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4) Legitimate Expectation Flashcards

1
Q

What is the most recent ground of challenge to be developed in judicial review?

A

Legitimate Expectation

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2
Q

What is legitimate expectation

A

An expectation that a procedure or benefit, arising from

  • a representation / promise made by a public body
  • or established practice
  • that may be protected by law
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3
Q

Where did the doctrine of legitimate expectation emerge from

A

Duty to act fairly

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4
Q

Who first introduced the phase “legitimate expectation”

A

**Lord Denning **in *Schmidt v SoS for Home Affairs. *

Admin body may be bound to give a person an opportunity of making representations…. depends on whether they have some right or interest… or some legitimate expectation … that it would not be fair to derpive him of.

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5
Q

What are the two primary forms of legitimate expectation

A

A) Procedural legitimate expectation (first to be recognised)

B) Substantive Legitimate expectation

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6
Q

When do procedural legitimate expectations arise?

A

When either a:
1) Public body has promised or represented that a particular procedure will be followed before a decision is made

2) Where there has been an established practice for the public body to use a particular procedure

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7
Q

R v Liverpool Corp (ex parte) Liverpool Taxi Operators’ Association

Legitimate expectation

A

Town Clerk had assured the Assoc that it would not increase the number of licensed taxis without hearing representations from the Association.
CoA held that it was unlawful for the Corp to have departed from this undertaking

= Procedural

Legitimate expectation

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8
Q

A case example where a public body has established practice of a particular procedure?

A

GCHQ

Procedural Legitimate Expectation

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9
Q

Substantive legitimate expectations

A

An assurance or promise has led a person to believe that they will receive a particular, tangible benefit

If upheld, will entitle person to actual benefit itself.

*R v IRC, ex parte Preston; R v SoS, ex parte Asif Khan

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10
Q

Substantive legitimate expectation is an extensiton that emerged from which lines of authority
Casess

A

1) Assurances given by the Inland Revenue in respect of **tax affairs. **
(R v IRC, ex parte Preston)

2) Criteria in a HO circular regarding overseas adoption
R v SoS for the Home Dept, ex parte Asif Khan

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11
Q

Which case confirmed and enforced a substantive legitimate expectation?

A

R v North and East Devon Health Authority, ex parte Coughlan

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12
Q

What is the court’s approach to assessing legitimate expectation?

A

1) Has an expectation arisen
2) If so, is it legitimate
3) Has the public body lawfully frustrated the legitimate expectation?

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13
Q

1) Has an expectation arisen

A
  • Express promise on behalf of a public authority
  • Existence of a regular practice that can reasonably be expected.

Can only be generated by or on behalf of a public authority.

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14
Q

ex parte Begbie

Legitimate Authority

A

LE was not established when opposition party spoke, as they were not on behalf of a public authority….despite subsequently forming the public authority

Legitimate Authority = Public Authority

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15
Q

What are the two broad ways that Legitimate Expectation can arise?

A
  • Express promise
  • Regular practice

GCHQ

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16
Q

Exmple of a case were LE arose from
* An express promise
* via a specific representation

A
  • Liverpool Taxi Operators Assoc
  • ex parte Coughlan - disabled patients promised they could live as long as they chose in residential facility
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17
Q

Exmple of a case were LE arose from

  • An express promise
  • via policy
A

AG of HK v Ng Yuen Shiu

Hong Kong gov had to honour origianl policy to allow Chinese nationals to put forward repatriation case

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18
Q

Exmple of a case were LE arose from

  • An express promise
  • via White paper
A

R(Greenpeace Ltd) v SoS Trade and Ind

Courts enforce Energy White Paper proper to hold “fullest possible consultation”

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19
Q

Why are LEs arising from policies controversial?

A

Because public bodies must be allowed to change their policy otherwise they could fetter their discretion.

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20
Q

How can established past practice claims arise?

A
  • Established practice
  • Settled course of conduct

Towards the claimant or a class of persons to which the claimant belongs

GCHQ

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21
Q

GCHQ - FACTS

Legitimate expectation

A
  • Long standing and settled practice for trade unions to be consulted by government before service conditions of staff at GCHQ were altered.
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22
Q

GCHQ - HELD

Legitimate expectation

A
  • Generated Legitimate Expectation
  • Not unlawful to frustrate, in the interest of national security.
  • = Prerogative power.
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23
Q

R IRC, ex parte Unilever plc

Legitimate expectation

A
  • IRC had accepted late “loss relief claims” rom Unilever on 30 occassions over 20 years
  • Suddently stopped
  • COA held there had been a clear and consistent pattern of conduct upon which Unilever could rely.
24
Q

Is the expectation legitimate?

A

Requires detailed examination of
* the precise terms of the promise or representation
* The circumstances in which promise was made
* Nature of the statutory or other discretion

Coughlan Case

25
What are the relevant factors for an expectation to be legitimate?
* Clarity * Legality * Agency * Knowledge * Reliance
26
How do the relevant factors that determine if an expectation is legitimate vary?
* Significance and application of factors vary * **Depending on the context** within the expectation has arisen
27
R v IRC, ex parte MFK | Legitimate expectation - Clarity
Promise must be * Clear, unambiguous and devoid of relevant qualification | Clarity - Promises and policies.
28
Paponette v AG for Trin and Tobago ## Footnote Legitimate expectation - Clarity
"how on **fair reading** of the promise it would have been **reasonably understood** by those to whom it was made." ## Footnote Clarity - Promises and policies.
29
Clarity - R(Patel) v GMC | Legitimate Expectation - Clarity
* LE had arisen through a promise * Number of very **specific** **assurances** * Tried to obtain a **clear** **response** to his question concerning the "promise" | Clarity - Promises and policies.
30
R(Davies) v The Comm for Her Majesty's Revenue and Customs | Legitimate Expectation - Clarity
**Past practices** .... * Would need evidence so unambiguous / widespread /established and recognised. * Taxpayers evidence was far too thin and equivocal to est practice | Past Practices - Clarity
31
Meaning of Legality | Legitimate Expectation
Legality - must be legal in the sense it would be **within the powers of the public authority** to fulfil the promise. LE can only arise if a **lawful promise or practice** | Legitimate Expectation - Legality
32
R v SoS for Educ and Emp, ex parte Begbie | Legitmate Expectation - Legality
An undertaking that children in gov funded scheme at independent school would be able to remain. * Not Legitimate Expectation * Contrary to requirements of statutory provisions - Educ (Schools) Act 1997 **No LEGALITY*
33
Rowland v EA | Legitimate Expectation - Legality
* Waterway and EA * Not within EA's grant to extinguish public access * No statutory power **No LEGALITY**`
34
Does the promise giving rise to a LE have to have been made by a person or body who may be bound by it?
* No * **BAPIO Action Ltd** = held that a promise by the Home Office dept was binding on Dept of Health minister * **Promises can bind others**
35
Can an expectation still be legitimate where the public authority made a promise in the **mistaken belief it was under a statutory duty** to do as it promised?
* If it is within the statutory powers to fulfil it * **R(Bibi)** * Local Authority did not have a statutory duty to provide permanent housing
36
Agents | Legitimate Expectation
* An agent is someone acting on or behalf of another person or body. * Will not be bound by an LE, **if agent is acting outside of his auhtority** | *Flanagan*
37
South Bucks DC v Flanagan Principle | Legitimate expectation
* Public body is not bound by a representation that is outside hsi authority to make. | Legitimate expectation - Agent
38
South Bucks DC v Flanagan FACTS
* Solicitor appointed by DC to prosecute D for breach of enforcement notice. * Reached a settlement with D's lawyer for withdrawal of enforcement. | Legitimate expectation - Agent
39
South Bucks DC v Flanagan HELD | Legitimate expectation
* Neither **ostensible authority** * Or **actual authority** * Council not bound | Legitimate expectation - Agent
40
Can a person claim they had a legitimate expectation **when they have no knowledge** of the represetnation or past practice at the relevant time? | Legitimate Expectation
**ex parte Ahmed and Patel** * LE not based upon **any actual state of knowledge** | Legitimate Expectation - Knowledge
41
R(Rashid) v SoS for Home Dept | Legitimate Expectation
**Applicant could benefit from a policy of which he had no knowledge** * LE in the absence of knowledge has been met with divided opinion | Legitimate Expectation - Knowledge
42
SoS HS v Rahman | Legitimate Expectation
* LE served no purpose where there had been no representation by the Public Authority to the claimaint seeking to rely on it. * Contrary to *R(Rashid)* = **divided opinion** | Legitimate Expectation - Knowledge
43
Name a common argument in favour of Legitimate Expectation being available, despite the absence of knowledge?
* Priniciple of **good administration** * Requires public authorities apply their own internal policies consistently to all cases | * *ex parte Urmaza*; *Lumbaba*
44
What ar the two doctrines at play in relation to Legitimate Expectation & Knowledge
* Legitimate expectation = requires individul to know about policy seeking to rely * Good Administration = Doctrine of consistency in the application of policy
45
Legitimate Expectation - **Reliance**
Reliance is a **non-determinative factor**, although one that the court must consider * Not essential that applicant should have relied upon promise - but is a relevant consideration | *R(Bancoult*
46
Frustration of Legitimate Expectation
* Will be upheld if lawful * Will not be upheld if unlawfil
47
Key qyestion in *Paponette Case*
* Sufficient public interest to override the legitimate expectation to which representation has arised. * Burden of proof in cases of frustration of legitimate expectation
48
Frustration of procedural legitimate expectations
* Generally the **importance of fairness** will dictate * Will accept frustration where there are **compelling public interest reasons** - *GCHQ* * Courts will assess
49
Frustration of substantive legitimate expectations
* Caution around fettering public authorities, and protecting their ability to change policy * Competing approaches based on *rationality* and *fairness* *
50
Ex parte Coughlan | Lawful frustration
Where there is a **substantive LE** court can also decide whether frustration was so unfair as to amount to an **abuse of power**. * Promised to live life in disabled home. * Authority had not offered any equivalent facility * Unfair to have rescinded = abuse of powere
51
Legitimate Expectation is that the public authority bear in mind previous policy re: representation | **Frustration**
* Court is bound to review it on grounds of **Wednesbury unreasonableness** * *Re Findlay* and *Hargreaves* ## Footnote *Ex Parte Coughlan*
52
Procedural legitimate expectation | **Frustration**
* Court will require procedure to be complied with * Unless there is an **overiding reason to resile from it** * Adequacy of the reason will be basd on **fairness** ## Footnote *Ex Parte Coughlan*
53
Substantive legitimate expectation | **Frustration**
* Court can also decide whether frustration of the expectation was **unfair** to amount to an **abuse of power** * Court will **weigh fairness** against any overriding interest ## Footnote *Ex Parte Coughlan*
54
Which case applied and developed *Coughlan's* approach to frustration of substantive Legitimate expectation
Begbie
55
Ex part Begbie ## Footnote **Frustration of LE**
* Decisions within the **macro political** - to get a Wednesbury standard of review * Those lying outside of this to get a higher intensity reviw
56
R(Abbasi)
* Legitimate Expctation arising out of government policy concerning diplomatic relations * Not inherently justiciable * **light intensity review**
57

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