Access to Judicial Review Flashcards
Lecture 2
What are the procedural reforms? (Order 53 of the Rules of the Supreme Court)
- Aims to simplify the process to enable claims, while also protecting public administrative - balance
- Once you choose one remedy, you cannot change to the correct one (“no mixing and matching”)
What are the preliminary issues found in a JR claim?
- Amenability
- Standing
- Permissions/Procedures
What two questions are used regarding amenability?
- Is the decision-maker (person/body being challenged) subject to judicial review?
- Has there been a reviewable decision/action etc.?
Does judicial review apply to the decision-maker? (CPR 54.1)
- You’re looking into whether the decision-maker is exercising a public function
- Reviewing the lawfulness of: an enactment + decision
What is a “public function”?
“There is no universal test … when judicial review is or is not available.” (Woolf LJ)
What is the traditional approach?
- Looking for where power comes from (e.g., Act of Parliament)
- Usually bodies created by statute or Royal Prerogative (clearly public bodies)
What is the other approach the courts do as well for public functions?
Looking into the nature of their actions themselves
What considerations do the courts take into account regarding public functions?
- Is the function being performed doing something for the public benefit?
- Is it fulfilling a public and governmental role?
- But for the body, would the government have to play the role itself?
What was the final outcome of the Datafin [1987] case?
- Panel’s decision could be judicially reviewed
- Panel not created by government/status, but looking into both power and nature of actions
What is the outcome of the Aga Khan case [1993]?
- It exercises powers of public interest
- A public need: ‘But for test’, if the Jockey Club did not regulate this activity, the Government would probably be driven to create a public body to do so
How can you tell when a decision (etc) is reviewable?
- Justiciability
- Traditional reluctance to review the exercise of prerogative powers
- Rejected in following cases
What is the outcome of R v Criminal Injuries Compensation Board [1967]?
- Parker CJ: shift from focus on source of power to its effect
- Held: decision could be reviewed, despite an order in Council being under the prerogative
“Excluded categories” - which examples shows where the nature of power mean it is not suitable for judicial involvement?
- Making of treaties
- Granting of honours
- Appointment of ministers
- Issuing of passports
- Deployment of armed forces
- National security issues
Why are ouster clauses irrelevant regarding amenability?
- Purporting to limit or exclude review of particular decisions
- If such a clause is relevant, courts need to consider its effect + what it says about reviewability of the decision
For standing, define what a “sufficient interest” test is and who decides?
- Sufficient interest has no statutory definition, but the courts decide this themselves and change it over the years
- Done to “preserve the integrity of the rule of law” (Lord Diplock)
What are the different types of standing?
- Direct: has direct impact on the interests of the claimant
- Representative: representing other people in some way (not directly affected)
- Associational standing: a group bringing a claim on behalf of some ‘clearly identifiable members’ within organisation.
What guidance is provided regarding the pre-action protocol?
‘a code of good practice and contains the steps which parties should generally follow before making a claim for judicial review’.
What are some key expectations for procedural requirements?
- Attempts at alternate dispute revolution
- Letter before claim
What does CPR 54.5 state regarding time limits?
1) Claim form filed prompty, not later than 3 months
2) Cannot be extended by agreement of parties
3) Does not apply where enactments specify shorter time limit
What are the following prerogative remedies?
- Quashing order: striking down decisions
- Prohibiting orders: stop public authority acting in a particular way
- Mandatory orders: demanding public authority must act in a particular way
What other ordinary remedies are available?
- Injunctions or declarations - discretion of court
- Damages in particular circumstances
What is a restriction on remedies? (2015 amendment to SCA 1981)
- Courts must refuse remedy if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”
- But can be disregarded if appropriate for reasons of the public interest
