Admin - Judicial Review Procedure

Question 1

what are the general preliminary requirements for JR?

Answer 1

• CPR 54.4 - claimant needs permission of the court to bring the JR claim
• must be a ‘last resort’ action; must try other reasonable routes first e.g. statutory appeal process, ADR
• where possible must avoid litigation
• permission is likely to be refused if unarguable - hearing held on the merits of the substantive issues in the applicant’s case

Question 2

what are the other preliminary requirements needed in a JR claim?

Answer 2

• amenability
• standing
• time limits

Question 3

what is amenability?

Answer 3

• who/what can be contested in JR
• CPR 54.1(2)(a)(ii) - JR claims must be brought regarding ‘the exercise of a public function’

Question 4

what is the test for a public body? (incl. case)

Answer 4

• Datafin
• body not created by statute but has significant powers
• there was non-consensual submission to the decision-maker
• the government would’ve had to intervene to regulate the area if the body didn’t exist

Question 5

who are typical JR defendants?

Answer 5

• secretary of states
• local councils (city, county, borough councils)
• crown prosecution service
• crown or magistrates court
• chief constables of the police

Question 6

academic commentary - why does JR only apply to public bodies?

Answer 6

Cane:
1. public bodies exercise certain functions, powers and duties that private citizens simply don’t have
2. there ought to be additional duties of procedural fairness imposed upon public bodies due to the power they have
3. certain institutions may have a monopoly in a particular, and by virtue of that should be subject to a degree of public accountability

Question 7

who has standing?

Answer 7

• SCA s.31(3) - applicant must have ‘sufficient interest’ in the matter which the application relates

Question 8

what constitutes sufficient interest? (incl case)

Answer 8

• personal interest - decision directly affects a person’s rights or interests
• individual standing on public interest grounds when the court acknowledges the importance of public law decisions being open to challenge (AXA)

Question 9

when is group standing allowed? (incl. 3 cases)

Answer 9

• usually granted on public interest grounds
• Fleet Street Casuals - the ‘legal and factual context’ of the case at hand must be considered in determining standing; the rule of law should allow ‘pressure group[s]… or even a single spirited tax payer’ to stand against unlawful decisions
• Greenpeace - the pressure group must have special expertise in the decision area
• World Development Movement - standing granted if there is no other challenger likely to come forward about the decision

Question 10

what is a more restrictive approach to standing? (incl. case)

Answer 10

• Rose Theatre Trust - if a pressure group does not have special status which distinguishes them from other citizens or the members of the group would likely not have individual standing they would not be granted a JR

Question 11

what is the time limit for filing a JR claim?

Answer 11

CPR 54.5(1)(b) - within 3 months of the decision/action in question was made (6 weeks in planning cases)

Question 12

case law surrounding time limits (x3)

Answer 12

• O’Reilly v Mackman - permission will not be granted if claim is not brought in time
• SS Transport v Arriva - when it is unclear as to the first instance a JR action could’ve been brought courts will examine the facts on a case by case basis
• Lam v UK - the requirement for promptness does not violate Art 6 ECHR (right to a fair trial)

Question 13

what are the available remedies for JR?

Answer 13

CPR 54.2 - quashing order, mandatory order, prohibitory order, declaration, injunction

Question 14

what do each of the JR remedies do?

Answer 14

• quashing order - set aside the public body’s decision
• mandatory order - requires the public body to carry out its duties
• prohibitory order - prevent the public body from acting beyond their powers
• declaration - sets out the positions and rights of the parties
• injunction - similar to mandatory orders but interim and can be suspended (mainly used in human rights cases)

Question 15

academic commentary - how should the courts approach reform of the standing test?

Answer 15

Lady Hale - the criteria for standing need not be too restrictive, whilst also being able to fend off busybodies; ‘the issue is not about individual rights but about public wrongs’

Question 16

academic commentary - what is the criteria for standing and how can it be clarified?

Answer 16

Ahmed + Perry - standing is reliant on civic virtue (virtues mentioned in the case law e.g. ‘well-informed’, ‘expertise in area’ etc. as well as moral virtue) and the courts can clarify the test by outlining its definition and what its exceptions are as the building blocks are all already there.

Question 17

Ahmed and Perry’s proposal test for standing?

Answer 17

1. is the matter to which their application relates to of public interest?
2. does their application have merit?
3. is the claimant acting as a virtuous citizen would be in bringing their application? (do they have the right motivation in bringing the claim?)

Question 18

academic commentary - why is the current approach to standing sufficient?

Answer 18

Elliott - JR is about holding public authorities to account for their actions and therefore the ‘sufficient interest’ standing test allows those who are marginalised by decisions to speak up for themselves.