Chapter 1: Nature & Process of Judicial Review

Question 1

1. Preliminary requirements

1.1 Introduction

Answer 1

Judicial review (JR) is concerned with checking the exercise of public power. From a constitutional perspective the courts should not be concerned with the merits of a decision, but
rather with whether such a decision has been correctly made and implemented according to law

Question 2

Judicial Review is not the same as an appeal

Answer 2

It is important to appreciate that judicial review is not the same as appeal. The courts do not substitute their own decision for that of the decision-maker but can direct, for example, that the
decision be made again in the correct manner.

Question 3

1.2 Preliminary requirements before a claim can be pursued

Answer 3

There are limitations on the availability of judicial review. Five main preliminary issues need to be considered before a judicial review claim can be pursued:
* Amenability
* Procedural exclusivity
* Standing
* Time limits
* Ouster clauses

Question 4

1.3 Amenability: Only public law decisions

Answer 4

It is firstly necessary to determine whether the decision or action being challenged is appropriate
for the judicial review process. As a general rule, only ‘public law decisions’ are amenable to
judicial review. What then, is a public law decision?

Question 5

Judicial Review

Answer 5

Judicial review: The Civil Procedure Rules Part 54.1(2)(a)(ii) defines judicial review in terms of ‘a claim to review the lawfulness of […] a decision, action or failure to act in relation to the exercise of a public function’.

Question 6

Statutory Power

Answer 6

The archetypal situation, in which judicial review is the appropriate legal course of action, is when
the decision relates to a public body carrying out a public function, almost always through the exercise of some form of statutory power. Such bodies include central government departments, local authorities, inferior courts, statutory tribunals, and statutory bodies such as the Highway Agency.

Question 7

Decision in GCHQ

Answer 7

Note too that, since the decision in GCHQ, decisions taken in the exercise of prerogative powers are also amenable to judicial review.)

Question 8

1.3.1 Broadened scope

Public Element

Answer 8

There are other situations, however, in which judicial review can be the appropriate route for a
legal challenge. A considerable amount of case law has built up, dealing with decisions of nonpublic bodies that nevertheless contain a ‘public’ element.

Question 9

Classic Public Bodies

Answer 9

Historically, the courts looked at the source of a body’s power when deciding whether it would be subject to judicial review. If the body was created by or exercised power pursuant to statute, as with classic public bodies, its decisions would normally be amenable to judicial review

Question 10

R v Panel on Take-overs and Mergers, ex parte Datafin

Answer 10

The potential scope of judicial review has expanded, however, following the lead case of R v Panel on Take-overs and Mergers, ex parte Datafin. This predates the Civil Procedure Rules, but it remains a very important authority in understanding the courts’ approach to amenability.

Question 11

Key case: R v Panel on Take-overs and Mergers, ex parte Datafin [1987] QB 815 Detailed Case

Answer 11

Facts: The Panel on Take-overs and Mergers was a self-regulatory body created by the financial
services industry in the City of London. It was an unincorporated association with no legal
personality and had no direct statutory powers.

Question 12

Governmental-type function

Answer 12

Held: The Panel’s decision should be subject to judicial review. The court’s approach, reproduced
later in the CPR, was that decisions, taken by bodies performing ‘public law functions’, could be subject to judicial review. Lloyd LJ did not fully explain what he meant by this type of function,
but he pointed to the fact that the Panel regulated an important aspect of national, economic life
and so deemed it to be exercising a governmental-type function.

Question 13

Source of power is a statute, judicial review is amenable

Answer 13

If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review […] if the body is exercising a public law function, or if the exercise of its functions have public law consequences, then that may be sufficient to bring the body within the reach of judicial review.

Question 14

1.3.2 Regulatory authorities
& the but for test

Answer 14

The decisions of regulatory authorities are generally found to be amenable to JR if the functions
they are carrying out have a sufficiently public and governmental character. One way in which this issue is addressed is by the courts applying a form of ‘but for’ test.

Question 15

R v Advertising Standards
Authority Ltd, ex parte Insurance Services plc (1989) 9 Tr LR 169)

Answer 15

For example, a decision of the Advertising Standards Authority (R v Advertising Standards Authority Ltd, ex parte Insurance Services plc (1989) 9 Tr LR 169) was deemed to be amenable to
JR. The court considered that, had there not been a self-regulatory authority already in existence,
Parliament would almost certainly have needed to intervene and regulate the activity in question.
The function played by the ASA was therefore sufficiently public in nature

Question 16

R v Bar Council ex parte Percival [1990] 3 All ER 137

Answer 16

Similarly, in R v Bar Council ex parte Percival [1990] 3 All ER 137 a decision of the Bar Council was
found to be subject to review

Question 17

Sporting and religious regulation.

Answer 17

However, the decisions of some regulatory authorities have been found not to be amenable to
judicial review, particularly in the field of sporting and religious regulation.

Question 18

R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 2 All ER 853. Sir Thomas Bingham MR stated

Answer 18

While the Jockey Club’s powers may be described as, in many ways, public they are in no sense governmental […] the powers which the Jockey Club exercises over those who (like the applicant) agree to be bound by the Rules of Racing derive from the agreement of the parties and give rise to private rights on which effective action for a declaration, an injunction and damages can be based without resort to judicial review.

Question 19

Internal Matters within a religion are private in nature

Answer 19

Similarly, in R v Chief Rabbi of the United Hebrew Congregation of GB and Commonwealth, ex parte Wachmann [1993] 2 All ER 249 the court was of the opinion that internal matters within a religion were of a private nature and therefore could not be subject to judicial review.

Question 20

1.3.3 ‘Contracting out’

Answer 20

The policy of ‘contracting out’ services to private service providers, introduced since the 1980s, has complicated the amenability question. Two key cases can be compared

Question 21

Comparing two cases

Answer 21

In R v Servite Houses & London Borough of Wandsworth, ex parte Goldsmith [2001] LGR 55, a
housing association was found not to be exercising a public function in the provision of residential care to the elderly. The court reasoned that Wandsworth had discharged its statutory duties once it had arranged for the provision of accommodation by the housing association.

Question 22

Purely contractual

Answer 22

The source of the association’s power was purely contractual, deriving from the commercial relationship it had with Wandsworth, and they were not subject to statutory controls.

Question 23

R (on the application of A) v Partnerships In Care [2002] EWHC (Admin) 529

Answer 23

The managers of a private psychiatric hospital were deemed to be exercising a public function when they changed the focus of one of its wards from providing psychotherapeutic services to one primarily designed to treat patients with mental illness

Question 24

Statutory underpinning‘.

Answer 24

The court noted that the private hospital’s services were subject to specific ‘statutory underpinning‘. It was under a direct on-going statutory duty to provide adequate professional staff and treatment facilities. Its decision was therefore amenable to JR.

Question 25

1.4 Procedural exclusivity

Answer 25

Closely related to the more general question of amenability is the sub-issue of procedural
exclusivity. The House of Lords decisions in O’Reilly v Mackman [1983] 2 AC and Cocks v Thanet
DC [1982] 3 All ER 1135 established a general procedural rule

Question 26

The Lords determined that:

Answer 26

• Judicial review was the exclusive procedure for challenging public law decisions
• Private law matters were to be dealt with by ordinary action
• To bring a public law challenge in any other way than by JR would amount to an abuse of
  process of the court

Question 27

1.4.1 Exceptions to the procedural exclusivity rule

Answer 27

In the case of O’Reilly itself, Lord Diplock stated that two exceptions to the principle could apply.
Firstly, when neither party objected to the use of private law procedure and secondly, when the
contested decision was collateral, ie it arose out of or was incidental to some other legal claim. The decision in O’Reilly has been widely criticised because potentially ‘genuine’ cases could be struck out if incorrect procedure was used.

Question 28

Flexibility in Mixed Claims

Answer 28

A body of case law has built up around mixed claims, which are claims where the applicant’s
public and private law rights are affected. Case law authorities show that where a claim involves both public and private law rights the courts are willing to be flexible

Question 29

Roy v Kensington and Chelsea and Westminster Family Practitioner Committee (FPC) [1992] 1 AC 624

Answer 29

One of the most important decisions in this area is Roy v Kensington and Chelsea and
Westminster Family Practitioner Committee (FPC) [1992] 1 AC 624. In this case, a private law claim
brought by an NHS doctor was not struck out for abuse of process even though his case involved
public law rights concerning the statutory framework for NHS pay. This was because there were
private law elements to his case as well.

Question 30

Civil Procedure Rules dilution

Answer 30

The Civil Procedure Rules have further diluted the strictness of the courts’ initial approach to
procedural exclusivity. In the case of Clark v University of Lincolnshire and Humberside [2000] 3 All ER 752, the applicant was permitted to pursue her private claim even though it involved public law issues as well as private ones

Question 31

Just conduct

Answer 31

The court identified that a key question was not so much strict
adherence to procedural technicalities but rather whether the proceedings were being conducted justly in accordance with the general principles contained in Part 1 of the Civil Procedure Rules.

Question 32

Defence in private law

Answer 32

Note also that public law grounds can also potentially be used as a defence in private law proceedings – see for example Wandsworth London BC v Winder [1985] AC 461.

Question 33

1.5 Standing (Locus Standi)

Answer 33

Even if the relevant decision is amenable to judicial review, not everyone nor every organisation
can make an application. A necessary pre-condition for bringing a judicial review application is that the particular applicant has standing (or locus standi).

Question 34

Senior Courts Act 1981, s 31(3)

Answer 34

‘No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with the rules of court […]’.

Question 35

Furthermore, it provides that:

Answer 35

[…] the court shall not grant leave unless it considers that the applicant has sufficient interest
in the matter to which the application relates.

Question 36

Key case: IRC v National Federation of Self-Employed and Small Businesses
[1982] AC 617

Answer 36

The question of standing was considered by the House of Lords in this case, often known as the
‘Fleet Street Casuals‘ case. The case lacks a clear ratio, but a series of principles can be taken
from the various opinions of the law lords.

Question 37

Sufficient Interest Test

Answer 37

Lord Scarman described the ‘sufficient interest’ test as being a mixed question of law and fact
and emphasised the importance of the connection between the applicant’s degree of interest and
the matter in contention.

Question 38

Liberal Approach to standing

Answer 38

Lord Diplock endorsed a liberal approach to standing, including for groups, not simply directly
affected individuals

Question 39

Grave Lacuna

Answer 39

It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the
Federation, or even a single public-spirited taxpayer, were prevented by outdated technical
rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped.

Question 40

1.5.1 Two-stage approach

Answer 40

In Fleet Street Casuals the House of Lords took the view that standing was not just a preliminary issue. The merits of the case and issues of standing should be considered together at the main hearing too. A two-stage approach has since developed:

Question 41

Stage 1: Initial Stage

Answer 41

At this stage the standing test is designed to turn away those with little hope of success or vexatious litigants - these were described by the court in the Fleet Street Casuals case as ‘busybodies, cranks and other mischief-makers’.

Question 42

Stage 2: Full hearing stage

Answer 42

Standing can be re-considered. At this stage the court could consider in more detail whether the applicant can show a strong enough case on the merits, taking into account the proximity of his connection to the issue in the case.

Question 43

Fleet Street Casuals case

Answer 43

The Fleet Street Casuals case did not provide a definitive answer to the sufficient interest test in
circumstances where groups and individuals are not immediately affected by a decision but are
clearly not ‘busybodies’ or ‘mischief-makers’ either. A body of case law has developed concerning the standing rules and different categories of claimants.

Question 44

Associations (communal interests)

Answer 44

When it comes to associations of individuals, who would themselves all be seen to have sufficient interest, the courts are generally content to allow that association standing in order to challenge a matter in the communal interest.

Question 45

Key case: R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299 Facts

Answer 45

Facts: A decision was made to increase the number of taxi licences in Liverpool despite
assurances to the contrary from the Liverpool Corporation. The Association, a representative
group of taxi drivers, sought to review that decision. A key question for the court was whether the group, as opposed to the individual members of the group who were directly affected, had standing.

Question 46

Key case: R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators’
Association [1972] 2 QB 299 Facts

Answer 46

Facts: A decision was made to increase the number of taxi licences in Liverpool despite
assurances to the contrary from the Liverpool Corporation. The Association, a representative
group of taxi drivers, sought to review that decision. A key question for the court was whether the group, as opposed to the individual members of the group who were directly affected, had standing.

Question 47

Key case: R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators’
Association [1972] 2 QB 299 Judgement (presence of a logical connection)

Answer 47

Held: The court held that the Association should have standing. There was a logical connection
between the Association and the decision under challenge because its members were all affected.

Question 48

1.5.3 Pressure and interest groups are different from associations

Answer 48

The courts treat pressure groups differently from associations because they are unlikely to be in a position where all the membership is directly affected. Notwithstanding the liberal approach endorsed by Lord Diplock in Fleet Street Casuals, a restrictive view was adopted by the High Court in the case of R v Secretary of State for the Environment, ex parte Rose Theatre Trust Co Ltd.

Question 49

1.5.3 Pressure and interest groups

Answer 49

The Rose Theatre Trust was formed to act as an interest group, campaigning to have an
archaeological site ‘listed’ as an ancient monument. The group consisted of people with relevant
interest and expertise. A claim was brought against the Secretary of State when he refused to list
the site.

Question 50

1.5.3 Pressure and interest groups

Answer 50

In refusing to grant the Trust standing, the court held that individuals, who would not individually be given standing, should not gain it collectively just because they had formed themselves into a campaigning group. This was seen by the judge as an artificial device designed to engineer this status.

Question 51

Greenpeace and World Development Movement

Answer 51

Ex parte Greenpeace Ltd (No 2) [1994] 4 All ER 329

Standing: Standing: Given to Greenpeace to challenge
a licensing decision concerning the Sellafield nuclear processing plant in Cumbria.

Question 52

Factors the court took into account:

Answer 52

• Expertise and reputation of Greenpeace
• Its genuine concern for environmental issues
• Greenpeace had 2,500 supporters who
  lived in Cumbria and were therefore, arguably affected

Question 53

Ex parte World Development
Movement Ltd [1995] 1 WLR 386.

Answer 53

Standing: Given to WDM to challenge the decision of the Foreign Secretary to give UK
funding to the Malaysian government towards the construction of a hydro-electric dam.

Question 54

Factors the court took into account:

Answer 54

• Importance of vindicating the rule of law
• Likely absence of any other responsible challenger
• Nature of the breach of the duty against which relief was sought
• Prominent role of WDM in giving advice, guidance and assistance on overseas aid

Question 55

1.5.4 Individuals – ‘concerned citizens’

Satisfying the sufficient interests test

Answer 55

An individual who is directly affected by a public law decision should have little difficulty
satisfying the sufficient interest test. The courts have, however, had to consider those who seek to
challenge decisions because they are concerned as a citizen about a particular issue, not because they are directly affected by it. The liberalising trend in the courts’ approach to standing is well reflected in this area.

Question 56

In R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Rees-Mogg [1995] 1 W.L.R. 386,

Answer 56

The former editor of The Times newspaper, who had frequently written about EU membership, was held to have standing to challenge the signing of the Treaty of European Union (the Maastricht Treaty) because of his ‘sincere concern for constitutional issues’.

Question 57

R v Somerset County Council ex parte Dixon [1998] Env LR 111,
Sedley J:

Answer 57

Disagreed with the
approach of the court in Rose Theatre. In his view, it was not necessary for a claimant to establish that he had a greater right or expectation than any other citizen in order to be granted leave. Judicial review was not about rights: it was about wrongs, in the context of the misuse of public power. Dixon, who wished to challenge a planning permission decision was not a busybody or a trouble-maker. He was entitled to be concerned about illegality in the planning permission process

Question 58

Better challengers

Answer 58

It is notable, however, that the courts will not necessarily allow standing if there are other better
placed challengers

Question 59

R (DSD and NBV) v The Parole Board [2018] EWHC 694 (Admin),

Answer 59

The Mayor of London was one of
the parties seeking to challenge the Parole Board’s decision to allow the release of the convicted
rapist, John Worboys.

Question 60

Genuine Concern

Answer 60

The court accepted that the Mayor had a genuine concern for the potential danger that may be
faced by women in London. Statutory duties attached to his office, and he had an interest in
tacking crime and supporting its victims in the capital. However, his interest was not specific enough to the workings of the Parole Board. The Mayor’s interest was distinguished from that of
William Rees-Mogg because there were more directly impacted challengers to the Parole Board’s
decision, notably the individuals, DSD and NBV, who claimed to be Worboys’ victims

Question 61

Court stated

Answer 61

The Mayor is, of course, entitled to comment on Parole Board decisions, and any concerns he
might express would attract public attention, but, in our view, he is in no different position from
any other politician or, indeed, any member of the public.

Question 62

1.6 Time limits

Answer 62

The time limit for a judicial review application is short and strictly applied

Question 63

CPR Part 54.5(1) states
that:

Answer 63

A claim must be filed (a) promptly and (b) in any event no later than 3 months after the grounds to make the claim first arose. Therefore, judicial review can sometimes be refused if a claim is not filed promptly, even if it was
filed within three months.

Question 64

CPR Part 54.5(2)

Answer 64

Stipulates that time cannot be extended by agreement between the parties, although it can be extended by the court pursuant to its general power under CPR Part 3.1(2)(a).

Question 65

Senior Courts Act 1981, s 31(6)

Answer 65

The Senior Courts Act 1981, s 31(6) makes it clear that, where there has been undue delay, judicial review can be refused if the court ‘considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

Question 66

1.7 Ouster clauses

Answer 66

An ouster clause is a legislative provision which, on its face, appears to exclude (to ‘oust‘) the
jurisdiction of the Administrative Court to conduct a judicial review.
Such clauses are rare. However, if they do appear to apply, the courts are generally hostile
towards them.

Question 67

Insult to Rule of Law

Answer 67

They are seen, in constitutional terms, as representing an insult to the rule of law. Judicial review
is seen by the courts as a vitally important constitutional function, designed to ensure that the
executive is kept legally to account. Moreover, it is seen as an important right for all citizens

Question 68

Constitutional Duty

Answer 68

The modern judiciary has responded to such threats to its jurisdiction by developing, as part of its constitutional duty of interpreting statute, a very strong presumption that Parliament does not intend to exclude judicial review. The leading case in this area is summarised below.

Question 69

Key case: Anisminic v Foreign Compensation Commission [1969] 2 AC 137

Answer 69

Facts: Section 4(4) of the Foreign Compensation Act 1950 provided that a determination made by
the Foreign Compensation Commission (FCC) ‘shall not be called into question in any court of
law’. Anisminic Ltd. wished to challenge a determination by the FCC on the grounds that it had
misunderstood the legal effect of the statutory framework under which it operated and had
therefore reached an illegal decision.

Question 70

Key case: Anisminic v Foreign Compensation Commission [1969] 2 AC 137 Judgement

Answer 70

Held: The House of Lords held that the ouster clause did not prevent Anisminic from challenging the decision of the FCC. It found that, as the FCC had committed an error of law and therefore its decision was illegal, its decision was not a ‘determination’ for the purposes of s 4(4); it was only a ‘purported determination’. As s 4(4) did not apply, the ouster clause therefore did not take effect.

Question 71

Supreme Court Approach ouster clauses

Key case: R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC
22

Answer 71

Facts: Section 67(8) of the Regulation of Investigatory Powers Act 2000 appeared to preclude
judicial review of the decisions of the Investigatory Powers Tribunal (IPT). The section stated that:
‘determinations, awards and other decisions of the Tribunal (including decisions as to whether
they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court’

Question 72

Key case: R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC
22

Answer 72

Held: The Supreme Court held that this did not exclude judicial review and re-emphasised the
importance of the presumption against ousting the jurisdiction of the court. It was for the courts,
not the legislature, to determine the limits set by the rule of law to the power to exclude judicial
review.

Question 73

Striking an appropriate balance

Answer 73

The courts strike an appropriate balance between the inferred intention of Parliament and
the rule of the law. Judicial review can only be excluded by clear or explicit words. Noting the similarity between the words used in s 67(8) and those used in the provision in Anisminic, Lord
Carnwath held that more explicit wording would be required to exclude the jurisdiction of the
court.

Question 74

1.7.1 Time limit ousters (partial ousters)

Answer 74

A partial or time limit ouster clause is a legislative provision that excludes the jurisdiction of the court once a time limit has expired. If one applies, it is therefore even more restrictive for claimants than usual, but it does not remove access to judicial review entirely

Question 75

Court of Appeal in R v Secretary of State for the Environment, ex parte Ostler [1977] QB 122.

Answer 75

The courts have therefore responded to these provisions by taking them at face value and
enforcing them. This was made clear by the House of Lords in Smith v East Elloe RDC [1956] 1 All
ER 855. Although there was some criticism of the East Elloe decision in Anisminic, the approach was reaffirmed by the Court of Appeal in R v Secretary of State for the Environment, ex parte Ostler [1977] QB 122.

Question 76

Civil Procedure Rule 54.5(3)

Answer 76

It has more recently been reinforced by Civil Procedure Rule 54.5(3) which provides that the
normal time limit does ‘not apply when any other enactment specifies a shorter time limit for
making the claim for judicial review’.

Question 77

Civil Procedure (Amendment No 4) Rules 2013

Answer 77

For example, the Civil Procedure (Amendment No 4) Rules 2013 provide shorter time limits for
challenges to planning decisions and public procurement decisions. The limitation periods are
now six weeks and 30 days respectively for these two areas of judicial review.

Question 78

1.8 Reform of judicial review

Answer 78

In recent years, there has been a significant degree of governmental criticism about the scope of judicial review. Some changes have been made, in addition to the Civil Procedure (Amendment No 4) Rules 2013, and others are planned.

Question 79

Not substantially different test

Answer 79

See s 31(2A) Senior Courts Act 1981, as amended by the Criminal Justice and Courts Act 2015. The provision states that the court must refuse to grant relief on an application for judicial review ‘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’. This affects a claimant’s standing and access to remedies.

Question 80

Independent Review of Administrative Law

Answer 80

This reported in March 2021. It did not propose the wide-scale changes that some in government wished for but it appears that calls for change have not ended. To date further reform is restricted to s 1 of the Judicial Review and Courts Act 2022 relating to the effect and timing of quashing orders.

Question 81

2. Procedure and remedies

Context

Answer 81

Judicial review is concerned with checking the exercise of governmental power. Courts and tribunals with judicial review jurisdiction are not concerned with the merits of a decision, and they do not remake the decision as an appeal court might. In judicial review the court considers whether a public law decision has been correctly made and implemented according to law.

Question 82

No absolute right

Answer 82

Consequently, there is no absolute right to bring a judicial review claim, which can be contrasted with rights of appeal under various statutory schemes. Judicial review claimants must apply to the court for permission.

Question 83

2.2 Exhaustion of alternative remedies

Answer 83

The first point to note is that judicial review will only be appropriate if there is no suitable
alternative remedy, or alternative remedies have been exhausted. Such alternatives might include
a statutory right of appeal; internal complaints or appeal procedures; or a complaint to an
ombudsman. If alternative remedies are available, the court can refuse permission to bring the
claim or refuse a remedy

Question 84

R (Cowl) v Plymouth City Council (Practice Notice) [2002] 1 WLR 803

Answer 84

The Council had offered to
put the claimants’ grievance before a statutory complaints panel, but the claimants had still
sought judicial review.

Question 85

Insufficient attention

Answer 85

The Court of Appeal observed that insufficient attention has been paid to the paramount
importance of avoiding litigation wherever possible and emphasised that, unless there is good reason, the courts should not permit proceedings for judicial review to proceed if a significant part of the issues between the parties could be resolved outside the litigation process.

Question 86

2.3 Procedure for bringing a judicial review claim

Answer 86

1. Ex Parte Application of permission
2. Permission granted if sufficient test and an arguable case
3. Full inter partes hearing

Question 87

2.4 Remedies

Quashing Order

Answer 87

The most common remedy. It invalidates the impugned decision, usually meaning that the
public body will need to take the decision again, applying the correct law or following a
fair procedure.

Question 88

Prohibitory order

Answer 88

Prevents a public body from acting or continuing to act unlawfully.

Question 89

Mandatory order

Answer 89

Compels the public body to perform a public law duty imposed by law.

Question 90

Declaration

Answer 90

The court may declare what the legal position is, or what the rights of the parties are. This
does not question the public body’s exercise of the power. Declarations can be made without
any other order or alongside other orders

Question 91

Injunction

Answer 91

Orders a party to perform, or refrain from performing, a specific act. Injunctions are relatively rare. However, they are sometimes granted at the permission stage of the proceedings as a form of interim relief - either before or after permission is granted.

Question 92

Damages

Answer 92

May be awarded but only if either (i) the court is satisfied that damages could have been
awarded in a private law action or (ii) the public body has breached its duties under the HRA 1998

Question 93

Prerogative orders

Answer 93

The first three remedies – quashing, prohibitory, and mandatory orders – are collectively known as the ‘prerogative orders’, specific to judicial review. These are specific to judicial review, whereas the latter three can be granted in areas of private law too. It is important to note that, as suggested above, remedies can be granted on an interim or final
basis.

Question 94

2.5 Nature of remedies

Answer 94

The remedies, which the court may grant, are discretionary in nature. The significance of this was an important issue in Walton v Scottish Ministers [2012] UKSC 44

Question 95

Necessary counter balance

Answer 95

Here, Lord Carnwath argued that, given the widening of the rules on standing in recent decades,
judicial discretion on remedies should act as a ‘necessary counterbalance’.

Question 96

Very attenuated nature

Answer 96

On the facts Walton was unsuccessful in his challenge which related to the proposal for a new bypass for the city of Aberdeen. However, had he won the case, it may have been appropriate for the court to have taken into account what Lord Carnwath called the ‘very attenuated nature’ of his interest in the matter by granting a remedy some way short of an outright quashing of the road scheme in dispute

Question 97

Balancing the degree of individual interest

Answer 97

In other words, the discretionary nature of remedies can be applied in a proportionate way in
order to balance the degree of individual interest in the matter against the wider public interest.

Question 98

3. Summary

Answer 98

• A decision will be amenable to judicial review if it is a public law decision, defined in CPR r 54
  as ‘a decision, action or failure to act in relation to the exercise of a public function’.
• This will be satisfied if a classic public body is exercising powers whose source is statute or
  secondary legislation (Datafin), or the royal prerogative (GCHQ)
• Otherwise, it is a matter of examining the nature of the power (Datafin), alongside the factors identified in key cases concerning regulatory bodies, and private companies who have had
  services ‘contracted out’ to them by public bodies

Question 99

3. Summary

Answer 99

• The decision in O’Reilly established a general procedural rule, that judicial review was the
  exclusive procedure for challenging public law decisions. To bring a public law challenge any other way would amount to an abuse of process.
• Subsequently, exceptions to this criticised ruling have arisen in the context of mixed cases
  involving public and private law claims (Roy; Clark).

Question 100

3. Summary

Answer 100

• Standing: An individual or organisation must have ‘sufficient interest in the matter to which the
  application relates’ (s 31(3) SCA).
• Time limits: Claims must be filed ‘promptly’ and no later than 3 months – there must be no
  ‘undue delay’ on the part of the claimant. The court can extend time. Time limit factors can
  affect whether and what relief is granted by the court.
• Total ouster clauses: The courts are unlikely to uphold a total ouster clause (Anisminic; Privacy
  International).
• Partial ouster clauses: The courts are likely to uphold a partial ouster clause which abridges
  the limitation period (Smith v East Elloe; ex p Ostler).

Question 101

3. Summary

Answer 101

• Alternative remedies must be exhausted before the court will grant permission to bring a
  judicial review claim.
• There is a two-stage test to bring a judicial review claim: (a) the application for permission, and
  (b) the full hearing.
• There are a range of discretionary remedies that may be applied for and granted in judicial review, on an interim or final basis.