Policy: Policy formulation is permitted but must reflect statutory powers (British Oxygen). - Fettering discretion by rigid policy: Decision-maker must remain open to new arguments (British Oxygen). - Fettering discretion by external dictation: Decision-maker must not act under someone else's influence (Lavender & Son). - Improper or unauthorised purpose: Powers must be used for correct purposes (ILEA). - Dual purpose: Powers must not serve unlawful purposes or materially influence decisions (ILEA). - Considerations: Irrelevant considerations must not be taken into account, and relevant ones must not be ignored (Roberts v Hopwood; Padfield). **Irrationality** as a ground for challenge: - A decision is irrational if it is so unreasonable that no reasonable authority could make it (Wednesbury), or so outrageous it defies logic (CCSU). - While the threshold is high, irrationality can still be found in some cases (Wheeler v Leicester City Council).

Answer 46

**Procedural impropriety:** - This is a ground for challenge based on how a decision is made (the procedure). **Common law rules of procedural fairness (natural justice) include:** - Right to a fair hearing: A hearing must be fair, considering the nature of the affected party's interest (Ridge v Baldwin; McInnes v Onslow-Fane). Rule against bias: Individuals have the right to an unbiased and independent tribunal. - Direct interest bias: Decision-makers with a personal stake, such as financial gain, must not make decisions (Dimes v Grand Junction Canal Co.). This also applies if they share a commitment or belief with one of the parties (ex p Pinochet Ugarte (No 2)). - Indirect interest bias: The test is whether a fair-minded observer would believe there is a real possibility of bias (Porter v Magill). **Breach of statutory procedural requirements (procedural ultra vires): **Courts assess if Parliament intended a specific procedure to be followed, and the consequences of non-compliance (R v Soneji). **Legitimate expectation**: A decision-maker’s promise, whether procedural or substantive, creates an expectation that should be honoured unless public interest overrides it (ex p Coughlan).

Answer 47

JR is governed by a primary legislation (s31 of the Senior Courts Act 1981) and by rules of court contained in Part 54 of the Civil Procedure Rules (CPR).

Answer 48

There are limitations on the availability of judicial review. Five main preliminary issues need to be considered before a judicial review claim can be pursued: (a) Amenability (b) Procedural exclusivity (c) Standing (d) Time limits (e) Ouster clauses (where relevant)

Answer 49

Judicial review is appropriate when a claim involves a '**public law case**' where a public body is challenged on public law grounds. The principle of **procedural exclusivity** states that in public law cases, the judicial review process should normally be used rather than private law procedures. In O'Reilly v Mackman [1983], the House of Lords held that it would be contrary to public policy and an abuse of process for a claimant to enforce public law rights through an ordinary private law action instead of judicial review. **Reasons for judicial review (per Lord Diplock)**: - Using private law procedures allows claimants to avoid safeguards like permission and delay rules, which are designed to prevent groundless or delayed claims. - Judicial review reforms in 1978 aimed to improve procedural fairness for public law challenges. Example Exercise Outcome: - Claim 1 (private care home terminating a contract) and Claim 2 (compensation for negligent advice by a council officer) involve private law grounds, so judicial review would not apply. - Claim 3 (electricity company challenging government consultation on power strategy) involves public law grounds, making judicial review the appropriate procedure.

Answer 50

Lord Diplock reasoned that private law procedures allowed claimants to bypass safeguards in the judicial review process, such as: - **Permission requirement**: Acts as a filter against unmeritorious claims. - **Delay rules**: Protect against challenges that are brought too late. He also noted that judicial review had been reformed in 1978 to better address public law disputes, making it a more suitable process for these cases****. In O'Reilly v Mackman, the claimants (prisoners) sought to challenge a disciplinary decision, which was a public law issue. Since they used a private law action instead of judicial review, the House of Lords ruled against them, emphasising the necessity of procedural exclusivity for public law rights.

Answer 51

Procedural Exclusivity generally requires that public law cases use judicial review, while private law issues follow ordinary private law procedures. However, an **exception** exists for cases involving a mix of private rights and public law elements, allowing the public law aspect to be raised in private law proceedings. - **Example**: In Roy v Kensington Family Practitioner Committee [1992], Dr Roy pursued a private law claim for breach of contract while also challenging a public law decision regarding his NHS entitlement. The House of Lords permitted his private law claim to proceed, as it involved both public and private elements. Exclusively public law issues should still be pursued via judicial review, while exclusively private law issues remain within private law procedures.

Answer 52

Common public law cases include: - Challenges to the making of a compulsory purchase order over land. - Challenges to the grant or refusal of licences for specific activities. - Challenges to the refusal of discretionary financial grants by public bodies. These issues are governed by public law and require judicial review to address potential public law breaches.

Answer 53

**Collateral Challenge** permits a public law issue to be raised as a defence within private or criminal proceedings. - In Wandsworth LBC v Winder [1985], a tenant argued that a council's rent increase was ultra vires as a defence in a private law case for rent arrears. - The House of Lords allowed the public law defence without requiring a judicial review application. - In Boddington v British Transport Police [1998], the House of Lords extended collateral challenge to criminal cases, permitting a public law defence in criminal proceedings. This principle allows defendants to argue the **invalidity of a public law decision** within non-judicial review cases when the public law issue arises "collaterally."

Answer 54

In contractual disputes with public bodies, a private law claim is generally appropriate rather than judicial review, as the relationship is contractual. **Example**: In a case where Aruna, a self-employed accountant, provided services to Constantia District Council, her claim for unpaid fees would proceed through private law as it involves a contractual relationship rather than a public law issue. This principle aligns with the rule established in O'Reilly v Mackman, where private law claims should proceed via ordinary legal procedures rather than judicial review unless a public law element is central to the claim.

Answer 55

The two-part test for determining whether a body is a public body, as established by Lloyd LJ in R v Panel on Takeovers, ex p Datafin plc [1987], includes: - **Source of Power Test:** If the body is created by statute, delegated legislation, or derives its power from a reviewable prerogative power, it is considered a public body. **Nature of Power Test:** If the body exercises public law functions, it may still be deemed a public body, even if it does not meet the first part of the test. Only decisions made by public bodies are amenable to judicial review; decisions by private bodies must be challenged in private law proceedings.

Answer 56

For example, the Advertising Conduct Commission (ACC), established by the Advertising Regulation Act 2017, was created by statute. - Since the ACC derives its power from this statutory foundation, it satisfies the **source of power test** and is considered a public body. - As a result, the ACC is amenable to judicial review, as it fulfills the criteria under the **two-part test** established in R v Panel on Takeovers, ex p Datafin plc. The ACC is a public body because it is created by statute and exercises public functions, making its decisions subject to judicial review.

Answer 57

A recent example of the application of this principle is R (Tortoise Media Ltd) v Conservative and Unionist Party [2023]. - In this case, the High Court ruled that the Conservative Party was not performing a public function when it chose a new leader mid-parliamentary term. - The court found that the appointment of a new leader was not a public law function and could not be considered a public body decision for the purpose of judicial review, as the monarch is the only entity able to appoint a new Prime Minister. This demonstrates that **private organisations, such as political parties, may not always be subject to judicial review**, depending on whether they are exercising public functions.

Answer 58

Under s 31(3) of the Senior Courts Act 1981, a claimant must have ‘**sufficient interest**’ in the matter to which the claim relates in order to have standing for judicial review. A claimant with a personal interest in the decision will generally meet this requirement. However, if the claimant has no personal interest, the question of standing becomes more complex. R v Inland Revenue Commissioners, ex p The National Federation of Self-Employed and Small Businesses Ltd [1982] is the leading case on standing. In this case, the Federation sought judicial review of a tax amnesty granted to casual workers but lacked standing because it could not show any wrongdoing by the Revenue, which would have given it sufficient interest. **Key point**: A pressure group or a ‘public-spirited individual’ may have standing if they can show they have a legitimate interest in the matter, though they must still demonstrate serious wrongdoing or a legitimate concern related to the case.

Answer 59

Standing is closely linked to the merits of the case. The courts will assess whether a claimant has sufficient interest based on the substantive legal and factual issues of the case. In the permission stage of judicial review, the court's role is to weed out **weak and frivolous claims**. If a claim is not obviously unmeritorious, the claimant will be granted permission to proceed, regardless of their standing. However, at the second stage, the court will re-examine the claimant’s standing in relation to the merits of the claim: - For example, if the claimant is unable to show a legitimate connection to the matter or prove significant harm, standing may be denied. - In the National Federation case, the Federation failed to prove wrongdoing by the Inland Revenue and therefore lacked sufficient interest, demonstrating how standing can be determined by the facts of the case.

Answer 60

In the case of R v Secretary of State for Foreign Affairs, ex p World Development Movement Ltd [1994], the Divisional Court set out five key factors to determine whether a pressure group has sufficient interest: 1. The need to uphold the rule of law. 2. The importance of the issue raised. 3. The likely absence of any other responsible challenger. 4. The nature of the alleged breach of duty. 5. The role of the pressure group itself. The court particularly emphasised the fifth factor, considering WDM’s expertise in promoting and protecting aid to developing nations. This approach allows pressure groups to have standing if they meet these criteria, despite not being personally affected by the decision. The statute contains no definition of ‘sufficient interest’. Instead the courts apply factors developed through case law to determine if a pressure group has a sufficient interest.

Answer 61

**Pressure groups** must meet specific criteria to have standing for judicial review, including the five factors established in R v Secretary of State for Foreign Affairs, ex p World Development Movement Ltd. **Individuals** who are personally affected by a decision generally have standing without needing to satisfy these additional factors. For example, a group of local residents opposing a new development would not need to meet the same requirements as a pressure group since each member has personal interest. The case of R (Good Law Project and Runnymede Trust) v Prime Minister and Secretary of State for Health & Social Care [2022] shows that courts may sometimes adopt a more **rigorous approach to pressure groups,** particularly when their remit is broad, as with the Good Law Project.

Answer 62

A decision must be a public law decision to be amenable to judicial review: - Judicial review is defined as a claim to review the lawfulness of a decision, action, or failure to act in relation to the exercise of a public function (CPR Part 54.1(2)(a)(ii)). - Public bodies such as central government departments, local authorities, inferior courts, statutory tribunals, and statutory bodies like the Highway Agency are typically subject to judicial review. - Following the decision in GCHQ, the exercise of prerogative powers is also amenable to judicial review.

Answer 63

Yes, decisions of **private bodies** can be amenable to judicial review **if they perform public law functions.** R v Panel of Take-overs and Mergers, ex parte Datafin (1987): The Panel of Take-overs and Mergers, a self-regulatory body with no statutory powers, was still amenable to judicial review because it regulated an important aspect of national economic life. The **nature** of the decision is the key determinant for amenability, rather than the source of the body’s power. Courts will consider whether the body is performing a public law function or whether the decision has public law consequences.

Answer 64

**Self-regulatory bodies** are typically amenable to judicial review if their actions are of a **public nature**. - R v Advertising Standards Authority Ltd, ex parte Insurance Services plc (1989): The Advertising Standards Authority, a self-regulatory body, was found to be amenable to judicial review. - The court reasoned that, had the body not existed, the government would likely have had to intervene and regulate the activity, illustrating the ‘but for’ test. - Similarly, R v Bar Council ex parte Percival (1990) held that decisions of the Bar Council were amenable to judicial review as the body was performing a public law function.

Answer 65

Yes, some self-regulatory bodies' decisions may **not** be amenable to judicial review. - R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan (1993): The court held that the Jockey Club’s powers were not governmental, and its decisions were based on private agreements, making them not subject to judicial review. - R v Chief Rabbi of the United Hebrew Congregation of GB and Commonwealth, ex parte Wachmann (1993): The court ruled that the internal matters of a religious body, such as the Chief Rabbi, were of a private nature and not subject to judicial review.

Answer 66

The policy of ‘**contracting out**’ services complicates the question of amenability to judicial review. **Not amenable**: In R v Servite Houses & L.B. Wandsworth, ex parte Goldsmith (2001), the court held that a housing association was not performing a public function. The housing association’s powers were contractual, stemming from its commercial relationship with Wandsworth, making it not subject to judicial review. **Amenable**: In R (on the application of A) v Partnerships In Care (2002), a private psychiatric hospital was found to be performing a public function due to its statutory duties under the Mental Health Act, making its decision subject to judicial review.

Answer 67

Judicial review is the exclusive procedure for challenging public law decisions. In O'Reilly v Mackman (1983) and Cocks v Thanet DC (1982), the House of Lords established that: - **Public law decisions** must be challenged through judicial review. - **Private law matters** should be dealt with by ordinary civil actions. - **Challenging a public law decision** through any procedure other than judicial review is considered an abuse of process.

Answer 68

Yes, exceptions to the **procedural exclusivity** rule exist, though these exceptions are narrow. O'Reilly v Mackman (1983) recognised two exceptions to the rule: 1. If **neither party objects** to using a private law procedure. 2. If the contested decision is **collateral** (arising incidentally to some other legal claim). **Mixed Claims**: Claims involving both public and private law issues may also fall under an exception.

Answer 69

The Civil Procedure Rules have influenced the court's approach to procedural exclusivity. - In Clark v University of Lincolnshire and Humberside (2000), the claimant challenged a zero percent mark awarded in a final year paper. The University argued that the claim should have been brought by judicial review, as it concerned public law matters. - The Court of Appeal held that the case could proceed as a civil action rather than judicial review, as the key issue was whether the claimant’s rights had been flouted in a way that was inconsistent with the principles of justice. - Lord Woolf noted that under the CPR, the issue was not primarily about procedure but about ensuring that proceedings were conducted justly.

Answer 70

Claims for judicial review must generally be filed within **three months from the date the ground for the claim arose**, as stated in CPR r 54.5 and Section 31(6) of the Senior Courts Act 1981. For cases under the ‘**planning acts**’, the time limit is reduced to **six weeks from the decision**, as defined in Section 336 of the Town and Country Planning Act 1990. For **public procurement cases**, the time limit is **30 days.** CPR r 54.5(3) clarifies that these time limits are subject to any specific statutory provisions that may shorten them. - For example, in Finn-Kelcey v Milton Keynes Borough Council (2008), the appellant was aware of the planning decision to grant permission but delayed filing his application until the last day of the three-month period, resulting in the Court of Appeal dismissing the appeal for not filing promptly.

Answer 71

Courts have the discretion to refuse claims based on ‘**undue delay**’, as outlined in Section 31(6) of the Senior Courts Act 1981 and CPR r 54.5. Even if a claim is filed within the standard three-month period, it may be rejected if the claimant fails to file promptly. In R (British Gas) v Secretary of State for Energy Security and Net Zero [2023], the Court of Appeal refused permission for judicial review due to a delay in filing, despite the application being made within three weeks to one month after the decisions. The court stressed the importance of timely action, particularly in cases involving financial matters, where delays can affect third parties and undermine good administration.

Answer 72

Yes, the courts can extend the time limit for judicial review claims, but only for **good reason.** For example, in R v Stratford-upon-Avon DC, ex p Jackson [1985], the claimant applied for judicial review of a planning decision eight months after the decision. She provided valid reasons for the delay, including: - Awaiting the outcome of a request for the Secretary of State to consider the matter. - Difficulties in obtaining legal aid. - Difficulties in obtaining permission to use the necessary plans and drawings. The Court of Appeal granted the extension, recognising these as good reasons for the delay, despite it exceeding the typical time limits. However, the courts are **not obligated to extend the time limit**. For example, in Hardy v Pembrokeshire CC [2006], the Court of Appeal refused permission despite the importance of public safety issues, emphasising the need to balance the merits of the claim with the undue delay and potential prejudice caused. In R (Kigen) v Secretary of State for the Home Department [2015], the Court clarified that delays in obtaining legal aid could no longer be treated as an absolute excuse for non-compliance with time limits, although it could still be considered a factor. Moreover, in R v Dairy Produce Quota Tribunal, ex p Caswell [1990], the court stated that even if permission was granted for judicial review, a remedy could be refused if the application was made beyond the three-month time limit.

Answer 73

If a judicial review claim is made after the time limit, it is generally considered too late, but the court has the **discretion** to extend the time limit for a valid reason. For example, in the case of Adgreen Ltd, a business sought judicial review of the rejection of its application for a licence. The rejection occurred six months before one of the directors discovered that judicial review was possible. - The court’s discretion allows an extension only if there is a good reason for the delay. - In this case, ignorance of judicial review availability is unlikely to be considered a sufficient reason to extend the time limit, as it is not deemed a very good reason. - Even if leave were granted, the court might refuse a remedy if the application was made outside the three-month limit, as seen in R v Dairy Produce Quota Tribunal, ex p Caswell [1990].

Answer 74

Ouster clauses are provisions inserted into enabling Acts of Parliament to exclude the right of judicial review once a decision has been made by a public body. These clauses aim to prevent any challenge to decisions made by a public body, effectively removing the courts’ jurisdiction over the decision. They are designed to limit the extent to which courts can intervene in decisions made by certain statutory bodies.

Answer 75

A full ouster clause is a provision that seeks to exclude **any right of challenge to a decision**, attempting to prevent the courts from reviewing or questioning the decision in any way. **Example**: - In Anisminic v Foreign Compensation Commission [1969], the statute creating the Foreign Compensation Commission (FCC) contained an ouster clause stating that any decision made by the FCC "shall not be called into question in any court of law." - The House of Lords ruled that the ouster clause could not protect decisions made outside the scope of the FCC's powers. They concluded that decisions based on legal misunderstanding were ultra vires (beyond its powers) and therefore nullities, not covered by the ouster clause. The principle from Anisminic establishes that full ouster clauses **cannot protect decisions that are invalid because they were made in error or outside the legal powers of the body**. The courts retain the right to review the validity of a decision, even when a full ouster clause is present, as invalid decisions are not actual decisions.

Answer 76

A partial ouster clause provides some opportunity for a decision to be challenged by judicial review, but it **limits** the circumstances under which the challenge can occur, typically by imposing a **time limit** or restricting the grounds on which a decision can be reviewed. Unlike a full ouster clause, which attempts to exclude judicial review altogether, a partial ouster clause still allows for review, but only under specific conditions or within a time frame.

Answer 77

Courts are **more amenable** to partial ousters than full ones because they allow for judicial review to occur under specific, limited circumstances, ensuring a balance between legal certainty and access to justice. **Example**: In R v Secretary of State for the Environment, ex p Ostler [1977], the Highways Act 1959 contained a statutory time limit of six weeks for challenging a compulsory purchase order (CPO). The Court upheld the partial ouster clause, ruling that Ostler's 19-month delay in applying for judicial review meant the court had no jurisdiction to entertain the challenge. R (Privacy International) v Investigatory Powers Tribunal [2019]: The Court held that a six-week time limit could be a proportionate balance between effective judicial review and the need for certainty in decision-making. In R (LA (Albania)) v Upper Tribunal [2023], the Court of Appeal upheld a partial ouster clause in s 11A of the Tribunals, Courts, and Enforcement Act 2007, which restricted judicial review of Upper Tribunal decisions to limited circumstances, such as bad faith or a breach of natural justice. The court found that the clause excluded judicial review in the case at hand, as none of the exceptions applied.

Answer 78

An adequate statutory remedy, such as a right of appeal, may impliedly oust the courts’ judicial review jurisdiction, meaning that if an aggrieved party has access to a statutory remedy, they may be required to exhaust that remedy before seeking judicial review. Example: - In R v Epping and Harlow Commissioners, ex p Goldstraw [1983], Goldstraw, who believed his income tax assessments were too high, failed to attend the appeal hearing under the Taxes Management Act (TMA) 1970. - Although the TMA allowed for an appeal within 30 days, Goldstraw applied for judicial review almost three months later after his appeal was refused. - The Court of Appeal ruled that if a claimant fails to make proper use of the statutory remedy (in this case, the appeal process), the court would generally not allow an application for judicial review. This highlights how the presence of a **statutory remedy can limit the scope for judicial review.**

Answer 79

**Pre-Action Protocol:** Before starting proceedings, the claimant must send a letter before claim to the decision-maker, allowing **14 days for reconsideration**. If the decision-maker’s response satisfies the claimant, the matter ends. If not, formal proceedings should begin. - Courts may consider failure to follow the protocol when awarding costs. - No requirement to follow the protocol if urgent or time limit is less than three months. **Two-Stage Procedure:** **Stage 1 (Permission Stage):** The court considers standing, timeliness, and whether the claim has merit, weeding out hopeless claims. Under s 31(3C) of the Senior Courts Act 1981, permission is not granted if the improper conduct is unlikely to have changed the outcome, though exceptional public interest may override this. **Stage 2 (Substantive Hearing):** The hearing is typically confined to legal arguments, with the judge giving a ruling post-hearing.

Answer 80

The court assesses whether the claimant has standing and if the claim was initiated on time. The court’s primary goal is to filter out meritless claims to save judicial resources. **Permission is not granted if**: - The claimant lacks sufficient interest in the claim. - There has been unjustified delay. - The improper conduct is unlikely to have changed the outcome. **Exceptional public interest** may allow the court to override the standard restrictions. Permission decisions are often made on the papers, without a hearing. If permission is granted, the defendant will file its evidence, and the claim moves to Stage 2 for the substantive hearing.

Answer 81

The substantive hearing takes place in the Administrative Court before a judge. - It is generally limited to legal arguments since the facts are usually not in dispute. - After the hearing, the judge will deliver a ruling on the claim. - If permission has been granted, the defendant must file evidence before the hearing takes place. - The hearing is typically focused on determining the legal validity of the actions being challenged rather than revisiting the facts.

Answer 82

First, the claimant issues a claim form in the Administrative Court. The claim form must: - State that the claimant is requesting permission to proceed with a claim for JR and the remedy/remedies sought. - State, or be accompanied by a detailed statement of, the claimant's grounds for making the claim, the facts relied on and the supporting evidence. Second, the claim form is 'served' on the defendant (and any other interested party). Note: If the JR proceedings are contested, the defendant should respond to the claim form, indicating the grounds for contesting the claim. Third, the court will then decide whether to grant permission to the claimant to proceed witht eh claim. Permission will not be granted if the claimant cannot demonstrate a 'sufficient interest' in the claim; if the claimant has been guilty of unjustified delay; or if the conduct complained of would be highly likely not to have resulted in a substantially different outcome for the claimant. Permission decisions will often be made 'on the papers', i.e., without hearing the parties. Fourth, if permission is granted, the defendant (and any other interested party) will file its evidence. The court will now proceed to "Stage 2", the substantive hearing of the claim for which it will fix a date.

Answer 83

Remedies in judicial review are **discretionary**, meaning that even if the claimant proves improper conduct by the decision-maker, the court may still decide not to grant a remedy. **Section 31(2A) of the Senior Courts Act 1981** (amended by the Criminal Justice and Courts Act 2015) states that the court must refuse a remedy if it appears highly likely that the outcome for the claimant would not have been substantially different if the improper conduct hadn’t occurred. The court can, however, choose to **overlook** this requirement if there is **exceptional public interest.**

Answer 84

The primary court orders available to judicial review claimants are known as **prerogative orders** and include: - **Quashing Order:** Nullifies a decision made by a public body. - **Prohibiting Order:** Prevents a public body from taking an anticipated unlawful action. - **Mandatory Order:** Compels a public body to perform a legal duty it has failed to fulfil. These prerogative orders are specifically available against public bodies only.

Answer 85

A quashing order nullifies a decision the court has found to be unlawful, meaning it deprives the decision of legal effect: - The original decision is thereby rendered **void**. - Generally, the court does not substitute its own decision but remits the decision back to the original decision-maker, who must reconsider the decision in light of the court’s judgment. - The decision-maker may arrive at the same decision again; however, this time, they are expected to make a lawful decision by considering the court’s judgment and reasoning.

Answer 86

The Judicial Review and Courts Act 2022 (effective 28 April 2022) grants courts additional powers to issue: **Suspended quashing orders**: This allows the court to delay the effect of the quashing order until a specified date, giving the decision-maker time to correct the unlawful act. If not corrected by the deadline, the quashing order takes effect. **Prospective-only quashing order**s: These orders only render the decision void from the time of the judgment onwards, preserving the validity of any actions taken under the decision before the judgment.

Answer 87

When deciding whether to issue a suspended or prospective-only quashing order, the court must consider: - The nature and circumstances of the **relevant defect** in the decision - The interests or expectations of those who would **benefit** from quashing the decision. - The interests or expectations of those who have **relied** on the decision.

Answer 88

A suspended quashing order is appropriate where the court intends to allow the public body time to implement transitional arrangements. **Examples**: A public body’s decision to establish a licensing regime is found invalid. The court issues a quashing order suspended for 30 days with conditions such as halting the issuance of new licenses. **Implications**: Existing licenses remain valid for 30 days, allowing license holders to prepare for invalidation. The public body can use this period to set up a new licensing system or make other necessary arrangements. In R (ECPAT UK) v Kent CC [2023], the High Court issued a **suspended quashing order** regarding the Kent Protocol, an agreement between Kent County Council and the Home Office limiting the number of unaccompanied children in Kent’s care. The court found that: - Kent County Council was acting unlawfully by failing to accommodate all unaccompanied children in its area, breaching statutory duties. - The Home Secretary also acted unlawfully by agreeing to the Protocol. The quashing order was suspended for three weeks to enable the county council and Home Secretary to establish alternative arrangements for the unaccompanied children affected.

Answer 89

A prospective-only quashing order is appropriate when revisiting prior decisions would cause significant administrative disruption with minimal benefit. For instance: - A public body establishes a scheme under which it issues **thousands of small payments** to individuals. - If deemed unlawful, re-opening each individual payment would impose considerable administrative burden, given the modest amounts involved, with limited benefit in doing so.

Answer 90

A prohibiting order prevents a public body from acting outside its lawful authority, effectively restraining it from taking certain actions beyond its powers. Such orders are relatively rare, as claimants often prefer injunctions to prevent unlawful actions. **Example**: - In R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators’ Association, the council planned to issue new taxi licences, breaching a prior assurance to consult existing licence holders. - The court issued a prohibiting order to stop the council from proceeding with this decision until consultation with current licence holders had taken place.

Answer 91

A **mandatory order** is a court order aimed at ensuring that a public body performs the duties it is legally obligated to carry out. For example, if a public body refuses to consider an application for a benefit or licence, a mandatory order would compel the body to review and consider the application, enforcing compliance with its statutory responsibilities.

Answer 92

In judicial review proceedings, private law remedies (also referred to as "non-prerogative orders") serve as alternative remedies that may be sought in addition to the main prerogative orders. These remedies include: - **Declarations**, which clarify the legal position or rights of the parties without altering them. - **Injunctions**, which restrain unlawful actions. Although not the primary orders used in judicial review, these remedies provide flexibility in addressing specific legal concerns.

Answer 93

A **declaration** is a court order that confirms, but does not alter, the legal position or rights of the parties involved. It is a **non-coercive remedy**, meaning there are no legal sanctions for disregarding it. Declarations are useful for clarifying the legal position, especially in cases where no specific decision or act can be quashed. Example: - In Royal College of Nursing v Department of Health and Social Security [1981], a government circular suggested that nurses could lawfully perform part of a procedure to terminate a pregnancy without a doctor’s supervision, contrary to other guidance. - The claimants sought a declaration to clarify the legal correctness of the circular, despite it being an abstract issue without direct prosecutions. - A declaration was granted to establish the correct legal position for the benefit of nurses and the public, even though a quashing order would not have applied in this situation.

Answer 94

An **injunction** is a court order aimed at preventing a person or body from undertaking unlawful action, such as a tort or breach of contract. Its function is similar to a **prohibiting order.** Key features: - **Interim injunctions** can be issued temporarily, halting a decision's implementation until a court rules on its legality. - Interim injunctions can be critical in preventing irreversible outcomes pending judicial review. **Example**: A court may issue an interim injunction to stop an asylum seeker’s deportation while the court reviews the lawfulness of the deportation decision, ensuring the individual is not deported before the case is decided.

Answer 95

Damages in judicial review can be awarded under s 31(4) of the Senior Courts Act 1981 only if: - The claimant is seeking **other relief** (e.g., a quashing order) in addition to damages. - The claimant has a **private law cause of action** (e.g., in tort or contract) or a claim for breach of a Convention right. - Damages are not available simply because the claimant has a ground for judicial review. This was confirmed in R v Knowsley MBC, ex p Maguire (1992), where the claimant sought damages after the court quashed the refusal of his taxi licence, but damages were not granted because there was no private right of action.

Answer 96

Assuming Stefan makes a successful claim for judicial review (on the basis of procedural impropriety), he would seek a quashing order. This would quash the revocation and allow him to continue trading under the licence. Stefan is unlikely to obtain damages. Because of s 31(4) of the Senior Courts Act 1981, damages are in effect available in a claim for judicial review only where the claimant is seeking another remedy (as here) and, in addition to breach of public law rights or legitimate expectations, the claimant can establish that their private law rights have been infringed. However, damages are not available purely for the infringement of a public law right (R v Knowsley MBC, ex p Maguire (above)).

Answer 97

**Public law body**: The decision-maker must be a public law body for judicial review to apply. **Sufficient interest**: Claimants must show they have sufficient interest to bring a claim: - Directly affected claimants have little difficulty. - Pressure groups need to demonstrate genuine interest and avoid being seen as ‘busy-bodies’. **Time limit**: Judicial review applications must be made promptly, within three months of the decision. Courts can extend this limit if good reasons are shown. **Ouster clauses**: - Complete ouster clauses (attempts to block judicial review) can be circumvented by courts, especially when decisions are invalid (nullities). - Partial ouster clauses (shortening time limits) can be upheld. **Stages of judicial review**: The process involves a permission stage followed by a full hearing. **Available remedies**: - Prerogative remedies include quashing, mandatory, and prohibitory orders. - Non-prerogative remedies include declarations, injunctions, and damages. **Key takeaway**: Judicial review requires prompt action and involves different principles from ordinary civil claims.

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13 - Judicial Review Flashcards

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