JR 1 - Nature and process Flashcards
What is judicial review concerned with?
Checking the exercise of public power
Should courts be concerned with the merits of a decision?
No - should be concerned with whether such a decision has been correctly made and implemented according to law
Will judicial review effectively work like an appeal?
I.e. can courts substitute their decision for that of the decision maker
No - but can direct that decision be made again in the correct manner
What are the 5 main preliminary issues that must be considered befoe a judicial review claim can be pursued?
- Amenability
- Procedural exclusivity
- Standing
- Time limits
- Ouster clauses (where relevant)
What decisions are amenable to judicial review?
Generally - only public law decisions
What is a public law decision?
I.e. a decision amenable to judicial review
A decision, action or failure to act in relation to the exercise of a public function (usually through exercise of some form of statutory power)
Can public law decisions include prerogative powers?
Yes
Can associations with no direct statutory powers be subject to judicial review?
E.g. Panel of Takeovers and Mergers
If they exercise a governmental-type function
E.g. Panel regulates important aspect of national economic life
So when will a body ultimately be amenable to JR?
- If source of power is a statute
- If they exercise a public law function with public law consequences
What is the ‘but for’ test in deciding if a body’s decisions are subject to JR?
If an authority had not already been in existence, PARL would have to regulate activity in question = decisions subject to JR
Will self-regulatory authorities - e.g. ASA or Bar Council - be subject to JR?
Insofar that their functions have the necessary public character
When would self-regulatory authority decisions not be amenable to JR?
Where they give rise to private rights/nature e.g. Jockey Club, religious matters
Will a private company - who GOV has ‘contracted out’ to for services - be amenable to JR?
If its services are subject to specific statutory underpinning (e.g. a direct on-going statutory duty under the Mental Health Act to provide treatment facilities) but not if the power is purely contractual (provision of housing accomodation)
What is the general procedural rule re procedural exclusivity?
JR is exclusive procedure for challenging public law decisions whereas private law matters to be dealt with by ordinary action
* To bring public law challenge in any other way than by JR = abuse of process by court
Subject to exceptions
What are the exceptions to the procedural exclusivity rule?
- When neither party objected to use of private law procedure
- When contested decision was collateral (it arose out of or incidentally to some other legal claim)
What happens where a litigant asserts a private law right which incidentally involved the examination of a public law issue?
I.e. the two mix
E.g. Roy - doctor’s pay (provided for under NHS statutory regulations) was reduced as he was not devoting sufficient time to NHS work - brought a private action claiming breach of contract, which FPC sought to strike out as abuse of process as judicial review was the correct procedure
Will not be an abuse of the process of the court where claimant has private law rights e.g. right to be paid for work done
What does it mean that an applicant for JR needs to have standing?
The applicant must have sufficient interest in the matter to which the application relates
Must apply to court for permission first
When will individuals or organisations clearly be given standing?
Where they are directly affected by a public law decision
Otherwise is a mixed question of law and fact and connection between applicant’s degree of interest and matter in contention
Can an association of individuals, rather than one individual alone, have standing?
E.g. association of taxi drivers opposing new licenses
Yes - if a logical connection between association and decision under challenge because members affected
Logical to have a joint case rather than several individual ones
If individuals without standing band together to form a larger group, will this change their status?
No - cannot engineer status by forcing multiple individuals into a group
Will a pressure group be granted standing?
More likely if it is the case that without the group, the people it represented may not have effective way to bring issues/the expertise to make a claim - resulting in a less well-informed challenge
E.g. Greenpeace - had genuine concern for env and 2,500 supporters in CUmbria - matter would otherwise had to have been brought by individual living close to area with far less expertise than the group
What factors will contribute to the decision to grant standing to a pressure group?
- Importance of vindicating rule of law
- Likely absence of other responsible challenger
- Nature of breach of duty (seriousness of matter)
- Prominent role of applicants in giving advice and assistance (expertise of challengers)
Can an individual have standing if the connection between them and the issue is not a personal/immediate one?
A ‘concerned citizen’ whose interests are not directly impacted
E.g. ex parte Rees-Mogg - editor of the Times who had frequently written about EU membership had sincere concern over the signing of the Treaty of the European Union
Yes - out of sincere concern (important to rule of law)
Will turn on facts of the case and if there are any more directly interested challengers
What is the time limit for a judicial review application?
- Promptly; and
- In any event no later than 3 months after the grouns to make the claim first arose
I.e. can be refused even under 3 months if not filed promptly
Can time limit for a JR application be extended by both parties and the court?
No - only the court (provided C can show good reason)
On what grounds can the court refuse JR if there has been undue delay?
If granting relief sought would cause substantial hardship to any person or detrimental to good administration
What are the abridged time limits for planning decisions and public procurement?
- Planning decisions = 6 weeks
- Public procurement = 30 days
What are total ouster clauses in context of JR?
A clause that appears to completely exclude JR
Rare!
What extremely strong presumption has been developed by the courts to excluding JR?
PARL does not intend to exclude JR
Seen as a challenge to the rule of law; JR is basic right to all citizen
What is required to exclude the court’s jurisdiction?
Very explicit wording
Courts are unlikely to uphold a total ouster clause
What is the position on partial ousters that seeks to exclude the jurisdiction of the court once a certain time limit has expired?
I.e. restricts Cs but does not remove access to JR entirely
Taken at face value: likely to strike out any action brought after time limit has expired
When is it appropriate for an applicant to use JR?
- When no suitable alternative remedy
- Alternative remedies have been exhausted
I.e. litigation should be avoided wherever possible
Courts can refuse permission if above not exhausted
Alt remedies e.g. statutory right of appeal, internal complaints and appeal procedures, complaint to ombudsman
What are the 2 stages of a JR claim?
- An ex parte application for permission made to Administrative Court/relevant tribunal where applicant will be granted standing if made within time limit and there is an arguable case
- Full inter partes hearing where applicants present grounds to challenge decision
What are the two different types of remedy?
- Prerogative orders - specific to JR
- Others - can be granted in private law too
What are the 3 prerogative orders?
- Quashing order - overturns impugned decision and public body must take decision again
- Prohibitory order - prevents public body from acting/continuing to act unlawfully
- Mandatory order - compels public body to perform public duty imposed by law
Quashing order most common
What are the other 3 remedies available?
Not exclusive to JR
- Declaration - court declares what legal position is/rights of parties are (can be made alongside other orders)
- Injunction - orders party to perform, or refrain from performing a specifc act (can be a form of interim relief)
- Damages
Can be granted on interim or final basis
When would damages be awarded in a case of JR?
- Where damages could have been awarded in a private law action; or
- Public body has breached its duties under the HRA
What in nature are the remedies and what does this mean?
Discretionary - means that they should act to balance the degree of individual interest against wider public interest
