Constitutional and Administrative Law - Judicial Review

Question 1

Existence of a contract

Answer 1

Regulated by private law and not public law - therefore JR not available

Question 2

Claim must be against a public body

Answer 2

Secretaries of State and government departments, Local Government, including councils, and agencies set up by government by statute or under the royal prerogative

Question 3

Pre-action protocol

Answer 3

Claimant should send a letter to the potential defendant identifying the issues. Defendant should respond within 14 days.

Question 4

Time limits

Answer 4

Claim must be brought promptly but no later than 3 months after the decision. Possible for court to refuse permission even if claim brought within 3 months because it wasn’t brought ‘promptly’

Question 5

Matters of mixed public and private law

Answer 5

Can be resolved in private law

Question 6

Questions of fact

Answer 6

Cannot be resolved by JR

Question 7

Grounds for review

Answer 7

Illegality, procedural impropriety, unreasonableness and breach of legitimate expectations

Question 8

Unlawful delegation of power

Answer 8

Power delegated by an Act of Parliament cannot be delegated again without being approved by the AoP that granted the power in the first place

Question 9

Mandatory v Directory Requirement

Answer 9

Failure to follow a mandatory requirement invalidates the decision, this is not the case with a directory requirement. Whether a requirement is mandatory or directory depends on the words used in legislation (e.g. must or shall) and whether anyone will be caused injustice or hardship if the requirement is not followed

Question 10

Right to be heard

Answer 10

In forfeiture cases (i.e. a right is being taken away from someone) they have a right to hear the case against them and respond. In application cases (i.e. someone is acquiring a right) the right to be heard may impose relatively few requirements

Question 11

Automatic disqualification rule

Answer 11

If decision maker has a financial interest or a non-financial interest which is so closely connected to issues raised by the decision they are automatically disqualified from hearing the case

Question 12

Apparent bias

Answer 12

Would a fair minded and informed observer conclude there was a real possibility of bias?

Question 13

Previous action

Answer 13

Previous conduct of a public body can give rise to a legitimate expectation

Question 14

Unreasonableness and irrationality

Answer 14

The decision was so outrageous or absurd that it is outside the power of the decision maker and cannot be considered lawful. High threshold to meet

Question 15

Proportionality for Human Rights

Answer 15

Because unreasonableness test is so hard to meet, proportionality test applied in this context

Question 16

Remedies

Answer 16

Quashing Order, Mandatory Order, Prohibiting Order, Injunction and Declaration

Question 17

Remedies can be combined