JR 1 - Nature and process

Question 1

What is judicial review concerned with?

Answer 1

Checking the exercise of public power

Question 2

Should courts be concerned with the merits of a decision?

Answer 2

No - should be concerned with whether such a decision has been correctly made and implemented according to law

Question 3

Will judicial review effectively work like an appeal?

I.e. can courts substitute their decision for that of the decision maker

Answer 3

No - but can direct that decision be made again in the correct manner

Question 4

What are the 5 main preliminary issues that must be considered befoe a judicial review claim can be pursued?

Answer 4

1. Amenability
2. Procedural exclusivity
3. Standing
4. Time limits
5. Ouster clauses (where relevant)

Question 5

What decisions are amenable to judicial review?

Answer 5

Generally - only public law decisions

Question 6

What is a public law decision?

I.e. a decision amenable to judicial review

Answer 6

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)

Question 7

Can public law decisions include prerogative powers?

Answer 7

Yes

Question 8

Can associations with no direct statutory powers be subject to judicial review?

E.g. Panel of Takeovers and Mergers

Answer 8

If they exercise a governmental-type function

E.g. Panel regulates important aspect of national economic life

Question 9

So when will a body ultimately be amenable to JR?

Answer 9

1. If source of power is a statute
2. If they exercise a public law function with public law consequences

Question 10

What is the ‘but for’ test in deciding if a body’s decisions are subject to JR?

Answer 10

If an authority had not already been in existence, PARL would have to regulate activity in question = decisions subject to JR

Question 11

Will self-regulatory authorities - e.g. ASA or Bar Council - be subject to JR?

Answer 11

Insofar that their functions have the necessary public character

Question 12

When would self-regulatory authority decisions not be amenable to JR?

Answer 12

Where they give rise to private rights/nature e.g. Jockey Club, religious matters

Question 13

Will a private company - who GOV has ‘contracted out’ to for services - be amenable to JR?

Answer 13

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)

Question 14

What is the general procedural rule re procedural exclusivity?

Answer 14

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

Question 15

What are the exceptions to the procedural exclusivity rule?

Answer 15

1. When neither party objected to use of private law procedure
2. When contested decision was collateral (it arose out of or incidentally to some other legal claim)

Question 16

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

Answer 16

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

Question 17

What does it mean that an applicant for JR needs to have standing?

Answer 17

The applicant must have sufficient interest in the matter to which the application relates

Must apply to court for permission first

Question 18

When will individuals or organisations clearly be given standing?

Answer 18

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

Question 19

Can an association of individuals, rather than one individual alone, have standing?

E.g. association of taxi drivers opposing new licenses

Answer 19

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

Question 20

If individuals without standing band together to form a larger group, will this change their status?

Answer 20

No - cannot engineer status by forcing multiple individuals into a group

Question 21

Will a pressure group be granted standing?

Answer 21

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

Question 22

What factors will contribute to the decision to grant standing to a pressure group?

Answer 22

• 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)

Question 23

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

Answer 23

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

Question 24

What is the time limit for a judicial review application?

Answer 24

1. Promptly; and
2. 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

Question 25

Can time limit for a JR application be extended by both parties and the court?

Answer 25

No - only the court (provided C can show good reason)

Question 26

On what grounds can the court refuse JR if there has been undue delay?

Answer 26

If granting relief sought would cause substantial hardship to any person or detrimental to good administration

Question 27

What are the abridged time limits for planning decisions and public procurement?

Answer 27

• Planning decisions = 6 weeks
• Public procurement = 30 days

Question 28

What are total ouster clauses in context of JR?

Answer 28

A clause that appears to completely exclude JR

Rare!

Question 29

What extremely strong presumption has been developed by the courts to excluding JR?

Answer 29

PARL does not intend to exclude JR

Seen as a challenge to the rule of law; JR is basic right to all citizen

Question 30

What is required to exclude the court’s jurisdiction?

Answer 30

Very explicit wording

Courts are unlikely to uphold a total ouster clause

Question 31

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

Answer 31

Taken at face value: likely to strike out any action brought after time limit has expired

Question 32

When is it appropriate for an applicant to use JR?

Answer 32

1. When no suitable alternative remedy
2. 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

Question 33

What are the 2 stages of a JR claim?

Answer 33

1. 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
2. Full inter partes hearing where applicants present grounds to challenge decision

Question 34

What are the two different types of remedy?

Answer 34

1. Prerogative orders - specific to JR
2. Others - can be granted in private law too

Question 35

What are the 3 prerogative orders?

Answer 35

1. Quashing order - overturns impugned decision and public body must take decision again
2. Prohibitory order - prevents public body from acting/continuing to act unlawfully
3. Mandatory order - compels public body to perform public duty imposed by law

Quashing order most common

Question 36

What are the other 3 remedies available?

Not exclusive to JR

Answer 36

1. Declaration - court declares what legal position is/rights of parties are (can be made alongside other orders)
2. Injunction - orders party to perform, or refrain from performing a specifc act (can be a form of interim relief)
3. Damages

Can be granted on interim or final basis

Question 37

When would damages be awarded in a case of JR?

Answer 37

1. Where damages could have been awarded in a private law action; or
2. Public body has breached its duties under the HRA

Question 38

What in nature are the remedies and what does this mean?

Answer 38

Discretionary - means that they should act to balance the degree of individual interest against wider public interest