JR final Flashcards
Statutory powers -
Reviewable to the extent that they raise justiciable issues.
Anisminic Ltd v Foreign Compensation Act 1969
Ouster clause inserted into the Foreign Compensation Act.
The House of Lords had to decided whether or not they could judicially review -had to juggle the sovereign will of parliament with the rule that requires that peoples should be able to have legal disputes decided by indpendent courts.
-it was held by their lordships that Parliament did not mean what it apparently meant.
Ouster clause did not preclude judicial scrutiny, therefore deprived of any effect.
Wade & Forsyth- the court adopted a policy of total disobedience to Parliament - gave more importance to the rule of law by preserving the availability of review rather than importance of parliament.
Prerogative powers
Challenge to prerogative powers was once seen as constitutionally improper, however that was before gchq (exercise of a power conferred upon a Minister under the prerogative)
lord Scarman said that he could see no reason why simply because a decision making power derived from a common law and not a statutory source- it should be immune from judicial review.
R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs-
Exercises of the prerogative itself, not only powers conferred under it are also in principle judicially reviewable.
De facto powers -decisions taken by government bodies and others not under statutory or prerogative powers open to judicial review?
R v Panel on Takeovers and Mergers, ex p Datafin plc 1987.
Claimant was attempting to take over company X, they complained to the panel on takeovers and mergers about inpropriteries in the takeover process.
-the panel dismissed the complaint against company Y and the claimant sought judicial review of that decision- arguing that court was not enforcing code correctly.
Court of Appeal ruled that the panel has not acted unlawfully.
However the real important part of Datafin was that court would even subject the panels decision to review as the panel was not exercising any legal powers.
Datafin-
Datafin was allowed to go before judicial review because of the governmental reliance on the panel to regulate takeovers and mergers.
Sir John Donaldson MR- failure to hold its decisions reviewable would fail to recognise the realities of executive power.
A decision made under de facto powers by a body formally part of the government is easily judicially reviewable.
R v Disciplinary Committee of the Jockey Club, ex p Aga Khan
-acid test for whether decisions taken under de facto powers can be reviewed is therefore whether the relevant decision maker is performing a public function that is governmental in nature.
The decision to disqualify the claimants horse after it failed a drugs test could not be reviewed as Hoffman LJ said there is nothing to suggest that, if the jockey club had not voluntarily assumed the regulation of racing the government would feel obliged or inclined to set up a statutory body for that purpose.
R v Chief Rabbi of the United Hebrew congregations of Great Britain and the commonwealth ex P Wachmann
It was held there could be no judicial review of the chief rabbis decision that the claimant whiff had been accused of adultery with members of his congregation was no longer religiously and morally fit to occupy his position as rabbi.
Contract between the claimant and the defendant
Aga Khan/
R v Criminal Injuries Compensatuon Board, ex p Lapin -
Lapin- there should be no judicial review of decisions taken under contract.
-contractual relationships are a private matter - they are to be dealt with by private law between the parties.
Contract between a government body and a service provider
R v Servite a Houses ex p Goldsmith
Goldsmith- local authority engaged D to provide accommodation that it was legally obliged to arrange be for certain categories of person.
The court held that JR could not occur in such circumstances.
Decision heavily criticises as it seemingly performed a Government role (Datafin) so should be amenable to JR.
Courts present approach enables the gov to place matters beyond the reach of JR by contracting them out to private sector bodies in which only private sector remedies apply - contracting out the new ouster clause?
Procedure for JR
Order 53 and s31 Supreme Courts Act 1981
Bringing JR
Litigants must secure the permission of the court to launch a a judicial review challenge.
Claimants are generally required to take various steps before seeking judicial review- such as alternative methods of dispute resolution.
Anyone wishing to bring a judicial review claim must act promptly within the 3 month period.
Procedural exclusivity
There are ordinary procedures for when judicial review proceedings aren’t particularly attractive to prospective claimants.
O’Reilly - established the principle of procedural exclusivity in that the only way in which claimants could raise public law issues in court was through JR.
O’Reilly v Mackman
Claimant prisoners sued the prison authorities alleging that certain disciplinary decisions had been taken in a procedurally unfair way and were therefore unlawful.
House of Lords ruled that by using ordinary procedure rather than judicial review proceedings- the claimants had committed an abuse of process and therefore struck out their claims.
Lord Diplock and O’Reilly
General principle that a person seeking to establish that a decision of a
Public authority infringed rights to which he was entitled to protection under public law should not proceed by way of ordinary proceedings.
Roy v Kensington and Chelsea and Westminster Family Practitioner committee
Where a case raises a mixture of public and private law points they can all be dealt with in ordinary proceedings.
Jr and ordinary proceedings
If the court concluded that JR proceedings should have been but were not used it no longer follows that there has been an abuse of process.
-but the court asks itself whether if JR were to have been used would permission have been granted?
If answered yes then the claim will be allowed to continue as no advantage has been gained by the claimant.
Standing -locus standi
Who may issue a claim for JR
Standing rules are set out in a Senior Courts Act 1981 and provides that a court may not grant permission for JR unless it considers that the claimant has sufficient interest in the matter to which the application Relates
R v Somerset County Council ex p Dixon
When a claimant seeks JR they are not seeking to vindicate rights that have allegedly been infringed but rather they are seeking to enforce the duties under which public law places government bodies.
Fleet Street casuals - standing is quite liberal.
Print workers on Fleet Street avoided paying income tax by falsifying information provided to tax authorities.
In an attempt to regularise the sitatuation a deal was offered:
If the workers would register for tax purposes and pay tax in future then no retrospective investigations would be undertaken.
the claimant was a body that represented tac payers sought to challenge the authorities arguing this was unfair to tax paying citizens.
House of Lords held that on the facts of the case that claims th did not have standing to pursue its claims
Fleet Street casuals
Irony of the case is that although it did not grant JR it laid down the fundamental test:
WHETHER A CLAIMANT HAS STANDING IS TO BE JUDGED WITHIN THE LEGAL AND FACTUAL CONTEXT OF THE CASE.
Lord Diplock took a particularly liberal stance.
Cane suggests that this case marked the end of standing as an independent requirement - now bound up with the merits of the claim itself.
Association standing - R v HM Inspectorte of Pollution ex p Greenpeace No 2.
Court allows the environmental pressure Group to seek JR on behalf of local residents among its membership of a decision to allow a nuclear plant to open.
Court was influenced by Greenpeace.
Public interest standing
R v Secretary of State for Foreign and Commonwealth affairs ex p World Development Movement Ltd Pergau dam
The c persuaded the court that the foreign secretary had acted UN
Awfully by funding a development project in Malaysia despite concerns that it was economically suspect.
