Judicial Review

Question 1

Is judicial review the appropriate procedure? (amenability)

Answer 1

1. Must be public law matter
2. Decision must be made by public body (look at nature of power)

Question 2

What are the Datafin criteria for establishing whether something is a public body?

Answer 2

Look at the nature of the power as well as the source

Source: if body has been set up by statute / prerog power etc.

Nature: is the nature of its power governmental?

• If body didn’t exist, would gov have to establish?
• v. is it governed entirely by private (contractual) law?

Question 3

Does the claimant have standing?

Answer 3

Must have sufficient interest

(if personally affected, will satisfy this requirement)

Question 4

Do pressure groups have standing?

Answer 4

Potentially - consider:

• Significance of issue raised & alleged breach
• Are there any other responsible challengers?
• Status of group

Question 5

What are the time limits for bringing a JR claim?

Answer 5

Must bring without undue delay –> claim form must be filed within 3 months of decision

(6 weeks for planning)

Question 6

What is the time limit for bringing a JR claim in relation to planning?

Answer 6

6 weeks

(as opposed to standard 3 months)

Question 7

What is an ouster clause?

Answer 7

Clause in Act of Parliament excluding right of challenge once decision has been made by a public body

Question 8

Will the courts uphold an ouster clause?

Answer 8

Full (ie. no right of challenge) → will not protect unlawful decision

Partial (limitations to right of challenge) → courts more amenable

Question 9

What is the process of a JR claim in the courts?

Answer 9

Permission stage → courts consider standing, time limit, merit

then Substantive stage (hearing before Administrative Court)

Question 10

Which court hears substantive JR proceedings?

Answer 10

Administrative Court

Question 11

What are the 3 prerogative orders that the court has the discretion to make in a JR claim?

Answer 11

→ Quashing order: decision nullified - DMer must start DM process again

→ Prohib. order: prevent public body from continuing to act unlawfully

→ Mandatory order: orders public body to do sth

Question 12

What are the remedies available in a JR claim?

Answer 12

Prerogative orders:
→ Quashing order
→ Prohib. order
→ Mandatory order

Other remedies:

• Declaration of the Court (confirm’s party’s legal right or position)
• Injunctions
• Damages (if would’ve been awarded in a civil claim)

Question 13

Are damages a possible remedy in a JR claim?

Answer 13

V. Rare - can be awarded damages where wouldve been awarded in civil claim

ie. claimant must have private law course of action (eg. in contract, in tort, for breach of convention right)

Question 14

What are the 4 grounds of JR?

Answer 14

1. Illegality
2. Irrationality
3. Procedural Impropriety
4. Legitimate Expectation

Question 15

What is the JR ground of illegality?

Answer 15

Where an action is beyond the powers of the public body - because they don’t exist or are abused / exceeded in some way

→ Errors of law

→ Errors of fact re jurisdiction or which go to root of body’s capacity to act

→ Fettering of discretion

→ Abuse of discretion

Question 16

What is fettering of discretion by a public body, and which ground of JR will it come under?

Answer 16

Part of ILLEGALITY

Arises where a DMer is:

• Applying a policy too strictly
• Wrongfully delegated powers
• Acting under the dictation of another

Nb. rule against delegation except to civil servants or local authority to committees / officers

Question 17

Can a public body delegate powers conferred on it by Parliament?

Answer 17

General rule: No

Exceptions:

1. Govt ministers can delegate decision making powers to civil servants in their department
2. Local Authorities can delegate DM powers to committees or officers (provided have passed formal resolution to do so)

Question 18

What is abuse of discretion by a public body & what JR ground does it come under?

Answer 18

Part of ILLEGALITY

Arises where DMer

• Uses powers for an improper purpose
• Takes into account irrelevant considerations / disregards relevant considerations

Question 19

What is the JR ground of irrationality?

Answer 19

Need to show high degree of unreasonableness (high threshold to satisfy)

Wednesdbury: ‘so unreasonable that no reasonable authority could ever have come to it’

CCSU: ‘so outrageous in its defiance of logic or accepted moral standards that no sensible person could have arrived at it

Question 20

What is the JR ground of procedural impropriety?

Answer 20

→ Procedural fairness

• Rule against bias
• Right to a fair hearing

→ Procedural ultra vires: was procedure followed

Question 21

What is the right to a fair hearing & what JR ground does it come under

Answer 21

Part of PROC IMPROPRIETY

Right to fair hearing applies only to final decision & depends on context

Ask: how much did the claimant stand to lose?

1. Forfeiture: has most to lose - high threshold
   * Should have right of reply at each stage of DM process
2. Legitimate expectation: legitimate for C to expect they would have continuation of established practice

• Nature of hearing depends on expectation DMer has created

3. Application: first time seeking sthg not previously held

• Entitled to have cases heard honestly & without bias, but lower threshold otherwise

Question 22

Is there an automatic right to know the reasons for a decision-maker’s decision?

Answer 22

No

(Unless decision looks completely wrong or when reasons are required to challenge legality of decision)

Question 23

Is there an automatic right to an oral hearing or cross-examination of witnesses?

Answer 23

No (altho claimant in forfeiture case might consider it fair)

Question 24

If the decision-making procedure set out in the relevant Act of Parliament has not been followed, what ground of JR will this be?

Answer 24

Comes under PROC IMPROPRIETY

Look at the statutory procedural requirements in the act → are they:

• mandatory (decision invalid if procedure not followed) or
• directory

Ask: would parliament have considered the consequence of non-compliance with the statutory requirement to make the decision invalid?

Question 25

What is the JR ground of legitimate expectation?

Answer 25

An express promise or regular working practice may give rise to:

→ Procedural legitimate expectation

→ Substantive legitimate expectation (where DMer has led someone to believe they will receive benefit)

• Promise should be honoured unless public interest prevails