Judicial Review Flashcards
Amenability
- A decision will be amenable to judicial review if it is a public law decision, defined in CPR r 54
as ‘a decision, action or failure to act in relation to the exercise of a public function’. - This will be satisfied if a classic public body is exercising powers whose source is statute or
secondary legislation (Datafin), or the royal prerogative (GCHQ) - Otherwise, it is a matter of examining the nature of the power (Datafin), alongside the factors identified in key cases concerning regulatory bodies, and private companies who have had services ‘contracted out’ to them by public bodies.
- The decision in O’Reilly established a general procedural rule, that judicial review was the
exclusive procedure for challenging public law decisions. To bring a public law challenge any other way would amount to an abuse of process. - Subsequently, exceptions to this criticised ruling have arisen in the context of mixed cases
involving public and private law claims (Roy; Clark).
Standing
An individual or organisation must have ‘sufficient interest in the matter to which the
application relates’ (s 31(3) SCA).
- Stage 1: Initial permission stage
At this stage the standing test is designed to turn away those with little hope of success or vexatious litigants - these were described by the court in the Fleet Street Casuals case as
‘busybodies, cranks and other mischief-makers’. - Stage 2: Full hearing stage
Standing can be re-considered. At this stage the court could consider in more detail whether
the applicant can show a strong enough case on the merits, taking into account the proximity
of his connection to the issue in the case. The Fleet Street Casuals case did not provide a definitive answer to the sufficient interest test in circumstances where groups and individuals are not immediately affected by a decision but are clearly not ‘busybodies’ or ‘mischief-makers’ either. A body of case law has developed concerning the standing rules and different categories of claimants. - Expertise and reputation of Greenpeace
- Its genuine concern for environmental issues
- Greenpeace had 2,500 supporters who lived in Cumbria and were therefore, arguably affected importance of vindicating the rule of law
- Likely absence of any other responsible challenger
- Nature of the breach of the duty against which relief was sought
- Prominent role of WDM in giving advice, guidance and assistance on overseas aid
Time limits
The time limit for a judicial review application is short and strictly applied. CPR Part 54.5(1) states that:
a claim must be filed (a) promptly and (b) in any event no later than 3 months after the grounds to make the claim first arose.
Therefore, judicial review can sometimes be refused if a claim is not filed promptly, even if it was filed within three months.
CPR Part 54.5(2) stipulates that time cannot be extended by agreement between the parties,
although it can be extended by the court pursuant to its general power under CPR Part 3.1(2)(a).
The Senior Courts Act 1981, s 31(6) makes it clear that, where there has been undue delay,
judicial review can be refused if the court ‘considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration’.
Ouster clauses
- Total ouster clauses: The courts are unlikely to uphold a total ouster clause (Anisminic; Privacy
International). - Partial ouster clauses: The courts are likely to uphold a partial ouster clause which abridges the limitation period (Smith v East Elloe; ex p Ostler).
Grounds of illegality
- Simple illegality (pure ultra vires): Where the decision-maker acts ‘outside of the four corners
of the Act’. - Errors of law: The decision-maker makes a mistake concerning a question of law. For example, it misinterprets the meaning of a statutory power.
- Errors of fact:
- Precedent facts: initial findings of fact which trigger the decision-maker’s power.
- No evidence for a fact: The finding of fact is not supported by evidence.
- Ignorance or mistake of an established fact: An established fact is ignored or misunderstood.
- The test for a mistake of established fact has now been set in the case of E.
- Considerations: Fails to take into account a relevant consideration or takes an irrelevant consideration into account (Fewings; Venables and Thompson).
- Improper purpose: Uses a statutory power for an improper purpose (Congreve; Fewings).
- Fettering of discretion:
- Fetters their discretionary power by failing to exercise the power or by abdicating it (Fire
Brigades Union). - Fetters their power by applying a policy rigidly or in a blanket fashion (Brent; British
Oxygen; Collymore). - Unlawful delegation: Unlawfully delegates the power (Carltona; Oladehinde; s 101, LGA)
Ground of Unreasonableness
We have considered the following sub-classes of unreasonableness in the context of the Wednesbury test:
* Material defects in the decision-making process. Where the decision-maker:
- Wrongly weighs-up relevant factors; or
- Fails to provide a comprehensible chain of reasoning (‘irrationality’).
- Oppressive decisions. Where the decision-maker imposes excessive hardship which is
considered unnecessary. - Decisions that violate constitutional principles. Where the decision-maker makes inconsistent or uncertain decisions.
In the context of unreasonableness, we have considered: - The courts’ approach to the intensity of review: To what degree will the courts scrutinise the decision under challenge?
- A higher intensity of review: ordinarily in cases involving fundamental rights; or
- A lower intensity of review: ordinarily in cases involving social and economic policy, or other high policy matters such as national security.
- Intensity of review is not a binary consideration; cases may involve both fundamental rights
and social and economic policy. The courts will determine this question on a case-by-case
basis. - The increasing significance of the proportionality approach.
The standard of review, set out by Lord Greene in Wednesbury, was based on the following
formulation: [if] a decision on a component matter is so unreasonable that no reasonable authority could have come to it, then the courts can interfere
This represents a very high threshold for an applicant to overcome – a notably high or
exceptional level of unreasonableness would have to be found.
Ground of Procedural Impropriety
We have considered the following aspects of procedural impropriety:
* Procedural statutory rules:
- The courts’ approach to the assessment of potential breaches, which now centres on the consequence of breach and not on the language in the statute (Soneji; JN (Cameroon))
* Duty to act fairly (common law fairness):
- When does the duty to act fairly arise? (Ridge v Baldwin)
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- What is the level of the duty to act fairly? (Lloyd v McMahon; McInnes) - this will depend on
the context of the decision and what is at stake.
* Duty to act fairly (common law fairness):
- ‘The right to be heard’: The content of the fairness and the courts’ approach to assessing
these matters, which includes:
◦ Notice of the case against a person, including oral hearings;
◦ The right to make representations;
◦ The right to call witnesses;
◦ The right to use legal representatives;
◦ The right to receive reasons.
- The common law does not acknowledge an automatic right to the full range of above
‘content’ – or ingredients of fair process – but we have seen that the courts can invalidate
decisions taken if procedural ‘rights’ have not been allowed.
- The trend is seemingly moving in the direction of greater procedural fairness as part of a
general move to promote enhanced government accountability.
* Duty to act fairly (common law fairness):
- The rule against bias:
◦ Direct bias (Dimes)
◦ Indirect bias (Porter v Magill) - the ‘fair-minded and informed observer’ test
- This can be exemplified through cases of:
◦ Unauthorised participation or presence
◦ Pre-formed views
◦ Policy bias
◦ Necessity
The rule against bias
Forms of interests giving rise to direct bias: such interests have largely been confined to financial interests on the part of the decision-maker. This is the most common concern based on the principle that one should not be a judge in one’s own cause.
Indirect bias: ‘The question is whether the fair-minded and informed observer, having
considered the facts, would conclude that there was a real possibility that the tribunal was
biased’. (Lord Hope)
Direct bias will invalidate the decision. This is sometimes referred to as ‘automatic
disqualification’.
Ground of Legitimate Expectation
The two types of legitimate expectation:
- Procedural: where a public body has either promised that a particular procedure will be
followed, or past practice indicates that it should be followed.
- Substantive: where a public body makes an assurance or a promise that has led a person
to believe they will receive a particular, tangible benefit.
* The courts’ approach to assessing legitimate expectation:
- Has an expectation arisen? An expectation could arise in the context of an express promise
(in a specific or policy representation), or through established past practice.
- Is the expectation legitimate? Factors to consider may include clarity, legality, agency,
reliance and knowledge.
We have also considered the courts’ approach to assessing whether a public authority has
lawfully frustrated a legitimate expectation in the context of:
* Procedural legitimate expectations:
- The interests of fairness will usually require procedural legitimate expectations to be
fulfilled, unless there is a compelling public interest reason not to (see eg GCHQ).
* Substantive legitimate expectations:
- The decision in Coughlan is important to understand the courts’ approach.
- The proportionality standard has increasingly influenced the courts’ assessment of the
frustration of legitimate expectations.
