JR 1 - Nature and process

Question 1

What is judicial review?

Answer 1

The mechanism under which courts ensure that public bodies act within powers they have been granted and do not exceed/abuse those powers

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

If it did, it would contravene the doctrine of separation of powers by encroaching on legislative/executive roles!

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

Can claimants seek JR of decisions made by private bodies?

Answer 9

No – only public bodies

Question 10

So when will a body ultimately be amenable to JR?

Datafin test

Answer 10

1. Source of power test: If ** source of power is a statute, delegated legislation, or RP**; failing which, go on to consider:
2. Nature of power: If they exercise a public law function with public law consequences

Question 11

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

Answer 11

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

Question 12

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

Answer 12

Insofar that their functions have the necessary public character

Question 13

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

Answer 13

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

Question 14

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

Answer 14

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 15

What is the general procedural rule re procedural exclusivity?

Answer 15

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

O’Reilly v Mackman [1983]: 4 prisoners sought declaration that disciplinary actions affecting them were void and sought remission – but did so by means of a private, not public action. They had sufficient interests to challenge the decision but brought the wrong type of claim. HL held that it would be contrary to public policy to allow ordinary actions, instead of judicial review, be the method through which public law was challenged

Question 16

What are the exceptions to the procedural exclusivity rule?

Answer 16

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) – ie: case involves both private and public law

Question 17

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 v Kensington - 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 17

Where a claim is based on a mixture of private and public law rights, the public law element may be raised in private proceedings.

If not a mixture = stay in their respective tracks.

Question 18

Test ur understanding

What is an example of collateral challenge?

Answer 18

Wandsworth council v Winder: Council increased rents substantially and sued a tenant who refused to pay. D claimed rent increase was ultra vires. Example of a case where public law issue was arose ‘collaterally’

Question 19

Test ur understanding

Examples of common public law challenges

Answer 19

• Compulsory purchase order (CPO) over land
• Challenges to a grant/refusal or a licence
• Challenges to the refusal of discretionary financial grants

Question 20

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

Requirement of …

Answer 20

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

Must apply to court for permission first

Question 21

When will individuals or organisations clearly be given standing?

Answer 21

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 22

When is it harder to prove standing?

Answer 22

When the claimant has no personal interest in the matter

HOWEVER, issue of standing can evalute C’s standing wrt merits of case

R v Inland Revenue Commission –Workers avoided paying tax by using false names. IR granted them amnesty and agreed not to pursue workers for areers, provided they pay tax in future. National Federation for Self-Employed and Small Businesses applied for JR –held that they had no standing as they lacked sufficient interest.

Question 23

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

E.g. association of taxi drivers opposing new licenses

Answer 23

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 24

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

Answer 24

No - cannot engineer status by forcing multiple individuals into a group, unless each individual has a claim themselves

Eg: Local residents banding together to oppose building of a nuclear power station with each individual being personally affected by the decision.

Question 25

Will a pressure group be granted standing?

Answer 25

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 26

What 5 factors will contribute to the decision to grant standing to a pressure group?

As there is no ‘sufficient interest’ test –will turn to these factors

R v WDM – Foregitn Secretary granted aid to Malaysia to build a dam. WDM was a pressure group that argued that the Foreign Secretary knew the project was economically unsound and money was supply for arms to the UK. Court found 5 factors –

Answer 26

• Importance of upholding rule of law
• Likely absence of other responsible challenger
• Importance of the issue raised
• Nature of breach of duty (seriousness of matter)
• Role of the pressure group (expertise of challengers)

Question 27

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 27

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 28

What is the time limit for a judicial review application?

Answer 28

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 29

Can an applicant be refused if application is made within 3 months but is not prompt?

Answer 29

Yes. Finn-Kelcey – application was made within 3 months but was dismissed as C was aware of the local authority’s decision as soon as it had been made, and there was no need to wait 3 months.

Question 30

Can courts refuse claims if there has been undue delay

Answer 30

Yes!

Question 31

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

Answer 31

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

Question 32

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

Answer 32

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

Question 33

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

Answer 33

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

Eg: difficulty in obtaining legal aid, waiting for permission from copywright holders of drawing plans one wishes to use in application, waiting for matter to be called into consideration etc–R v Stratford-Upon-Avon DC ** MUST HAVE MULTIPLE FACTORS.**

Question 34

Can failure to obtain legal aid itself be a good reason for delay?

Answer 34

No. It can be one factor, but can’t be the only factor.

R (Kigen) v Sec of State [2015]

Question 35

Must the court automatically grant an extension in a delay if the matter concerns public safety issues?

Answer 35

No! Court has discretion even in these situations – must outweigh whether the undue delay with merits and significance of case

Question 36

If a claim proceeds to hearing despite a delay, must a remedy be granted?

Answer 36

No! Remedy can be refused if the claim isn’t made within 3 month reason, even if it had a good reason.

Question 37

What are ouster clauses?

Answer 37

Clauses instered into acts of Parliament which exclude any right of challenge once a decision has been made by a public body

Question 38

What is the difference between total and partial ouster clauses?

Answer 38

1. Total ouster clause: Does not allow any right of challenge at all, and excludes courts from playing any role in reviewing the decision
2. Partial ouster clauses: Provides some opportunity for decision to be challenged by way of JR

Rare!

Question 39

What was the decision in Anisminic v Foreign Compensation Commission?

Facts concerned the FCCC making an error of law in deciding that a purchaser of business property amounted to a successor in title. However, FCC statute contained a provision completely ousting JR.

Answer 39

If a public body steps outside its permitted area, its decisions are not covered by an ouster clause because invalid decisions are de facto nullities

Question 40

If a public body makes an incorrect decision as to law, but has an ouster clause, can it be challenged?

Answer 40

Yes. See Anisminic.

Rationale: Any such decision made by a public body on a misunderstanding of statute is considered ultra vires and Parliament cannot have intended that legally incorrect decisions are immune from challenges.

Question 41

Can ouster clauses protect invalid decisions (ie: decisions made on a misunderstanding of statute / error in application of law)?

Answer 41

Nope

Question 42

Can legislation contain full ouster clauses?

Never happened before!

Answer 42

Yes, as long as ‘clear and explicit’ words are used

Question 43

Can partial ouster clauses lawfully reduce the time limit for bringing a claim for JR ?

Answer 43

Yes. R v Sec of State – SoS reduced time to 6 weeks instead of 3 months. This was a partial ouster clause and courts upheld it.

Question 44

Do courts have jurisdiction to entertain applications made outside a partial ouster clauses with shorter time limits?

Answer 44

No. Courts have:

1. No jurisdiction, no matter the claimants grounds, and;
2. No discretion to grant an extention, even if there are good reasons for delay

Quite harsh! No direct authority on whether a courts would uphold an unreasonably short time limit

Question 45

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

Answer 45

PARL does not intend to exclude JR

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

Question 46

When is it appropriate for an applicant to use JR?

Answer 46

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 47

Before starting proceedings, what Protocol must claimants follow?

Answer 47

Pre-Action Protocol for Judicial Review

Question 48

What must C do, under PAPJR?

Answer 48

1. Send a letter to decision maker to give them 14 days to reconsider their decision
2. If no satisfactory reply is received, C should start formal proceedings

Question 49

What if C does not follow PAPJR? Will the claim be struck out?

Answer 49

No, but courts will consider failure to comply when awarding costs

Similar to dispute resolution!

Question 50

Does C need to follow PAPJR in all circumstances?

Answer 50

No, not if the matter is:
1. Urgent, or
2. Time limit is less than 3 months.

So does not apply public procurement and planning act challenges

Question 51

What are the 2 stages of JR?

Answer 51

1. Permission stage
2. Substantive hearing

Question 52

Describe the 2 stages in slightly more detail

Answer 52

1. Permission Stage: 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. Substantive hearing: Full inter partes hearing where applicants present grounds to challenge decision

Question 53

Outline of procedure

Answer 53

Question 54

What must the claim form include?

Answer 54

1. State that C is requesting permission to proceed with JR and remedies sought
2. State C’s grounds for claim, facts relied on, and supporting evidence

Question 55

Where must claim form be issued?

Answer 55

Administrative Court

Question 56

In what circumstances can permission be refused after CF is submitted?

Think about what you already know!

Answer 56

1. C cannot demonstrate sufficient interest
2. C is guilty of an unjustified Delay
3. If outcome is highly likely to remain unchanged

Question 57

What are the two different types of remedy?

Answer 57

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

Question 58

When MUST courts refuse a remedy (and what is the exception)

Question 59

What are the 3 prerogative orders?

Answer 59

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 60

What is (the effect of) a Quashing Order?

Answer 60

Quashes a decision the court has found unlawful –> original decision is nullified and original decision maker must reconsider in light of court’s judgement

Question 61

Can courts suspect a quashing order, and what is its effect?

Answer 61

Yes until a specified date.

Gives original decision maker time to make amendments, and if it fails to do so by the deadline, the quashing order will become effective

Question 62

Can a quashing order have prospective effect?

Answer 62

Yes. Quashing order will only render the decision void from the time of the judgement onwards –> will not invalidate any past decisions

Why? Helpful if, for example, a public body has made 1000s of small payments. Would be a huge administrative hassle for quashing order to work retrospectively.

Question 63

What must courts take into consideration for a quashing order?

Answer 63

1. Nature and circumstances of the relevant defect;
2. Interests or expectations of people who would benefit from the quashing decision
3. Interests/expectations of people who relied on it

Question 64

What is a prohibiting order?

Answer 64

Court orders public body to refrain from acting beyond its powers

Eg: R v Liverpool Corporation – LC granted new taxi licenses breaching its assurance that it would check with existing license holders first. Prohibiting order prevented council from implementing decision without consultation.

Question 65

What is a mandatory order?

Answer 65

Designed to enforce performance by public bodies of duties they are legally required to carry out

Eg: when a public body refuses to consider an application, as is its duty

Question 66

What are the other 3 remedies available?

Not exclusive to JR

Answer 66

1. Declaration - Order confirming, not changing, the legal position/rights of parties.

Non-coercive remedy so can be ignored without legal sanction but helpful to clarify law.

2. Injunction - orders party to perform, or refrain from performing a specifc act (can be a form of interim relief)
3. Damages - where C is seeking another relief (eg: quashing order) and damages would’ve been awarded in a civil claim

C must have a private cause of action/breach of a Convention right. Damages cannot simply be awarded becase C has grounds for JR

Can be granted on interim or final basis

Question 67

When would damages be awarded in a case of JR?

Answer 67

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

Question 68

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

Answer 68

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

Question 69

SUMMARY

Can C make a claim for JR?

Answer 69

Question 70

SUMMARY

What are C’s grounds for JR?

Answer 70

Question 71

SUMMARY

Procedure & Remedies

Answer 71