JR III - Procedural Impropriety and LE - Consolidation MCQs Flashcards
Which of the following statements best reflects a summary of the courts’ approach to the duty to act fairly and the level of fairness owed?
The modern approach of the courts recognises that there is a duty to act fairly in judicial and administrative decision-making, although, in rare circumstances, the duty can be overridden.
The duty to act fairly applies in respect of all judicial decisions and additionally to some administrative-type decisions.
The courts have recognised that there is a general duty to act fairly in administrative and judicial decision-making. The key question, in determining whether that duty has been breached in any given situation, concerns the level of fairness that should apply; this will vary depending on the overall context of the case.
Public law decision-makers have a duty to act fairly with respect to administrative and judicial decisions and the level of that duty will depend upon the character of the decision-making body.
Administrative and judicial decision-makers have a general duty to act fairly, which is applied with equal strength across all areas of public law decision-making.
The courts have recognised that there is a general duty to act fairly in administrative and judicial decision-making. The key question, in determining whether that duty has been breached in any given situation, concerns the level of fairness that should apply; this will vary depending on the overall context of the case.
Correct. The existence of a general duty was recognised in Ridge v Baldwin where the court said that the question concerning the court should be the extent of the justice required in any given situation. The significance of the context of the decision and the legal issue in question was discussed in cases such as Durayappah and Lloyd v McMahon.
After deciding to build an extension to its council-run leisure centre, Abington City Council (“ACC”) put out the construction work to tender. Two construction companies submitted detailed bids, one of which is an existing client of yours. The Managing Director (“MD”) of your client company tells you that his company’s bid was unsuccessful. He was disappointed because he understood that his company had far greater experience of these kinds of projects than the competitor company, and his company had provided a much lower costing than the competitor company.
A few weeks after the decision was made, the MD was surprised to learn that the competitor company’s MD is the brother of one of the members of the ACC committee which made the decision.
On the basis of the information you have, which of the following statements summarises the most accurate advice on whether there is merit in your client challenging the decision of ACC on the ground of procedural impropriety?
The client has a potentially strong claim based upon indirect bias.
It is unlikely that the client would succeed in a claim concerning direct bias or indirect bias, because it is not apparent that the brother on the decision-making committee has a financial interest in the competitor company.
The client has an indirect bias claim, but it will not succeed because there is no evidence that the brother on the decision-making committee said or did anything that proved he was actually biased.
The client has an indirect bias claim, but it will not succeed because only one member of the decision-making committee was potentially biased.
The client has a strong claim based upon direct bias.
The client has a potentially strong claim based upon indirect bias.
Correct. It is likely that a ‘fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility’ that the committee was biased as per the test in Porter v Magill. On the facts, there is a close family relationship between the competitor company MD and one committee member. It is not a mitigating factor that only one committee member was potentially biased, as he would have had influence as a decision-maker.
Refer to cases such as Hannam where three out of ten of the decision-making committee were potentially biased, and ex parte Hook, where the mere presence of a potentially biased person who was not a decision-maker was enough for the court to quash the decision.
Your client, the owner of a local nightclub, has sought your advice in relation to a recent decision of the local authority’s licencing committee to impose a final written warning on him. Several local residents had made complaints that he had kept his premises upon longer into the early morning than permitted under the licence conditions. He is very concerned because, if there are any other infringements, he is at risk of losing his licence completely.
He tells you that the “notice of proceedings” document from the committee, notifying him of the allegations against him, had been emailed to him two weeks beforehand, together with scanned copies of two (anonymised) letters of complaint from local residents.
You look at the relevant Act, governing this situation, which states, at [fictitious] section 13: “Before deciding if enforcement measures can be taken, the subject of the complaint must be given reasonable notice in writing and sent all available evidence against him in order to give him the opportunity to respond.”
Your client, (who had sent a letter in his defence to the committee), believes that the failure to send him written notice through the post could enable him to challenge the decision.
On the basis of the information you have, which of the following summarises the most accurate advice on whether there is merit in your client challenging the committee’s decision on the ground of procedural impropriety and what rationale the court would apply in assessing this?
It is likely that your client could successfully argue that the failure to send him evidence collected in writing represented a breach of his common law right to be given notice of the case against him.
It is unlikely that your client will succeed on this basis. The failure of the committee to send “notice in writing” appears to be a technical breach of section 13 but it does not seem on face value to have prejudiced him in any significant way. The court is therefore likely to construe from the situation that Parliament could not have intended such a breach to be sufficiently serious to justify the invalidation of the overall decision. It would be prudent, however, to look further into whether the copies of the two anonymised letters represented “all available (relevant) evidence” against him.
It is unlikely that your client will succeed on this basis. The failure of the committee to send “notice in writing” appears to be a technical breach of section 13, but it does not seem on face value to have prejudiced him in any significant way
Although the committee appears to have breached the procedural requirement in section 13 it is unlikely that Parliament could have intended for its final decision to be quashed because the final consequences for your client – a warning letter – were not particularly serious.
It is arguable that the failure of the committee to observe the procedural rule in section 13 of the Act could result in a court quashing its decision because the statutory obligation is phrased in a mandatory way and statute is the most important form of law.
It is unlikely that your client will succeed on this basis. The failure of the committee to send “notice in writing” appears to be a technical breach of section 13 but it does not seem on face value to have prejudiced him in any significant way. The court is therefore likely to construe from the situation that Parliament could not have intended such a breach to be sufficiently serious to justify the invalidation of the overall decision. It would be prudent, however, to look further into whether the copies of the two anonymised letters represented “all available (relevant) evidence” against him.
Correct. This best reflects the approach of the modern courts to statutory procedural obligations following the cases of R v Soneji and JN(Cameroon). It would also be wise to check on whether there was any other evidence against your client – maybe of a more damaging nature – that was not disclosed, thereby depriving him of the opportunity to provide some mitigation
After being re-elected two years ago, the Minister for the Environment wrote to each local authority in England, in accordance with his party’s election manifesto pledge, assuring them that their concerns regarding the development of green belt sites for new homes were not founded and that the government ‘had no current plans’ to review that decision within the next five years.
Corkminster Borough Council (“CBC”) made this information available to its residents on its official website. It also funded an environmental project to investigate how to better protect its local green belt land.Very recently, however, the Minister for the Environment announced plans for 10,000 new homes to be built on green belt land in the Vale of Cork (which forms part of the CBC area).
On the basis of the information you have, which of the following summarises the most accurate advice on whether CBC would have good prospects of success in challenging the decision of the Minister for the Environment on the ground oflegitimate expectation?
As the Minister’s letter making the promise was based upon an election manifesto pledge, the court will not treat the promise as having been made by a public authority. Consequently, the expectation cannot be treated as legitimate.
A policy statement is capable of forming a legitimate expectation. However, given that the facts concern a macro-policy issue, the court will be reluctant to intervene. Consequently, the prospects of a successful review are poor.
The promise concerns a macro-policy issue and therefore, it is likely that the court will apply a Wednesbury standard of review to the question of whether the legitimate expectation contained in the policy statement was lawfully frustrated. Consequently, it is unlikely that any claim brought by CBC would succeed.
A claim brought by CBC has reasonable prospects of success because it relied upon the promise and decided to fund an environmental project.
Whilst a statement of policy is capable of amounting to a legitimate expectation, CBC’s prospects are adversely affected by two key issues. Firstly, it is debatable whether a statement saying that the government has ‘no current plans’ amounts to a clear and unambiguous promise. Secondly, as this is a macro-policy matter, the court will be reluctant to intervene in any event.
Whilst a statement of policy is capable of amounting to a legitimate expectation, CBC’s prospects are adversely affected by two key issues. Firstly, it is debatable whether a statement saying that the government has ‘no current plans’ amounts to a clear and unambiguous promise. Secondly, as this is a macro-policy matter, the court will be reluctant to intervene in any event.
Correct. It is questionable whether the Minister’s policy statement contained in their letter is sufficiently clear. In ex parte MFK Underwriting the court said that promises should be ‘clear, unambiguous and devoid of relevant qualification’. Even if the applicant can demonstrate a legitimate expectation has arisen, it would be unlikely, given the macro-policy nature of the matter, that the court would intervene. In Begbie the court found that, where a promise had policy implications and was made on a ‘macro’ level, review would be restricted to a Wednesbury unreasonableness standard. There was a similar approach in the Re Finucane’s Application case.
Your client, a dentist, has sought your advice in relation to a recent decision of the (fictitious) Dental Practice Committee (‘DPC’). One of her patients had made a complaint that she had acted unprofessionally by using unacceptable language in front of her, which the patient had found offensive. The complaint was investigated by the DPC whose powers derive from the (fictitious) Professional Bodies Regulatory Act 1999.
Your client disputed the facts presented by the complainant and asked the DPC for a hearing, including permission for her barrister to question the complainant. The committee chair refused permission, however, and told your client in an email that: “We do not have the time or resources in terms of personnel to have a face to face hearing. We have received the complaint against you, and you are entitled to reply to that in writing. We will then weigh up the respective arguments and notify you of our decision.”
Subsequently, she was very upset to receive the DPC’s decision to suspend her from practice for a 12-month period. Your client is a single parent and tells you that she will not be able to manage if she cannot work for a year. She has been in practice for 15 years following her graduation from dental school.
On the basis of the information you have, which of the following summarises the most accurate advice on whether and why there is merit in your client challenging the decision of the DPC on the ground of procedural impropriety?
Your client’s public law challenge to the fairness of the disciplinary process would only have a limited chance of success. She was given the right to respond in writing to all the allegations and so there was no need to spend extra time on a hearing, especially if she was seeking to put the complainant under pressure by employing a barrister.
It is likely that your client’s challenge will be successful in respect of the failure to call an oral hearing. The level of fairness that would be appropriate for her in this situation can be described as medium-high, given the serious professional consequences for her, and so the court is likely to consider that she should have been given the opportunity to present her version of events and to try to convince the committee of her good character, experience and bona fides. It is a little more debatable whether a court would consider it to have been unfair to have refused her permission to call a barrister, as this was a professional disciplinary rather than a purely legal process.
Your client’s challenge has very strong prospects of success in relation both to the refusal to call an oral hearing and to allow a barrister to represent her. The level of fairness that would be appropriate for her in this situation would be seen at the very top of the scale, given the serious professional consequences for her. Therefore the court will quash the decision, because it will deem it to have been unfair for her not to have had the opportunity to present her version of events and to try to convince the committee of her good character, experience and bona fides.
On balance it is unlikely that a court would find the process to have been conducted unfairly. Your client would be owed a duty of fairness but, because the case did not involve matters of life and liberty, the more modern emphasis put on fair process in cases involving prisoners and parole conditions would not apply here. Consequently, it would be very difficult to persuade a court that the refusal to allow her an oral hearing, and particularly to deny her use of a barrister, amounted to unfair practice sufficient to justify quashing the overall decision.
Your client’s prospects of being able to challenge the decision to suspend her from practice are unlikely to be high because there is no statutory obligation on the DPC to provide her with the right to have an oral hearing or to employ a barrister to represent her.
It is likely that your client’s challenge will be successful in respect of the failure to call an oral hearing. The level of fairness that would be appropriate for her in this situation can be described as medium-high, given the serious professional consequences for her, and so the court is likely to consider that she should have been given the opportunity to present her version of events and to try to convince the committee of her good character, experience and bona fides. It is a little more debatable whether a court would consider it to have been unfair to have refused her permission to call a barrister, as this was a professional disciplinary rather than a purely legal process.
Correct. This is the best answer as it stresses the relatively high level of fairness that would be expected in this situation. It also points to the reason why an oral hearing would be appropriate and functionally useful as well, because such a process would have given your client the opportunity to convey her character and her experience to the committee, and enabled her to have maximum opportunity to refute any allegations. See cases such as Smith & West and Osborn. The answer also reflects more caution in respect of the barrister issue – this is more of a moot point, given that the Administrative courts can be wary of making administrative processes too legalistic.
Question 36
A client objects to a decision which has been made to grant planning permission for the building of a supermarket on land near his home. The client has discovered that the chairman of the planning committee that made the decision is a non-executive director of the supermarket chain in question.
Which of the following best describes the status of this decision?
A. Only where the facts suggest to the court that there was in fact a conflict of interest and that the decision was in fact biased will the decision be held unlawful.
B. If the client can prove that a fair minded and informed observer would naturally conclude that there was a conflict of interest, the decision will be held to be automatically biased and thus unlawful.
C. For the decision to breach the rule against bias and thus be held unlawful, the client must prove to the court on a balance of probabilities that the chairman was actually biased.
D. Only if the facts suggest to the court that a fair minded and informed observer would conclude that the decision was biased will the decision be held unlawful.
E. If the facts suggest to the court that a fair minded and informed observer would conclude that there was a real possibility of bias, the decision will be held unlawful.
E - If the facts suggest to the court that a fair minded and informed observer would conclude that there was a real possibility of bias, the decision will be held unlawful.
Your client is the managing director (“MD”) of a construction company which submitted an unsuccessful bid to build a new library for a local authority. The MD is very disappointed because his company had far greater experience of these kinds of projects than the only other competitor company. He has also discovered that his costing was lower than the competitor’s.
A few weeks after the decision was made, the MD was surprised to hear that the chair of the competitor company was a long-standing friend of one of the three members of the local authority committee which made the decision.
On the basis of the information you have, which of the following statements summarises the most accurate advice on your client’s prospects of challenging the local authority’s decision on the ground of procedural impropriety?
Select one alternative:
Your client has a potentially strong claim based upon indirect bias.
It is unlikely that your client would succeed in a claim because it is not apparent that the member of the decision-making committee had a financial interest in the competitor company.
Your client has a potentially strong claim based upon direct bias.
Your client has a potential indirect bias claim, but it will not succeed because only one member of the decision-making committee could have been biased.
Your client has a potential indirect bias claim, but it will not succeed because there is no evidence that the friend on the decision-making committee said or did anything that proved they were actually biased
Your client has a potentially strong claim based upon indirect bias.
This question requires knowledge of how public law decisions can be challenged on the ground of bias and of the two different forms of bias. There is a clear connection here between the two individuals involved. The decision-maker does not have a direct, financial interest in the matter (or rather there is no evidence of that which has been disclosed) so this cannot be a matter of direct bias. However, the closeness of their connection gives rise, on an objective basis, of there being a real possibility of bias which is the test for indirect bias. It does not matter that the individual was one of a three-person panel – that is enough to give rise to this ‘real possibility’.
State’s department and was sent a copy of a departmental circular, which states ‘when awarding compensation, a full award will normally be given to charitable organisations providing care for disadvantaged groups’.
Which of the following best describes the grounds on which the charity should seek judicial review of the amount of the award?
A The charity’s claim is likely to fail as it is a mere applicant and the Secretary of State’s only duty is to act honestly and without bias. On the facts provided, there is no evidence of dishonesty or bias.
B The charity’s claim is likely to fail. The Secretary of State is under no duty to give reasons and, in the absence of reasons, the charity cannot prove the Secretary of State has acted illegally or irrationally.
C The charity’s claim is likely to succeed. By failing to award £100,000 compensation, the Secretary of State has breached a mandatory procedural requirement.
D The charity’s claim is likely to succeed. The statement in the circular is likely to create a substantive legitimate expectation that its application will be successful and it will be an abuse of power to frustrate that expectation.
E The charity’s claim is likely to succeed. In the absence of reasons, the decision is likely to be held to be irrational
Answer
Option E is correct. The charity will most likely be able to bring a claim based on irrationality. Whilst there may also be procedural impropriety, neither option C nor option D correctly summarises the position.
The charity is entitled to a fair hearing. On the face of it, it is a first-time applicant for compensation (McInnes v Onslow-Fane), which may impact on what is expected of the decision-maker in order to achieve fairness. However, the charity will argue that the statement in the circular has created a substantive legitimate expectation that its application will be successful.
It is then necessary to analyse whether this case falls within the first or third of Lord Woolf’s categories in Coughlan. It is likely to fall within the first category as it involves the payment of money rather than a basic need such as healthcare. The charity would therefore have to rely on irrationality. As no reasons have been given for reducing the award of compensation from £100,000 to £5,000, the charity has a strong argument that the Wednesbury threshold of irrationality has been reached. Option E is therefore correct and a better answer than option D. Option B is also clearly wrong as the absence of reasons is likely to lead to a finding of irrationality.
Although there is no general requirement for ministers to give reasons for their decisions,
the courts may require this if the decision appears wrong. Here, they may require reasons
to enable the charity to ascertain whether the minister took all relevant circumstances into account in reaching his decision (ex p Cunningham). In this case, the size of the award may appear unjustifiably low, and if so, the decision could be quashed for the failure to give reasons. However, this duty arises from the common law rules of procedural fairness, and do not arise from statute; hence option C is wrong. Option A is wrong as the circular has created a legitimate expectation that the charity will receive a full grant.
Question 3
Assume that a statute (fictitious) gives local authorities the power to order the closure of market stalls in a public market if the trader has repeatedly sold goods that are not of
a satisfactory quality. The statute provides that the operator of any stall that is to be the subject of a closure order shall be given seven days’ notice of the order, and shall also be given the right to make representations against the closure. Using its power, the local authority has sent a notice to a trader ordering the closure of his stall after seven days. The local authority has stated that due to the poor quality of the goods the trader sells, there is no point in him making representations.
Which of the following best describes whether the trader could seek judicial review of the closure notice?
A The trader’s claim is likely to fail. Due to the seriousness of the matter, the local authority was entitled to dispense with the requirement to allow the trader to make representations.
B The trader’s claim is likely to fail. The requirement to allow the trader to make representations is merely a guidance as to good practice and its breach does not render the closure notice invalid.
C The trader’s claim is likely to fail. The requirement to allow the trader to make representations is merely a directory procedural requirement and its breach does not render the closure notice invalid.
D The trader’s claim is likely to succeed. The requirement to allow the trader to make representations is a mandatory procedural requirement as Parliament probably intended its breach to invalidate the closure notice.
E The trader’s claim is likely to succeed. The local authority has acted without legal authority in ordering the closure of the stall without allowing the trader to make representations.
Answer
Option D is correct. The issue is whether the local authority has failed to comply with a mandatory procedural requirement or a directory one. Non-compliance with the former renders a decision invalid on grounds of procedural ultra vires, whereas failure to comply with a directory requirement does not. An important factor that the court will take into account is the wording of the statute itself. According to the facts, the statute provides that local authorities ‘shall’ allow operators of stalls to make representations; this points towards a mandatory obligation to consult. However, the language used is not conclusive.
Case law also shows that where a claimant is substantially prejudiced by non-compliance
with an important procedural safeguard, the courts are likely to rule a statutory requirement is mandatory. Another question is whether Parliament would have intended the consequence of non-compliance with the relevant statutory requirement to be the invalidity of the decision. This seems likely, as closure of the stall will deprive the trader of his livelihood. Accordingly, options C and B are wrong for suggesting the requirement is merely directory or guidance as to good practice respectively.
Option A is wrong as, in the absence of statutory authority, the seriousness of the matter does not dispense with the need to observe procedural requirements.
Option E is wrong as the local authority did have the legal authority to order the closure of the stall, provided it followed the correct procedure. Acting without legal authority (one of the headings under illegality) arises when a decision-maker does not have the power at all to take a given decision, no matter how properly it tried to act.
