Case Law - Judicial Review

Question 1

Judicial Review procedure is governed by two pieces of primary legislation. What are they?

Answer 1

s 31 of the Senior Courts Act 1981) and

by rules of court contained in Part 54 of the Civil Procedures Rules (CPR) 1998.

Question 2

O’Reilly v Mackman (1983) - Procedural exclusivity

Answer 2

According to O’Reilly v Mackman it is abuse of the process of the court to use private law proceedings to challenge the decision of a public authority, unless the decision affects a private right.

Question 3

Datafin test

Answer 3

Claimants can seek judicial review only of decisions made by public bodies. Decisions of private bodies must be challenged under private law proceedings.

Two part test to determine what constitutes a public body established by Lloyd LJ in R v Panel on Takeovers, ex p Datafin pcc 1987

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.

If this part of the test is not satisfied then the court goes on to apply the second part.

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

Question 4

R v Sec of State for Foreign Affairs, ex p World Development Movement Ltd 1995

Answer 4

Factors that would be taken into account when deciding whether a pressure group has sufficient standing (as outlined by the Divisional Court)

1. The need to uphold the rule of law
2. The importance of the issue raised
3. The likely absence of any other responsible challenge
4. The nature of the alleged breach of duty
5. The role of the pressure group

The courts emphasised that the fifth factor as being particularly relevant to pressure groups, pointing out the WDM’s expertise and prominence in promoting and protecting aid to developing nations. A group of local people forming a pressure group to oppose a building etc would not normally have to satisfy the facts set out in ex p WDM since they would be individually personally affected.

Question 5

R v Stratford upon Avon DC ex p Jackson 1985.

Answer 5

The courts do reserve a discretion to extend the time limit but only for a good reason. (R v Stratford upon Avon DC ex p Jackson 1985).

Hardy v Pembrokeshire CC [2006] – a court is not obliged to allow time extensions.

R (Kigen) v Sec of State for the Home Dept 2015, the Court stated that, due to changes which had occurred since the dec in the Jackson case, it was no longer appropriate to treat delay in obtaining legal aid as a complete answer to a failure to comply with procedural requirements. However it may still be a factor that can be taken into account.

Question 6

R v Dairy Produce Quota Tribunal ex p Caswell 1990

Answer 6

Even if permission was granted and the case proceeded to a full hearing, a remedy could be refused if the application had been made outside the 3 month time limit.

Question 7

Anisminic v Foreign Compensation Commission

Answer 7

Full ouster clauses will not protect decisions that were never legally valid and it’s up to the court to review the decision to decide whether it is legally valid or invalid. H of L held that the FCC had made an error of law in deciding that a purchaser of business property amounted to a ‘successor in title.’

Question 8

R v Epping and Harlow Commrs ex p Goldstraw 1983

Answer 8

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

Question 9

Under s 31 (4) of the Senior Courts Act 1981,

Answer 9

…..the Admin Court can award damages on a claim for jud review where the claimant is seeing other relief (i.e. a quashing order) and damages could have been awarded in a civil claim.

Question 10

R v Knowsley MBC, ex p Maguire 1992

Answer 10

There is no general right in law to damages for maladministration.

Question 11

s 31 (3C) of the Senior Courts Act 1981

Answer 11

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 12

Section 31 (6) of the Senior Courts Act 1981

Answer 12

allows a court to refuse a claim where it feels there has been ‘undue delay’.

Question 13

CPR, r 54.5

Answer 13

requires that a claim form must be filled in promptly and in any case within a max of 3 months after the ground to make the claim first arose.

Question 14

R v Sec of State for the Environment ex p Ostler 1977

Answer 14

The court had no jurisdiction to entertain an application made outside such time limit stated in the partial ouster clause whatever the claimant’s grounds.

Smith v East Ellow Rurual District Council [1956] unlike time limits, the courts have no discretion to grant an extension even if there are good reasons for the delay when there is a partial ouster clause.

Question 15

R v Richmond upon Thames LBC, ex p McCarthy and Stone (Developments) Ltd 1992.

Answer 15

Public authorities cannot act without legal authority/lack of a relevant power.

Question 16

Vine v National Dock Labour Board 1957

Answer 16

There is a general rule that decision-making powers, once given by Parliament cannot then be further delegated or ‘sub-delegated’.

Question 17

Carltona v Commissioners of Works 1943

Answer 17

Government Ministers sub delegating decision making powers to civil servants in their depts provides and exception to the general rule against delegation.

Question 18

R v Adams 2020

Answer 18

The Supreme Court stated that the Carltona principle would not apply if

a) It was clear from the wording of the statute that the decision was one for the Minister alone or
b) The decision was a crucial one with serious consequences and placing a duty on the individual Minister to take a decision would not place an excessive burden on them.

Question 19

Local Government Act 1972 s 101

Answer 19

Under s 101 local authorities may delegate decision making powers to committees (or to an individual officer), provided they make a formal resolution to do so.

Question 20

Lavender & Sons v Minister of Housing and Local Govt 1970

Answer 20

Acting under the dictation of another– public bodies cannot act under the dictation of another person or body.

Question 21

British Oxygen v Minister of Technology 1971.

Answer 21

Anyone who has statutory discretion must not shut his ears to an application and must be always willing to listen to anyone with something new to say.

Question 22

Congreve v Home Office 1976

Answer 22

Statutory powers cannot be used for an unauthorised purpose (Using Powers for an Improper or Unauthorised Purpose)

Question 23

Westminster Corp v LNWR 1905

Answer 23

Where there are dual purposes behind a decision, provided the permitted/authorised purpose is the primary purpose, then the decision is not ultra vires and should stand.

Question 24

In R v ILEA ex p Westminster City Council 1986.

Answer 24

The unauthorised purpose must not have materially influenced the overall decision.

Question 25

Roberts v Hopwood 1925

Answer 25

A public authority must both disregard irrelevant considerations and take into account relevant considerations when exercising its powers.

Question 26

Padfield v Minister of Ag 1968

Answer 26

Irrelevant considerations should not be taken into account

Question 27

Anisminic Ltd v Foreign Compensation Commission 1969

Answer 27

Errors of law which affect a decision will always be amenable to judicial review.

Question 28

R v Sec of State for the Home Dept, e p Khawaja 1984.

Answer 28

Decisions based on alleged errors of fact which got to the root of a public authority’s capacity to act (‘jusridictional’ or ‘precedent’ facts) are reviewable.

Question 29

Associated Provincial Picture Houses Ltd v Wednesbury Corp 1948

Answer 29

Test was whether having regard to relevant considerations only, the decision maker came to a conclusion so unreasonable that no reasonable authority could ever have come to it.

Question 30

CCSU v Minister for Civil Service 1984

Answer 30

Lord Diplock stated that, to be irrational, a decision needed to be so outrageous in its defiance of logic, or accepted moral standards, that no sensible person could have arrived at it.

Question 31

Fairmount Investments Ltd v Sec of State for the Enviornment 1976

Answer 31

Lord Russell stated that ‘it is to be implied, unless the contrary appears, that Parliament does not authorise by the statute the exercise of powers in breach of the rules of natural justice and that Plt does… require compliance with those principles.’

Question 32

Dimes v Grand Junction Canal Proprietors 1852

Answer 32

Established that an interest which may lead to financial gain falls into the direct interest category.

Question 33

R v Bow Street Metropolitan Stipendiary Magistrate and Others, ex p Pinochet Ugarte 1999

Answer 33

Head of bias had been confined to cases of direct financial or propriety interest in the case.
This was extended to cases of non-pecuniary interest, where the decision maker is involved in promoting the same cause as a party to the case.

Question 34

Porter v Magill (2002)

Answer 34

An example might be where it is a relative of the dec maker who has the interest. In such cases, the reviewing court cannot simply quash the dec automatically; it has to investigate the relationship between the indirect interest and the decision.

H of L said the following test should be applied in cases of indirect bias; would a fair minded and impartial observer concluded that there had been a real possibility of bias? The court does not ask whether the dec was in fact affected by the bias of the dec maker but how the dec would appear to the observer.

Question 35

Board of Education v Rice (1911)

Answer 35

Lord Loreburn stated that there is a duty on decision makers to act in good faith and listen fairly to both sides. The right to a fair hearing is flexible and depends on the context of individual cases.

Question 36

In McInnes v Onslow Fane 1978

Answer 36

Megarry V-C established three categories of claimant, depending on the nature of their interest.

McInnes v Onslow-Fane shows that as a general rule, applicants are merely entitled to have their cases heard honestly and without bias.

Question 37

Ridge v Baldwin (1964)

Answer 37

Forfeiture cases – Forfeiture claimants are entitled to know the case and evidence against them. .

Question 38

R v North and East Devon Health Authority, ex p Coughlan 2001.

Answer 38

2) Substantive legitimate expectation – where the dec maker has led someone to believe that he or she will receive a benefit.

Lord Woolf CJ analysed the court’s role when considering a challenge under legitimate expectation. There were at least three possible outcomes:
1. Public Authority only needs to bear in mind its previous policy/representation. The court’s role is to simply review whether a decision is rational. Here, the court is merely applying traditional Wednesbury unreasonableness.

2. Promise/practice creates legitimate expectation of… For example, being consulted before an adverse decision is taken.
3. Promise/practice creates legitimate expectation of a substantive benefit. Courts will decide whether it would be an abuse of power to frustrate (illegality).

Here, the court is deciding whether it would amount to an abuse of power to allow the decision-maker to depart from a promise. This type of legitimate expectation (found in Coughlan) is likely to be exceptional. Public bodies will not normally be legally bound to maintain a policy which they have reasonably decided to change.

Question 39

R (on the application of Niazi) v Sec of State for the Home Dept 2008

Answer 39

Laws LJ stressed that a substantive legit expectation would only arise where the public body concerned had made a specific undertaking directed at a particular individual or group that the relevant policy would be continued.

Such undertakings are likely to be directed at a small class of people. This is likely to be exceptional.

Public bodies will not normally be legally bound to maintain a policy which they have reasonably decided to change. In this case, the group of people was small, the financial impact, not severe.

Question 40

Lewis v Heffer 1978

Answer 40

The ‘right to a fair hearing’ may not apply in certain situations, for example if a decision which has been made is merely ‘preliminary’.

Question 41

R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators 1972

Answer 41

A procedure was to be followed if it was based on a written promise by the decision maker.

R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators 1972 – it should have first consulted with the existing taxi drivers before issuing new licences as the City Council had given them a written assurance that they would do so.

Question 42

R (on the application of Hasan) v Sec of State for Trade and Industry 2008

Answer 42

The law did not recognise a general duty to give reasons for an administrative decision.

Question 43

R v Civil Service Appeal Board, ex p Cunningham 1991

Answer 43

However exemptions exist with regards to giving reasons. One is that when a decision is taken which, in the absence of reasons, looks ‘aberrant’ (i.e. completely wrong).

A claimant should have effective right to challenge a dec which looks wrong; where in the words of Lord Donaldson MR, the decision ‘cries out for explanation’.

Question 44

R v Sec of State for the Home Dept, ex p Doody 1994

Answer 44

The duty to give reasons applies where a decision is taken as to the length of a prisoner’s term of imprisonment.

The exception covers cases where the impact on a person’s rights is serious (e.g. personal liberty) and the public interest requires the giving of reasons.

Question 45

R (Citizens UK) v Sec of State for the Home Dept 2018

Answer 45

Generally a decision maker must give sufficient reasons to enable a potential claimant to be able to challenge the legality of its decisions to court

Question 46

Lloyd v McMahon 1987

Answer 46

Every claimant, however, regardless of the category of case, is entitled to a hearing which is fair and reasonable in all the circumstances.

Question 47

R v Hull Prison Board of Visitors ex p St Germain 1979

Answer 47

Lane LJ accepted that generally there would be a discretion as to whether cross examination should be permitted but if fairness in the circumstances required it, cross examination should be permitted. Here it was required to enable the prisoners to contest hearsay evidence.

Question 48

Bates v Lord Hailsham

Answer 48

The rules of natural justice do not apply where the decision maker has a legislative rather than a judicial function.

Question 49

Bradbury v London Borough of Enfield 1967

Answer 49

Failure to comply with a mandatory requirement renders the decision invalid on grounds of procedural ultra vires. The requirements of the Act were an important procedural safeguard for those likely to be affected

Question 50

Coney v Choyce 1975

Answer 50

Failure to comply with a directory requirement does not render the decision invalid.

Question 51

R v Soneji (2006)

Answer 51

Lord Steyn said courts should consider the consequences of non compliance with a statutory procedure. Would Parliament have intended the consequence of non compliance with the relevant statutory requirement to be the invalidity of the decision that had been taken?

The question for the court is whether it had been the intention of Parliament that failure to comply with the procedural requirement would render the decision unlawful.