7. Judicial Review: Procedure and Remedies Flashcards
What type of cases is judicial review available for?
Public Law Cases
- compulsory purchase order over land
- grant of a license for carrying out an activity
If a claimant wishes to pursue judicial review against an individual / body, what must this individual / body be?
Public
- Private Bodies must use private law proceedings
Test for Public Bodies
Datafin
1. Examine the source of power
- eg. set up by statute or delegated legislation or a reviewable prerogative power
IF NOT
2. Examine the nature of the power
- if the body making the decision is exercising public law functions, may still be a public body
Who has standing to bring a judicial review claim?
- Either, individuals who are PERSONALLY AFFECTED
- Pressure Groups where the test in Ex Parte World Movement Applies
When will a pressure group have sufficient interest to bring a claim under judicial review?
Factors to consider:
1. Doing so will uphold the rule of law
2. the issue is of high importance
3. the likelihood the other challengers are absent
4. the nature of the alleged breach and
5. the role of the pressure group
When must an individual bring their judicial review claim? Any exceptions here?
Claim form must be filed within 3 months of the decision to be reviewed
For PLANNING ACTS:
- reduced to 6 weeks
for ACTS WITH OUSTER CLAUSES:
- when clause specifies
Can the court extend the deadline for bringing the judicial review claim?
Yes, but there must be good reason
Ouster Clauses: Full and Partial
FULL: attempt to allow no right of challenge at all
- Generally will not protect decisions which were never legally valid
PARTIAL: impose restrictions on bringing a challenge
- ie. wrt time limits
- courts tend to be more amenable to these
In accordance with the Pre-Action Protocol for Judicial Review, what must the claimant do (once they have decided) as a ‘first step’
Send a letter to the respondent before claim
- if there is no response within 14 days, issue proceedings
Stages of a judicial review claim
- Pre-Action Stage
- Permission Stage
- Substantive Stage (hearing before the administrative court)
Two Categories of Remedies
- Prerogative Orders
- Non-Prerogative Orders
Prerogative Orders that the court could order
- Quashing order
- Prohibiting order
- Mandatory Order
Non-prerogative orders that the court could grant
- Declaration of the court
- Injunction
- Damages (how they would be awarded in a civil claim), claimant needs private law action
When would the court order a quashing order?
When the decision needs to be ‘quashed’, making it null
- decision-maker must begin decision making process again
When would a court order a prohibiting order?
Orders a public body to refrain from acting beyond its power
When the court order a mandatory order
To compel public bodies to exercise the duties conferred upon them by law
Timeline for issuing judicial review claim
CPR, r 54.5 requires that a claim form must be filed promptly, and in any case within a maximum of three months after the ground to make the
claim first arose.
- With effect from 1 July 2013, amendments to r 54.5 reduced the standard time limit for cases within the ‘planning acts’ to six weeks from the date of the decision
- Public procurement cases time limit is 30 days
*not necessarily fine to make application right at the end of the 3 month period
Effect of a suspended quashing order
Suspends the effect until a certain date - giving public body the opportunity to right the wrong
- and if they do not, order becomes effective
Effect of a prospective effect quashing order
Render the decision void from the time of the judgement onwards (not invalidating past decisions)
When might a prospective quashing order be most appropriate
When thousands of small payments have been made
- to render the decision quashed / unlawful would require a lot of administrative inconvenience
- high burden with little benefit if the payments were modest
Purpose of a declaration remedy in judicial review
A court order confirming (not changing) the legal position or rights of the parties
- most appropriate when there is no ‘decision’ to be quashed just an error that needs to be corrected
When would injunctions be a better remedy than a prohibiting order (JR)
Injunctions can be obtained on a temporary basis prior to the court’s final ruling - could be used if needing to prevent action ‘in the mean time’ such as deportation prior to ruling
When can damages be awarded in a judicial review claim
- claimant is seeking other relief (ie. quashing order)
- damages COULD have been awarded in a civil claim (meaning private cause of action or breach of a convention right)
