JR 1 - Nature and Process

Question 1

what is judicial review?

Answer 1

making sure a decision has been correctly made and implemented according to law.
can order a decision be made again in the correct manner but CANNOT substitute their decision for that of the original decision maker.

Question 2

what are the 5 limitations on the availability of judicial review?

Answer 2

1. amenability- must be a public law decision (in relation to the exercise of a public function).
2. procedural exclusivity- exclusive to public law and not private. public law issues must be solved by JR. CRITICISED.
3. standing- applicant have sufficient interest in the matter to which the application relates.
4. time limits- claim must be filed promptly and in any event no later than 3 months after the grounds to make the claim first arose.
5. ouster clauses (where relevant)- courts are generally hostile to ouster clauses.
   - if a partial outsters that seeks to exclude the jurisdiction once a time limit has expired, the courts are more responsive to this.

Question 3

how to tell if the decision is a pub law one?

Answer 3

satisfied if a classic public body is exercising powers whose source is statute or secondary legislation or the royal prerogative. if not, it is a matter of examining the nature of the power and whether private companies have had services contracted out to them by public bodies.

Question 4

who can have a sufficient interest in judicial review?

Answer 4

mixed of law and fact.
Associated and representative groups- allowed.
Pressure and interest groups- look at the likely absence of any responsible challenger, nature of the breach of duty, prominent role of the applicants in giving advice, and importance in vindicating the rule of law.
Concerned citizens- depends on facts.

Question 5

is judicial review an absolute right?

Answer 5

no, must apply for permission and only is appropriate if there is no suitable alternative remedy.

Question 6

what is the procedure for bringing a JR claim?

Answer 6

1. ex parte application for permission.
2. full inter partes hearing.

Question 7

what are the remedies for JR?

Answer 7

1. Quashing order= overturns the impugned decision and public body must then take the decision again, applying the correct law or following a fair procedure.
2. prohibitory order.
3. mandatory order.
4. declaration- court may declare what the legal position is or what the rights of the parties are.
5. injuction- orders a party to perform, or refrain from performing, a specific act.

6- damages.

DISCRETIONARY IN NATURE.

Question 8

what was the outcome in the Datafin case?

Answer 8

amenable to judicial review because the body performs functions with a sufficiently public and governmental character.

Question 9

effect of outster clauses on judicial review?

Answer 9

ouster clause does not prevent judicial review if the decision in question is illegal or made outside the jurisdiction conferred by statute.

Question 10

effect of time limitation caluses?

Answer 10

courts tend to enforce such clauses as they restrict the time within which judicial review claims must be brought…. thereby promoting legal certainty and efficiency.