7. Judicial Review – Procedure and Remedies

Question 1

1. Can the claimant (‘C’) make a claim for judicial review?

Answer 1

Does the claimant’s claim raise public law issues? Is the defendant amenable to judicial review?

Is there “sufficient interest”?

Is it within time?

Ouster provisions? Appeal?

Question 2

What does the principle of procedural exclusivity require?

Answer 2

The judicial review procedure should generally be followed in public law cases, rather than the ordinary private law procedure.

Question 3

How are exclusively public and private cases dealt with

Answer 3

Exclusively public law issues must be determined in judicial
review proceedings.

Exclusively private law issues must be determined in ordinary private law proceedings.

Question 4

What decisions can claimants seek judicial review of?

Answer 4

Decisions made by public bodies.

Decisions of private bodies must be challenged under private law proceedings.

Question 5

2-part test to determine what constitutes a public bodhy

Answer 5

Source of power test = If the body making a decision
has been set up under statute or under delegated legislation, or derives its power under a reviewable prerogative power, then it is a public body.

Nature of power test = If the body making the decision is exercising public law functions, it may still be a public body.

Question 6

The requirement of “sufficient interest”

Answer 6

The courts will deem a claimant to have standing to bring a judicial review claim only if he has “sufficient interest in the matter to which a claim relates”.

This will not present a problem if a claimant is personally affected by a decision, but may be an issue if the claimant has no personal interest.

The question of standing is closely linked to the merits of the case; the courts are unlikely to reject a valid judicial review claim simply on the grounds of a lack of standing.

Question 7

What are the 5 relevant factors a court should consider in deciding whether a pressure group has standing to bring a judicial review claim?

Answer 7

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; and
5. the role of the pressure group.

The court emphasised the fifth factor as being particularly relevant to pressure groups.

Question 8

Time limits: GR

Answer 8

A court can refuse a claim where it feels there has been undue delay.

3 months is the maximum time a court will allow; less in planning and public procurement cases.

Question 9

Can the courts extend the time limit?

Answer 9

Yes, but only for a good reason. They are not obliged to.

E.g. difficulties in obtaining legal aid; awaiting an outcome of a request to the Secretary of State.

Question 10

What would justify an extension of the time limit?

Answer 10

The importance of public safety issues. However, it
remains for the judge to conclude whether the merits of allowing a claim outweighed the undue delay and prejudice that would be caused by granting the permission.

Question 11

What are ouster clauses?

Answer 11

They are inserted by Parliament into such Acts where it wishes to exclude any right of a challenge once a decision has been made by a public body.

Question 12

What is a full ouster clause?

Answer 12

One which purports to allow no right of challenge at all, and which attempts to exclude the courts from playing any role in review of the decision.

Question 13

What do ouster clauses protect and why?

Answer 13

The House of Lords stated if a public body steps outside its
permitted area, its decisions are not covered by an ouster clause because invalid decisions are not in fact decisions at all, but “nullities”.

Ouster clauses therefore only protect valid decisions from judicial review.

Question 14

What do partial ouster clauses provide?

Answer 14

Some opportunity for a decision to be challenged by way of
judicial review.

The courts are more amenable to partial ousters than to full ones.

Question 15

Other statutory remedies

Answer 15

The provision of an adequate statutory remedy for an aggrieved party, such as a right of appeal, may impliedly oust the courts’ judicial review jurisdiction.

The Court of Appeal held that where a claimant had failed to make a proper use of an appropriate statutory procedure for obtaining a remedy, the court would not generally exercise its discretion to allow an application for judicial review.

Question 16

Stage 1: the permission stage

Answer 16

The court considers whether the claimant has standing and
whether the claim was begun in sufficient time.

The purpose of this stage is to allow the courts to save time by weeding out hopeless claims before they reach the second stage.

The court must not grant permission to apply for judicial review where the improper conduct complained of would be highly likely not to have resulted in a substantially different outcome for the claimant.

The court may, however, disregard this requirement for reasons of exceptional public interest.

Question 17

Stage 2: the hearing of the claim for judicial review

Answer 17

The substantive hearing is before a judge in the Administrative Court.

The hearing is usually confined to arguments on points of law, as the facts will rarely be in issue.

Following the hearing, the judge will give his or her ruling.

Question 18

Public law remedies – the ‘prerogative orders’

Answer 18

Quashing order
Prohibiting order
Mandatory order

Prerogative orders are available against public bodies only.

Question 19

What does a quashing order do?

Answer 19

Quashes a decision that the court has found to be unlawful (ie it deprives the decision of legal effect). The original decision is thereby nullified.

However, the court does not usually substitute its own decision but remits it to the decision-maker who must reconsider the decision in light of the court’s judgment.

Question 20

What powers do the courts have re quashing orders?

Answer 20

A court has the power to suspend, until a specified date, the effect of an order quashing a decision. This gives the decision-maker time to put right the identified unlawful act. If it does not do so by the deadline, the quashing order will become effective.

A court may also specify that a quashing order will only have a prospective effect. This means that the quashing order will only render the decision void from the time of the judgment onwards. It would not invalidate any past decisions.

Question 21

What is the effect of a prohibiting order?

Answer 21

Orders a public body to refrain from acting beyond its powers. Such orders are comparatively rare as claimants often prefer to apply for injunctions.

Question 22

What is the effect of a mandatory order?

Answer 22

Enforces the performance by public bodies of the duties they are by law required to carry out.

Question 23

Private law remedies – the ‘non-prerogative orders’

Answer 23

Declaration
Injunction
Damages

Question 24

What is a declaration?

Answer 24

A court order confirming, but not changing, the legal position or rights of the parties. It is a non-coercive remedy so can be ignored without any legal sanctions.

Question 25

What is an injunction?

Answer 25

A court order that performs essentially the same function as a prohibiting order, namely, to restrain a person or body from illegal action.

Question 26

Benefits of an injunction?

Answer 26

it is possible to obtain an interim, as well as a final, injunction.