Administrative Law Flashcards
Standing for JR
Sufficient interest - not if interests are affected but do they have a good case
What makes an interested party for JR
Directly affected by decision
Things court will consider when deciding whether to admit an interested party
Size of organisation and number of members affected Rule of law Importance of issue Chance of another complainant Nature of breach
Which court is JR in and which is it appealed to
In HC. Appeal from administrative court to court of appeal
When won’t permission for JR be granted
Not a public law matter
Other appeal options not exhausted
Not appropriate on policy grounds
Wouldn’t have been substantially different for applicant
Time limit for JR claim
Three months from grounds arising
How to tell if it is a public body
Is the source of its powers royal prerogative? If not apply Datafin
What did datafin say to consider
Is it a public body?
Source of power (not only consent)
Nature of body’s duties (public law duties)
Consequences of body’s decisions (public law sanctions)
What to consider when deciding if a body is a public body
Do it’s decisions affect the public at large
Can it’s decisions be imposed without consent
Are they carrying out functions normally performed by an organ of gov
Is there any statutory regulations or gov control
What does the PAP for JR require
C to write to D with letter before claim
D has 14 days to reply
(Organise funding here if C is using public funds)
File claim form promptly and not later than 3 months after grounds arose
Serve claim form on D and interested parties within 7 days of its issue
Can parties agree to extend three month JR time limit
No
Do parties always have to follow JR PAP
Not if they think it’s inappropriate but must say why you think this in the claim form
Remedies for JR
Declaration of unlawfulness Prohibitory order Mandatory order Quashing order Injunction Damages in conjunction with above but not alone ( same for restitution or sum due)
Illegality includes….
Ultra Vires Improper purpose Relevant and irrelevant considerations Lack of evidence Unlawfully failing to exercise a discretionary power
Ultra vires
Must not go beyond powers conferred
Empowering act will say what powers conferred
Not just if the power is conferred but also how it was used
Misinterpreted or abused power?
Improper purpose
If purpose is in statute then that is exhaustive
If not the court will imply purpose.
Cannot use power to:
Penalise conduct
Promote political and moral views
Gain and unauthorised financial advantage
Defeat the power and purpose of the act
What if there is more than one purpose? (Improper purpose- illegality)
If main purpose of valid secondary invalid purpose cannot make decision unlawful unless it significantly influenced the decision
Relevant and irrelevant considerations
If expressed in statute then that is exhaustive
If not then implied the same as improper purpose
Lack of evidence
Decisions must be based on facts and evidence before the body
Cannot ignore relevant evidence, misinterpret evidence or unreasonably make a decision which is contrary to the weight of evidence presented during decision making process LPC
Unlawful failure to exercise a discretionary power
When the body refuses to think about exercising discretion
or
When they consider exercising discretion but decide not to
Can have policy but cannot refuse to consider a type of application. Consider all on their merits. Do not rule out changing policy and listen to arguments to change it
What does procedural impropriety mean
Breach of natural justice or failure to comply with statutory procedural requirements
Has there been a breach of natural justice
Does NJ apply
To what extent
Has it been breached
Do the rules of natural justice apply
Apply to all courts and tribunals
And where an administrative body acts judicially
Judicially means any decision affecting the rights of the individual
What does it mean to act judicially
Making a decision affecting the rights of the individual
How do you know to what extent the rules of natural justice apply
This depends on the type of hearing
Any legit expectations
National security
Need to keep secrecy for public interest
What does natural justice mean
Impartiality and fairness
How do you know if the rules of natural justice have been breached
Is there a real possibility of bias and have all parties to the dispute been given a fair hearing
What identifies a fair hearing
Both sides have the right to be heard by an independent tribunal
To have notice of charges of misconduct
To be heard in answer to those charges
Must be given chance to state case and challenge prejudicial info
Reasonable chance to prepare case before hearing
What are the two types of bias
Pecuniary bias- financial interest in outcome
Personal bias- anything which makes them more favourable towards one person
Do you need to prove bias to show a breach of natural justice
No just that a fair minded and informed observer would see a real danger or bias
Does a fair trial require legal representation
Yes if it is a court or tribunal otherwise it depends on seriousness, complexity ability of party
Is there a right to be given reasons for a decision
No, the burden is on the person arguing that reasons should have been given to show that the proceedure was unfair
Relevant considerations when determining if reasons should have been given
Body exercising judicial function Needed for justice Otherwise decision would appear aberrant Importance of detecting errors Absence of right of appeal
What is irrationality/ wednesbury unreasonableness
So absurd that no reasonable authority could have come to it
What does proportionality mean
Reasonable link between the objective sought and the means used to achieve it
What does the court ask when considering if there has been a human rights violation
Where the rights have been breached not whether they were taken into consideration when making the decision
When a decision is challenge by JR under HRA for being disproportionate what must the authority show
That it had proportionate aims not that it considered proportionality in its decision
In what cases is proportionality considered
Is legislation compatible with ECHR
Applying EU law
Deciding whether to quash punishment
Asked to review a decision based on unreasonableness
What will a court consider when human rights have been limited
Was it no more than absolutely necessary to achieve the legitimate aim
meaning of irrationality
so outrageous in its defiance of logic or of accepted moral standards that no sensible person could have arrived at it
what is included in the ground of illegality
relevant and irrelevant considerations
fettering of discretion
delegate decision making powers (except carltona principle and s101 LGA 1972)
using powers for improper or unauthorised purpose
errors of fact - primary purpose must be authorised. did the unauthorised purpose materially influence the decision?
errors of law
what does procedural impropriety consist of
breach of statutory procedure
breach of natural justice (fair hearing or bias)
what is required by natural justice for a hearing to be fair
act in good faith and listen fairly to both sides
for a hearing to be fair does natural justice require oral hearing, cross examination of witness and reasons
not always necessary
when is there bias
if there is a direct interest - must quash, bias is presumed
indirect interest - may or may not quash
what is a direct interest
financial interest, proprietary interest or personal interest regarding same cause
what is an indirect interest
a relative of the decision making has the interest
when do the rules of natural justice not apply
when the decision maker has a legislative rather than judicial function
do statutory prcoedural requirements always need to be adhered to
2 types: mandatory and directory
mandatory - must be followed or decision is invalid for ultra vires
directory - does not need to be adhered to
how to tell if a statutory requirement is mandatory or discretionary
court ask would parliament have intended the consequences of non-compliance with the requirement to be the invalidity of the decision
when does legitimate expectations apply
can apply to any of the 3 JR grounds
when the authority made a specific undertaking to an individual or group that policy would continue
are there compelling reasons to change policy?
is there overriding public interest to justify breach of expectation?
pre-action protocol for JR
letter before claim
14 days to reply
(unless urgent or time limit less than 3 months)
permission - standing and time limits (not granted if wouldn’t have been substantially different for C unless public interest)
hearing of claim
can ouster clauses in enabling acts prevent JR
full ouster clause - prevent any challenge
partial ouster clause - prevents some challenge
if ouster clause imposes time limit on challenge can the court extend it
no - not for any reason
when doesn’t an ouster clause apply
if the decision maker steps outside their permitted area the ouster clause won’t apply
principle of procedural exclusivity
use JR for public law case
if case has public and private elements then can use private route
what is a public body
RP or consider nature of power and if it is exercising public law functions
time limits for JR
3 months
planning act 6 weeks
public procurement 30 days
can JR time limit be extended
yes for good reasons but not obliged to
can refuse if there has been undue delay
can you use JR if there is a statutory remedy available
must exhaust statutory remedy first
when won’t the court grant C a remedy for JR
if the outcome wouldn’t have been substantially different
unless public interest
remedies for JR
prerogative remedies: quashing order prohibiting order mandatory order non-prerogative/private law remedies injunction declaration damages
can a declaration be ignored
yes no legal sanctions
when will damages be granted for JR
if C is seeking other remedies and damages could have been awarded in a civil claim (means C must have a private law cause of action eg tort, contract or ECHR breach)
will there always be a remedy for a successful JR claim
no JR remedies are discretionary
