JR I - nature and process MCQs Flashcards
The issue of standing to bring a judicial review claim has been the subject of developments in case law and legislation. Which of the following statements best summarises the approach of the modern judiciary to this issue?
The liberalising trend of the courts has progressed to such a degree that anyone who is found not to be a ‘busybody, crank or mischief-maker’ will be given standing to challenge public law decisions.
The courts have adopted a restrictive approach to standing so that only those who are directly affected by the decision will be able to bring a challenge.
Whilst in certain circumstances the courts have adopted a broad interpretation of the ‘sufficient interest’ test, case law demonstrates on the whole that there are hard limits and standing will not be granted to those who have not in some way been personally affected by a decision.
Whilst the courts have adopted a liberal approach to standing for associations and pressure groups, they have developed a far more restrictive approach to standing for individuals.
The courts have adopted an increasingly liberal approach to individuals and groups who wish to challenge administrative decisions in relation to matters in which their own interests may not necessarily be directly impacted but in which they nonetheless have a genuine concern about a public issue, which it is important to challenge in order to vindicate the rule of law.
The courts have adopted an increasingly liberal approach to individuals and groups who wish to challenge administrative decisions in relation to matters in which their own interests may not necessarily be directly impacted but in which they nonetheless have a genuine concern about a public issue, which it is important to challenge in order to vindicate the rule of law.
Correct. This statement reflects the approach of the courts in cases such as Rees-Mogg, Walton, World Development Movement and Corner House Research.
You see a new client who is an educational psychologist. She is employed by the local authority and works in schools. She is paid a salary under a statutory scheme and receives a bonus in accordance with terms in her contract with the local authority. The client tells you that, on review, her salary has been reduced by 10% and the bonus scheme has been suspended for twelve months. On the basis of the information given to you by the client, which is not elaborated here, you consider that there are good grounds to challenge the local authority for the way in which these decisions were made.
The client is seeking advice on the proper mechanism through which to challenge the local authority. She wants to know if she can bring a judicial review claim. Which of the following statements provides the best advice to your client on this question?
The client should challenge the salary decision by judicial review and the bonus decision by ordinary action.
The client can challenge the salary and bonus scheme decisions by judicial review. The procedural exclusivity rule, which was established in O’Reilly v Mackman no longer applies, and the courts’ position is that claimants can decide what sort of proceedings to instigate in accordance with their personal preferences.
The client can challenge the salary and bonus scheme decisions by judicial review. Whilst her claim involves issues of public and private law the courts no longer rigidly apply the procedural exclusivity rule. The facts do not suggest that the client’s chosen proceedings would flout the general principles contained in Part 1 of the Civil Procedure Rules.
The client must bring the claim by ordinary action rather than judicial review as it contains a private law element.
In accordance with the overriding objective in Part 1 of the Civil Procedure Rules the client has no choice but to proceed by judicial review.
The client can challenge the salary and bonus scheme decisions by judicial review. Whilst her claim involves issues of public and private law the courts no longer rigidly apply the procedural exclusivity rule. The facts do not suggest that the client’s chosen proceedings would flout the general principles contained in Part 1 of the Civil Procedure Rules.
Correct. This position reflects the modern courts’ approach to mixed public and private law claims in cases such as Clark.
Your client wants to challenge a decision of the (fictitious) English Bowling Assembly (“the Assembly”) to ban him from playing bowls for six months due to unacceptable behaviour. The Assembly was set up by a group of bowling clubs around fifty years ago in order to regulate bowling. The Assembly governs the rules of the game; the codes of conduct under which your client received a sanction; and the relationships between clubs, the Assembly, and other bodies including public bodies. All club members agree to be subject to the rules of the Assembly. It is the sole regulator of bowling in the UK.
Which of the following summarises the most accurate advice to your client on whether the Assembly’s decision is amenable to judicial review?
The decision is not amenable to judicial review because the Assembly’s functions have not been contracted to it by a public body.
It is unlikely that the Assembly’s decision is amenable to judicial review. On the facts, the rules affecting the client come from an agreement between clubs and their members and the Assembly, giving rise to private rights and remedies.
The Assembly’s decision is not amenable to judicial review simply because the Assembly is a private body.
It is likely that the Assembly’s decision will be amenable to judicial review because its powers associated with the regulation of a sporting activity are governmental in nature.
The Assembly’s decision is amenable to judicial review because its functions and powers are public in nature and, if the Assembly did not exist, the government would need to step in to regulate bowling.
It is unlikely that the Assembly’s decision is amenable to judicial review. On the facts, the rules affecting the client come from an agreement between clubs and their members and the Assembly, giving rise to private rights and remedies.
Correct. This represents the most likely conclusion and the reason for it. This scenario is broadly analogous to cases such as ex parte Aga Khan involving the Jockey Club.
In the case of Privacy International the court revisited ‘total ouster’ clauses. Which of the following statements best represents the key principles from the decision?
Access to the courts and the interests of the rule of law takes pre-eminence in all situations over the stated intention of Parliament.
The court held that it was appropriate to depart from the strong presumption of statutory interpretation that Parliament does not intend to exclude judicial review.
It is for the court, not the legislature, to determine the level of scrutiny required by the rule of law. The courts strike an appropriate balance between the inferred intention of Parliament and the rule of law.
As the guardians of the rule of law, the courts will never regard it to be constitutionally appropriate to uphold a total ouster clause.
It is for the legislature to set down the parameters of the relationship between itself and the rule of law, including legislation concerning access to the courts.
It is for the court, not the legislature, to determine the level of scrutiny required by the rule of law. The courts strike an appropriate balance between the inferred intention of Parliament and the rule of law.
Correct. This reflects the judgment of Lord Carnwath in Privacy International.
Your client, a well-known London football club, has been refused a license to sell alcoholic beverages in its stadium after football games have finished. Subsequently, it has been in protracted correspondence with the local authority which made the decision. The last letter from the local authority, which confirmed that it would not alter its decision, was received by the club ten weeks ago. You discover that the Chairman of the club has meanwhile been away for an eight-week holiday during this period, having told his legal team not to do anything until he got back. The club has not accepted the local authority’s offer to put the matter before the (fictitious) Independent Licencing Ombudsman.
Which of the following statements provides the best advice to your client on the likely difficulties associated with challenging the local authority’s decision?
These are serious procedural issues and so it is highly likely that the court will refuse to grant the club permission to bring a judicial review claim.
There are procedural issues which could affect whether the club is granted permission to bring a claim or whether it ultimately receives a remedy for any errors in the decision-making process. Even if a claim is filed straight away, the court could find ‘undue delay’ and could also object to the club’s failure to engage with the Ombudsman scheme. The degree to which these issues will have an impact is a matter for the court’s discretion.
It is unlikely that any procedural issues will stop the club obtaining permission to bring a judicial review claim. The club can explain that they were unable to seek legal advice sooner because the Chairman was away, and they can still file the application within the three-month back-stop period. There is nothing in the Civil Procedure Rules that forces the club to engage with the Ombudsman scheme.
It is highly likely that the client will be given permission to bring the judicial review claim because it is still within the three-month time limit; the Civil Procedure Rules also do not specifically require that alternative remedies must be exhausted firstly.
There are procedural difficulties. The court could find ‘undue delay’, even if the claim is filed within three months of the date of the letter, and the club should have engaged with the Ombudsman scheme, or at least have an explanation as to why the scheme could not offer a suitable and equal remedy. These issues are likely to impact upon the court’s permission decision, but if permission is granted, they will have no impact upon remedies.
There are procedural issues which could affect whether the club is granted permission to bring a claim or whether it ultimately receives a remedy for any errors in the decision-making process. Even if a claim is filed straight away, the court could find ‘undue delay’ and could also object to the club’s failure to engage with the Ombudsman scheme. The degree to which these issues will have an impact is a matter for the court’s discretion.
Correct. It is arguable that the club has not acted ‘promptly’. Whilst there is no technical barrier (in the Civil Procedure Rules) to bringing a claim where alternative remedies might be available, the courts will consider this as a factor at the permission stage.
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Question 1
In order to address concerns about the behaviour of nightclub door supervisors in controlling patrons, Parliament passed the (fictitious) Regulation of Nightclubs Act 2016 (‘the Act’). The Act creates the Entertainment Conduct Authority (the Authority) to regulate the nightclub industry and to grant licences to individuals. Every door supervisor must hold a licence from the Authority to work in the industry.
The Nightclub Workers’ Federation (NWF) is concerned about the fee that the Authority
is asking its members to pay on applying for their licences, believing it has exceeded its statutory powers and has acted in a biased manner. The NWF wishes to challenge this on their behalf.
Can the NWF seek judicial review of the licence fee?
A No, because the Authority is not amenable to judicial review claims, nor does the NWF have sufficient interest to apply for judicial review.
B No, because although the NWF does have sufficient interest to apply for judicial review, the Authority is not amenable to judicial review claims.
C No, because although the Authority is amenable to judicial review claims, the NWF does not have sufficient interest to apply for judicial review.
D Yes, because the Authority is amenable to judicial review claims, and the NWF does have sufficient interest to apply for judicial review.
E Yes, because as the NWF has sufficient interest to apply for judicial review, the Authority will be deemed to be amenable to judicial review claims.
Answer
Option D is correct. In order to seek judicial review of a decision, there must be a public body carrying out a public function. Here, the Authority is empowered to grant licences, so both elements are satisfied (ex p Datafin). The Authority is therefore amenable to judicial review.
As regards standing, the NWF is a body representing a number of members but, not being able to apply for a licence, is not itself directly affected by the decision. As such, it will have to show that it has ‘sufficient interest’ to challenge the decision relating to application fees, and the factors from the World Development Movement case will assist. The court will consider the need to uphold the rule of law, which here involves what may be an arbitrary attempt to impose a fee and a biased decision by a public body. The importance of the issue, which in this instance is whether or not power is given in the statute to charge a
fee, and the facts of the case, which suggest that the challenge by the NWF would decide a point of interest to a number of different applicants, would also be relevant. It is also unlikely that its members would themselves have the resources to mount an individual challenge. As such, the NWF may be permitted to seek judicial review.
Option A is wrong because it incorrectly states the position regarding both amenability and standing. Although option B correctly states the position regarding standing, it is wrong regarding amenability. Option C is correct regarding amenability, but wrong regarding standing.
Option E is wrong. Although it correctly states that the NWF has standing, it does not therefore follow that the decision-maker is amenable to judicial review claims.
Question 2
A statute provides that all decisions by a particular public body ‘shall not be called into question in any legal proceedings whatsoever’. A company now wants to challenge a decision that adversely affects its interests two months after the decision was made. The reason the company waited for two months before deciding to challenge the decision was that its board of directors was unsure whether or not it was in the company’s interests to bring a challenge. However, last week it obtained counsel’s opinion that there were valid grounds for challenge.
Can the company seek judicial review of the decision?
A Yes, because the ouster clause will not protect decisions of the public body from challenge and the claim will be lodged within the time limit of three months.
B Yes, because the ouster clause will not protect decisions of the public body from challenge and the claim will be lodged without undue delay on the part of the company.
C No, because even though the ouster clause will not protect decisions of the public body from challenge, there has been undue delay on the part of the company in lodging
the claim.
D No, because the ouster clause will protect decisions of the public body from challenge even though the claim will be lodged within the time limit of three months.
E No, because the ouster clause will protect decisions of the public body from challenge and there has been undue delay on the part of the company in lodging the claim.
Answer
Option C is correct. The ouster clause is unlikely to protect the decision from challenge as in Anisminic (above) the House of Lords held that ouster clauses would not protect decisions that were ‘nullities’. Assuming that the counsel’s opinion correctly indicates there are valid grounds for challenge, the ouster clause will not protect the decision from challenge. However, the company must comply with the time limits and must seek permission promptly and without undue delay (SCA 1981, s 31) and in any event within three months of the date of the decision (CPR, Part 54). As the company has waited for two months without good reason, it is probably guilty of undue delay so will not be granted permission to bring
a claim.
Option A is wrong; although it correctly sets out the position regarding the ouster clause,
it is wrong regarding the time limit; there has been undue delay on the part of the company and so it probably cannot bring a claim even though it is still within three months of the date of the decision. Option B is wrong as there has been undue delay on the company’s part.
Options D and E are wrong because the ouster clause will not protect decisions of the public body, even though option E does correctly state there has been undue delay.
Question 3
A local authority has the statutory power to license ice cream vans to sell ice cream within its boundaries. A woman has applied to the local authority for a licence to operate an ice cream van. The local authority has refused to consider her application. She has lost money as a result of being unable to trade.
What remedy or remedies should the woman apply for?
A A quashing order.
B A quashing order and damages.
C Damages.
D A mandatory order and damages.
E A mandatory order.
Answer
Option E is correct. The purpose of quashing orders is to set aside unlawful decisions, but the local authority has refused even to consider the application. A mandatory order will force the local authority to consider the woman’s application lawfully.
Although the woman has lost money due to the refusal to consider the application, she is unlikely to obtain damages. In a claim for judicial review, a claimant can only be awarded damages if they can establish that their private law rights have been infringed. However, damages are not available purely for the infringement of a public law right (ex p Maguire (above)).
Options A and B are therefore wrong because there is not a decision to quash, and additionally option B refers to damages. Options C and D are wrong because they refer to damages, even though option D does correctly refer to a mandatory order.
Your client wants to challenge a decision of the (fictitious) English Croquet Council (the “Council”) to ban him from playing croquet for six months due to unacceptable behaviour. The Council was set up by a group of local croquet clubs around fifty years ago in order to regulate croquet. It governs the rules of the game; the codes of conduct under which your client received a sanction; and the relationships between local clubs and itself. All Council members, including your client, agree to be subject to its rules. It is the sole regulator of croquet in the UK.
Which of the following summarises the most accurate advice to your client on whether the Council’s decision is amenable to judicial review?
Select one alternative:
The Council’s decision is amenable to judicial review because its functions and powers are public in nature and, if it did not exist, the government would need to step in to regulate croquet.
It is unlikely that the Council’s decision is amenable to judicial review. On the facts, the rules affecting the client come from an agreement between clubs, their members and the Council, giving rise to private rights and remedies.
The Council’s decision is not amenable to judicial review because the Council’s functions have not been contracted to it by a public body.
It is likely that the Council’s decision will be amenable to judicial review because its powers associated with the regulation of a sporting activity are governmental in nature.
The Council’s decision is not amenable to judicial review because the Council is a private body.
It is unlikely that the Council’s decision is amenable to judicial review. On the facts, the rules affecting the client come from an agreement between clubs, their members and the Council, giving rise to private rights and remedies.
This question requires knowledge about the type of decisions that can be challenged in judicial review, known as their amenability to judicial review. These are not simply decisions taken by public bodies. They can also include decisions taken by ostensibly private organisations if the decision involves matters that are of a sufficiently public nature. However, in this situation, involving a sporting association, it is unlikely that the decision taken will be seen to involve a public function. Also, it is clear that the clubs and members have agreed to abide by the organisation’s own rules. It is therefore unlikely that this matter will be challengeable in public law through JR.
A company director wishes to challenge the lawfulness of a statutory instrument which imposes onerous conditions on part of the company’s business, affecting its profitability.
Which of the following statements best describes whether and how the lawfulness of the statutory instrument can be challenged?
Select one alternative:
A statutory instrument is a form of secondary legislation and it is possible to challenge its lawfulness in the Administrative Court. If the challenge is successful, the Administrative Court can quash the provision in the Act under which the statutory instrument was made.
A statutory instrument is a form of secondary legislation and it is possible to challenge its lawfulness in the Administrative Court. If the challenge is successful, the remedy is a declaration that the statutory instrument is incompatible with the parent Act under which it was made.
It is not possible to challenge the lawfulness of the statutory instrument, as this is a form of legislation passed by Parliament, but the Administrative Court may read in words to the provision in order to render it lawful.
It is not possible to challenge the lawfulness of the statutory instrument as this is a form of legislation passed by Parliament and such an outcome would undermine the basic principle of parliamentary sovereignty.
A statutory instrument is a form of secondary legislation and it is possible to challenge its lawfulness in the Administrative Court. If the challenge is successful, the Administrative Court is able to quash the statutory instrument.
A statutory instrument is a form of secondary legislation and it is possible to challenge its lawfulness in the Administrative Court. If the challenge is successful, the Administrative Court is able to quash the statutory instrument.
This question requires knowledge that primary and secondary legislation have different statutes. A statutory instrument (SI) is a form of secondary or delegated legislation, and it is capable of challenge in court, unlike primary legislation which cannot be directly challenged, given the central importance of parliamentary sovereignty. It is also important to note that, if the Administrative Court does not feel that the SI has been made in accordance with the original ‘parent’ Act, the remedy would be for the court to quash the SI.
