Grounds For Judicial Review

Question 1

There are three grounds for judicial review

Answer 1

CCSU case

• Illegality
• Irrationality
• Procedural impropriety

Question 2

What is illegality?

Answer 2

When a decision is “ultra vires” meaning beyond powers

Question 3

Without lawful authority

Answer 3

“McCarthy v Stone”

• acting ultra vires
• where a public body acts in a way that is not legitimised by relevant power/statute

Question 4

Wrongful delegation

Answer 4

“Vine”

• General rule is Parliament delegates power
• The person whom the power is delegates to, cannot sub-delegate the power to someone else

Question 5

Exceptions to wrongful delegation

Answer 5

“Carltona”

• Non-delegation doesn’t apply to Government ministers

“S101 LGA”
- Lawful for councils to delegate to committees provided its done under the guidelines

Question 6

Ferreting of discretion

Answer 6

1. Acting under dictation of another “Lavender v Sons”
   - public body basing decision on another Minister’s objection
2. Formulating a general policy as to the exercise of discretion “British Oxygen”
   - one must always be willing to listen to anyone with something new to say

Question 7

Unauthorised purpose

Answer 7

If power is used in a way which is inconsistent with the purpose of the Act, it is an improper/unauthorised use of the Act

“Congreve”

Question 8

Dual purpose

Answer 8

Where decision is based on both proper and improper purpose, court should consider

1. Primary purpose “LNWR”
2. Did unauthorised purpose materially influence decision? “ILEA”

Question 9

Considerations

Answer 9

1. Taking irrelevant factor into account “Padfield”

2. Ignoring relevant factor “Roberts”

Question 10

Errors

Answer 10

1. In law “Anisminic”

2. Of fact “Khawaja”

Question 11

Irrationality

Answer 11

Must be so unreasonable that no reasonable authority could ever come to it
“Wednesbury”

So outrageous in its defiance and logic or accepted moral standards that no sensible person could have arrived at it
“CCSU”

Lack of reasons for a decision may point to irrationality

Question 12

Procedural impropriety

Answer 12

This means doing something improperly

1. Statutory procedures
2. Bias
3. Right to a fair hearing

Question 13

Statutory procedures

Answer 13

1. Courts will consider whether Parliament would have intended consequences of non-compliance
   “R v Soneji”

Consider whether

a) wording of statute suggests need for full compliance (shall)
b) there has been failure to substantially comply “Coney”
c) procedural safeguard is an important one
d) claimant has differed substantial prejudice

Question 14

Mandatory/directory requirements

Answer 14

1. If requirement is mandatory, decision will be quashed
   “Bradbury”
2. If requirement is directory, decision will not be quashed
   “Coney”

Question 15

Direct bias

Answer 15

Court will be obliged to quash and then reconsider decision

1. Financial/pecuniary gain
   “Dimes”
2. Decision-maker involves in same cause
   “Pinochet”

Question 16

Indirect bias

Answer 16

In order for the decision to be quashed, court must consider the “Porter v Magill” test

1. Would a fair-minded & impartial observer conclude that there has been a real possibility of bias
2. Whether the bias affected the decision or not is irrelevant, it’s about how decision would look to observer
   “Hook”

Question 17

Right to fair hearing

Answer 17

1. Duty on decision-makers to Act in good faith and listen to both sides
   “Rice”
2. Claimants should know case and have right to reply
   “Fairmount”
3. Claimants entitled to fair hearing which is fair and reasonable in all circumstances
   “Lloyd v McChahon”

Concept of fairness is flexible and variable according to category of case
“McInnes v Onslow-Fane”

Question 18

Forfeiture cases

Answer 18

Where claimant is deprived of something he previously enjoyed

Standard of fairness is high

“Ridge v Baldwin”

Question 19

Legitimate expectation cases

Answer 19

1. Procedural, meaning decision-maker has failed to follow normal procedure
   “Asif Khan”
2. Substantive, meaning decision-maker has led someone to believe they will receive a benefit
   “Coughlan”

Question 20

Application cases

Answer 20

Where claimant seeks for the first time, standard of fairness expected is much lower

Question 21

Limitations to the right to a fair hearing

Answer 21

1. No right to seek JR if a decision is preliminary and not final
   “Lewis v Heffer”
2. There is no legal duty for public bodies to give reasons for their decision
   “Hasan”