JR Academy - SESSION 1: INTRODUCTION TO JUDICIAL REVIEW

Question 1

Six classic JR /public law remedies

Answer 1

Prohibiting order (‘prohibition’)
Quashing order (‘certiorari’)
Mandatory order (‘mandamus’) - compels performance of a public duty
(first three are unique to public law)
Declaration - ruling on rights of parties, or state of the law
Injunction - compels performance (or non-performance) of a specified act
Damages

Question 2

CPR25

Answer 2

Interim remedies

Question 3

s.8(1) HRA 1998

Answer 3

Under the Human Rights Act of 1998, a court or tribunal may grant ‘such remedy or relief’ as it
considers just and appropriate for breaches of a person’s rights under the Act

Question 4

Exclusive cognisance

Answer 4

Exclusive cognisance is the right of each House of Parliament to regulate its own proceedings and internal affairs without interference from any outside body. This includes the conduct of its Members, and of other participants such as witnesses before select committees.

Question 5

Judicial comity

Answer 5

…

Question 6

The principle of comity between Parliament and the judiciary

Answer 6

This principle was articulated by Lord Simon of Glaisdale in 1974:

“It is well known that in the past there have been dangerous strains between the law courts and Parliament—dangerous because each institution has its own particular role to play in our constitution, and because collision between the two institutions is likely to impair their power to vouchsafe those constitutional rights for which citizens depend on them. So for many years Parliament and the courts have each been astute to respect the sphere of action and the privileges of the other”.[98]

Question 7

Comity

Answer 7

1. an association of nations for their mutual benefit.
2. courtesy and considerate behaviour towards others.
   “a show of public comity in the White House”

Question 8

comity of nations

Answer 8

the courtesy and friendship of nations marked especially by mutual recognition of executive, legislative, and judicial acts

Question 9

Section 31(3) of the Senior Courts Act 1981 provides that:

Answer 9

No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; and the court shall not grant leave to make such
an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

Question 10

“Victim” test

Answer 10

Where the case is based on the Human Rights Act 1998, a claimant must generally demonstrate that he or she is a direct or indirect ‘victim’ of the allegedly unlawful act, which is a much narrower
test.

Section 7 of the HRA provides:
a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act.

Question 11

Champerty

Answer 11

an illegal agreement in which a person with no previous interest in a lawsuit finances it with a view to sharing the disputed property if the suit succeeds.

Question 12

four main ways of seeking to enforce public law

Answer 12

Complaints procedure;
Ombudsmen schemes;
Appeal and review processes;
Judicial review.

Question 13

Complaints procedures

Answer 13

can provide a non-litigious, cheap and accessible
way of resolving disputes, particularly where the issue is historic and so there are no concerns
about timing or interim relief

Question 14

Ombudsmen schemes are designed to

Answer 14

provide redress for injustice that arises of maladministration.
This often overlaps with the kinds of public law wrongs that judicial review claims might be
challenging. For example, if a prisoner considers that he has been waiting for an unreasonably long
time to access a rehabilitation course, he could challenge the delay using judicial review on the
grounds that it was unfair or contrary to his human rights, and/or he could make representations to
the Prison and Probation Ombudsman so as to get them to investigate the delay, on the grounds
that the prison’s poor administration has caused him the injustice of not being able to get parole
because he has not completed a particular course.

Question 15

However, it must be remembered that the ombudsman is only able to investigate maladministration
that causes injustice. Maladministration includes:

Answer 15

bias; 
• neglect; 
• inattention; 
• delay; 
• incompetence; 
• ineptitude; 
• perversity; 
• turpitude; and
• arbitrariness.

Question 16

The following principles govern ombudsman schemes in general:

Answer 16

• The complaint must be about (a) administrative actions (or failures to act); (b) by a body over
which that particular ombudsman has jurisdiction; (c) which led to injustice; and (d) which
remains unremedied;
• Internal complaints procedures must be exhausted first, unless it is unreasonable to expect
this, and there must be no other available remedy (for example, an appeal to a tribunal or
court action), or if there is such a remedy it must be unreasonable to expect the individual to
use it.
• The claim must be brought within the time limit (usually 12 months) unless there is good
cause to extend time;
• The merits of discretionary decisions are not questionable, except where there is
maladministration;
• An investigation will not normally be carried out if it is not possible to identify a potential
appropriate remedy

Question 17

The following are some common advantages of ombudsmen schemes:

Answer 17

• The process is simple and cheap, with no potential exposure to costs liability;
• Ombudsmen’s reports may encourage better practice and can be useful political ammunition
for changing practice;
• Ombudsmen can recommend compensation which, although not legally enforceable, is
almost always paid.

Question 18

The following are some common disadvantages of using ombudsmen schemes:

Answer 18

• The process is sometimes slow and no interim remedies are available;
• There is no duty to investigate;
• Ombudsman reports are unlikely to be as effective in dealing with points of law, at least
where there is lack of clarity (for example, the Ombudsman had been questioning the power
of local authorities to charge for services provided under section 117 of the Mental Health
Act 1983 for some years, but local authority practice did not change until R v Richmond
Borough Council ex parte Watson and others [2002] UKHL 34, [2002] 3 WLR 584;
• The Ombudsman’s recommendations are not binding upon the public body concerned
(although recommendations are usually given effect).

Question 19

4 chambers of upper tribunal

Answer 19

the Administrative Appeals Chamber, the Tax and Chancery Chamber, the Immigration
and Asylum Chamber, and the Lands Chamber

Question 20

FTT General Regulatory Chamber includes “Immigration Services”

Answer 20

OISC registration. 28d time limit

Question 21

President of IAC (UT)

Answer 21

Mr Justice Lane`

Question 22

President of IAC (FTT)

Answer 22

Judge Michael Clements

Question 23

Senior President of UT and FTT

Answer 23

The Rt. Hon. Sir Keith Lindblom

Question 24

In general, the First-tier Tribunal provides for appeals on…

Answer 24

… law and fact with a right of appeal –
subject to a requirement to obtain permission – on a point of law to the Upper Tribunal, with an
onward right of appeal – subject to further requirement to obtain permission – on a point of law to
the Court of Appeal.

Question 25

Most JR cases are heard in…

Answer 25

Admin court.

TCEA 2007 provides for certain JR cases to be transferred for hearing by the UT

Question 26

3 definitions of JR

Answer 26

1) Judicial review is one (of several) means of enforcing public law
2) Judicial review is a procedure set out in Part 54 of the Civil Procedure Rules
3) Judicial Review is the name of a type of application referred to in section 31 of those Senior Courts Act 1981, and defined by reference to the remedies that the court can order

Question 27

CPR 54.1 definition of JR

Answer 27

A ‘claim for judicial review’ means a claim to review the lawfulness of –
(I.) an enactment; or
(II.)a decision, action or failure to act in relation to the exercise of a public function.

Question 28

s.31(1) definition of JR

Answer 28

An application to the High Court for one or more of the following forms of relief, namely—
(a) a mandatory, prohibiting or quashing order;
(b) a declaration or injunction under subsection (2); or
(c) an injunction under section 30 restraining a person not entitled to do so from acting in
an office to which that section applies, shall be made in accordance with rules of court
by a procedure to be known as an application for judicial review

Question 29

Law vs guidance

Answer 29

Law - dictates how we (inc public bodies) MUST act

Guidance - tells us how we should act, unless there are good reasons for not acting that way

Question 30

Tests for identifying whether a body can be challenged by way of JR

Answer 30

‘Source test’ and ‘function test’

The ‘source test’. If the source the power that a body has exercised is statutory or
prerogative then the body will generally be a public body, and its decisions will be made in
the exercise of a public function for the purposes of judicial review.

If not, the ‘function test’ will be applied. There is considerable uncertainty as to how this test
operates in practice. The courts have been unwilling to box themselves in with strict criteria. See Datafin

Question 31

Bodies which have been held to be susceptible to JR

Answer 31

Law Society, the General Medical Council, the
Advertising Standards Authority and the National Trust

BUT NOT The Football Association

Question 32

Human Rights Act 1998 (‘HRA’) provides a loose definition of a public authority in section 6.

Answer 32

It
states that a public authority (and therefore on that is bound by human rights law) is one “whose
functions are functions of a public nature”

Question 33

Damages in JR

Answer 33

The failure of a public authority to act in accordance with public law principles does not in itself give
rise to a right to damages. Traditionally, damages were rarely awarded in applications for judicial
review. They are not available to compensate people who merely have had unlawful decisions
made against them but are available if and only if there is a separate and recognised private law
claim for damages, for example, in negligence or breach of statutory duty, which is proven. For
example, a claim for damages can be made at the same time as a judicial review to challenge a
period of immigration detention at the hands of the state, on the basis that the damages for false
imprisonment is dependent on the public law claim that the detention was unlawful. An exception to
the general rule that a damages claim pleaded in a claim for judicial review must be parasitic on the
main public law claim arises out of the Human Rights Act 1998, which creates a freestanding
statutory tort

Question 34

s1 HRA 1998

Answer 34

1The Convention Rights.

(1) In this Act “the Convention rights” means the rights and fundamental freedoms set out in—
(a) Articles 2 to 12 and 14 of the Convention,
(b) Articles 1 to 3 of the First Protocol, and
(c) [F1Article 1 of the Thirteenth Protocol],as read with Articles 16 to 18 of the Convention.
(2) Those Articles are to have effect for the purposes of this Act subject to any designated derogation or reservation (as to which see sections 14 and 15).
(3) The Articles are set out in Schedule 1.
(4) The [F2Secretary of State] may by order make such amendments to this Act as he considers appropriate to reflect the effect, in relation to the United Kingdom, of a protocol.
(5) In subsection (4) “protocol” means a protocol to the Convention—
(a) which the United Kingdom has ratified; or
(b) which the United Kingdom has signed with a view to ratification.
(6) No amendment may be made by an order under subsection (4) so as to come into force before the protocol concerned is in force in relation to the United Kingdom.

Question 35

s2 HRA 1998

Answer 35

2Interpretation of Convention rights.

(1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—
(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights,
(b) opinion of the Commission given in a report adopted under Article 31 of the Convention,
(c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or
(d) decision of the Committee of Ministers taken under Article 46 of the Convention,whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
(2) Evidence of any judgment, decision, declaration or opinion of which account may have to be taken under this section is to be given in proceedings before any court or tribunal in such manner as may be provided by rules.
(3) In this section “rules” means rules of court or, in the case of proceedings before a tribunal, rules made for the purposes of this section—
(a) by F3. . . [F4the Lord Chancellor or] the Secretary of State, in relation to any proceedings outside Scotland;
(b) by the Secretary of State, in relation to proceedings in Scotland; or
(c) by a Northern Ireland department, in relation to proceedings before a tribunal in Northern Ireland—
(i) which deals with transferred matters; and
(ii) for which no rules made under paragraph (a) are in force.

Question 36

s.3 HRA 1998

Answer 36

3Interpretation of legislation.

(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2) This section—
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.

Question 37

s4 HRA 1998

Answer 37

4Declaration of incompatibility.
(1)Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2)If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
(3)Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right.
(4)If the court is satisfied—
(a)that the provision is incompatible with a Convention right, and
(b)that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility,it may make a declaration of that incompatibility.
(5)In this section “court” means—
[F5(a)the Supreme Court;]
(b)the Judicial Committee of the Privy Council;
(c)the [F6Court Martial Appeal Court] ;
(d)in Scotland, the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session;
(e)in England and Wales or Northern Ireland, the High Court or the Court of Appeal.
[F7(f)the Court of Protection, in any matter being dealt with by the President of the Family Division, the [F8Chancellor of the High Court] or a puisne judge of the High Court.]
(6)A declaration under this section (“a declaration of incompatibility”)—
(a)does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
(b)is not binding on the parties to the proceedings in which it is made.

Question 38

s.5 HRA 1998

Answer 38

5Right of Crown to intervene.
(1)Where a court is considering whether to make a declaration of incompatibility, the Crown is entitled to notice in accordance with rules of court.
(2)In any case to which subsection (1) applies—
(a)a Minister of the Crown (or a person nominated by him),
(b)a member of the Scottish Executive,
(c)a Northern Ireland Minister,
(d)a Northern Ireland department,is entitled, on giving notice in accordance with rules of court, to be joined as a party to the proceedings.
(3)Notice under subsection (2) may be given at any time during the proceedings.
(4)A person who has been made a party to criminal proceedings (other than in Scotland) as the result of a notice under subsection (2) may, with leave, appeal to the [F9Supreme Court] against any declaration of incompatibility made in the proceedings.
(5)In subsection (4)—
“criminal proceedings” includes all proceedings before the [F10Court Martial Appeal Court]; and
“leave” means leave granted by the court making the declaration of incompatibility or by the [F11Supreme Court]

Question 39

s6 HRA 1998

Answer 39

6Acts of public authorities.

(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section “public authority” includes—
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
(4) F12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.
(6) “An act” includes a failure to act but does not include a failure to—
(a) introduce in, or lay before, Parliament a proposal for legislation; or
(b) make any primary legislation or remedial order.

Question 40

s7 HRA 1998

Answer 40

7Proceedings.

(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,but only if he is (or would be) a victim of the unlawful act.
(2) In subsection (1)(a) “appropriate court or tribunal” means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding.
(3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act.
(4) If the proceedings are made by way of a petition for judicial review in Scotland, the applicant shall be taken to have title and interest to sue in relation to the unlawful act only if he is, or would be, a victim of that act.
(5) Proceedings under subsection (1)(a) must be brought before the end of—
(a) the period of one year beginning with the date on which the act complained of took place; or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.
(6) In subsection (1)(b) “legal proceedings” includes—
(a) proceedings brought by or at the instigation of a public authority; and
(b) an appeal against the decision of a court or tribunal.
(7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act.
(8) Nothing in this Act creates a criminal offence.
(9) In this section “rules” means—
(a) in relation to proceedings before a court or tribunal outside Scotland, rules made by F13. . . [F14the Lord Chancellor or] the Secretary of State for the purposes of this section or rules of court,
(b) in relation to proceedings before a court or tribunal in Scotland, rules made by the Secretary of State for those purposes,
(c) in relation to proceedings before a tribunal in Northern Ireland—
(i) which deals with transferred matters; and
(ii) for which no rules made under paragraph (a) are in force,rules made by a Northern Ireland department for those purposes,and includes provision made by order under section 1 of the M1Courts and Legal Services Act 1990.
(10) In making rules, regard must be had to section 9.
(11) The Minister who has power to make rules in relation to a particular tribunal may, to the extent he considers it necessary to ensure that the tribunal can provide an appropriate remedy in relation to an act (or proposed act) of a public authority which is (or would be) unlawful as a result of section 6(1), by order add to—
(a) the relief or remedies which the tribunal may grant; or
(b) the grounds on which it may grant any of them.
(12) An order made under subsection (11) may contain such incidental, supplemental, consequential or transitional provision as the Minister making it considers appropriate.
(13) “The Minister” includes the Northern Ireland department concerned.

Question 41

Art 1 of 13th Protocol to ECHR

Answer 41

Abolition of the death penalty.

The death penalty shall be abolished. No one shall be condemned to such penalty or executed.

Question 42

Arts 1 to 3 of 1st Protocol to ECHR

Answer 42

Art 1 - protection of property
Art 2 - right to education
Art 3 - right to free elections

Question 43

The “Convention rights” as defined in s.1(1) HRA 1998

Answer 43

Arts 2-12 and 14 of the Convention, Arts 1-3 of 1st protocol, and art 1 of 13th protocol

Question 44

s8 HRA 1998

Answer 44

8Judicial remedies.
(1)In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
(2)But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.
(3)No award of damages is to be made unless, taking account of all the circumstances of the case, including—
(a)any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
(b)the consequences of any decision (of that or any other court) in respect of that act,the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.
(4)In determining—
(a)whether to award damages, or
(b)the amount of an award,the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.
(5)A public authority against which damages are awarded is to be treated—
(a)in Scotland, for the purposes of section 3 of the M2Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 as if the award were made in an action of damages in which the authority has been found liable in respect of loss or damage to the person to whom the award is made;
(b)for the purposes of the M3Civil Liability (Contribution) Act 1978 as liable in respect of damage suffered by the person to whom the award is made.
(6)In this section—
“court” includes a tribunal;
“damages” means damages for an unlawful act of a public authority; and
“unlawful” means unlawful under section 6(1).

Question 45

Art 41 ECHR

Answer 45

ARTICLE 41
Just satisfaction
If the Court finds that there has been a violation of the Convention
or the Protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be
made, the Court shall, if necessary, afford just satisfaction to the
injured party.

Question 46

s9 HRA 1998

Answer 46

9Judicial acts.
(1)Proceedings under section 7(1)(a) in respect of a judicial act may be brought only—
(a)by exercising a right of appeal;
(b)on an application (in Scotland a petition) for judicial review; or
(c)in such other forum as may be prescribed by rules.
(2)That does not affect any rule of law which prevents a court from being the subject of judicial review.
[F15(3)In proceedings under this Act in respect of a judicial act done in good faith, damages may not be awarded otherwise than—
(a)to compensate a person to the extent required by Article 5(5) of the Convention, or
(b)to compensate a person for a judicial act that is incompatible with Article 6 of the Convention in circumstances where the person is detained and, but for the incompatibility, the person would not have been detained or would not have been detained for so long.]
(4)An award of damages permitted by subsection (3) is to be made against the Crown; but no award may be made unless the appropriate person, if not a party to the proceedings, is joined.
(5)In this section—
“appropriate person” means the Minister responsible for the court concerned, or a person or government department nominated by him;
“court” includes a tribunal;
“judge” includes a member of a tribunal, a justice of the peace [F16(or, in Northern Ireland, a lay magistrate)] and a clerk or other officer entitled to exercise the jurisdiction of a court;
“judicial act” means a judicial act of a court and includes an act done on the instructions, or on behalf, of a judge; and
“rules” has the same meaning as in section 7(9).

Question 47

For claims issued on or after 13 April 2015

Answer 47

section 84 of the Criminal Justice and Courts
Act 2015 amends section 31 of the Senior Courts Act 1981 to require the court if so requested by
the defendant (and to enable the court, even if not so requested), to consider how likely it is that the
outcome for the applicant would not have been substantially different if the conduct complained of
had not occurred. If the court considers it highly likely that the outcome would not have been
substantially different, it must refuse to grant relief, subject to a power for the court to disregard this
requirement if it is appropriate to do so for reasons of exceptional public interest.

Question 48

R on the application of Cowl v City of Plymouth [2001] EWCA Civ 1935, [2002] 1 WLR 803)

Answer 48

In R on the application of Cowl v City of Plymouth [2001] EWCA Civ 1935, [2002] 1 WLR 803), the
Court of Appeal sought to require parties to judicial review cases to give greater consideration to
attempting alternative dispute resolution. Whilst there is no evidence to suggest the uptake of ADR
has increased significantly since Cowl, the court’s aspirations in that case are reflected in recent
amendments to the Judicial Review Pre-Action Protocol (considered further in Session 3) which
makes it clear that the parties should consider ADR. If proceedings are issued, the parties may be
required by the court to provide evidence that ADR has been considered. A party’s silence in
response to an invitation to participate in ADR or refusal to participate in ADR might eb considered
unreasonable by the court and could lead to the court ordering that party to pay additional court
costs.

Question 49

Abdulaziz, Cabales & Balkandali v UK (1985) 7 EHRR 471

Answer 49

Flexibility of “victim” test - relatives of a person who was

refused a residence permit can pursue a case in their own right

Question 50

McCann, Farrel and Savage v UK (1996) 21 EHRR 97

Answer 50

Flexibility of “victim” test - families of deceased victims can
claim on their behalf as well as their own

Question 51

UKVI complaints process and deadline

Answer 51

Online complaints form, or by email to complaints@homeoffice.gov.uk

deadline 3 months after incident, unless exceptional circs

Timescales - We’ll investigate your complaint and reply to you within 20 working days. We will contact you if we need more time to investigate your complaint. If your complaint suggests serious professional misconduct we aim to respond within 12 weeks, following an impartial investigation.

Ex-gratia claims have separate timescales, for further information read the ex-gratia guidance.

Question 52

Parliamentary and Health Service Ombudsman timescale

Answer 52

Deadline - one year

Process -

1) Initial checks 5wd
2) Deciding whether to investigate - 20wd
3) Investigation - aim to complete most within 3 to 6m. Aim to complete 95% within a year