Judicial Review Flashcards
What are the 3 stages of a judicial review hearing?
Pre-action protocol
Permission stage
Substantive hearing
O’Reilly v Mackman establishes what about the use of judicial review proceedings?
It is an abuse of process to use ordinary / private proceedings to avoid limitations on a judicial review claim.
Procedural exclusivity means…
Public law issues must be litigated through judicial review.
How is it established that a body is a public body?
The source and nature of powers tests.
Source of powers test?
Where does the public body’s power come from?
Statute / prerogative usually indicate a body is public.
R v Disciplinary Committee of the Jockey Club ex p Aga Khan establishes…
Where there is a private or contractual relationship between parties, this indicates it is a private relationship (thus not amenable to judicial review).
Nature of powers test?
Where a public body has ‘contracted out’ to a private one, does the private body become amenable to judicial review?
R v Servite Houses ex p Goldsmiths establishes…
Whether a private body is amenable to judicial review depends on the ‘public element or flavour’ of the arrangement.
R (Beer) v Hants Farmers Markets Ltd establishes…
Local government that had set up a private company, which WAS held to be amenable to judicial review as was set up by the local authority (public body).
If a local government has set up a private company, will the private company be amenable to judicial review?
Goldsmiths - depends on the ‘public element or flavour’ of the arrangement.
BUT
R (Beer) v Hants Farmers Markets Ltd - private company was held to be a public body as the local authority set it up.
Sharma v Brown-Antione establishes…
Courts refuse leave to claim judicial review if there is not a realistic prospect of success.
What does s.31 Senior Courts Act 1981 - as amended by s.84 Criminal Justice and Courts Act 2015 - establish about standing for judicial review?
Standing for judicial review will only be granted where it is ‘highly likely’ a ‘substantially different outcome’ would result.
Who has discretion as to the sufficient interest test?
The court
Which case clarified the ‘sufficient interest’ test?
IRC v National Federation of the Self Employed / Fleet Street Casuals case.
What is the current test for establishing sufficient interest? Source?
Lord Wilberforce in Fleet Street Casuals:
The powers and duties in law of those against whom a remedy is asked.
Position of the applicant in relation to those powers or duties, and
The breach alleged.
Name the 4 cases relating to group standing
1) Rose Theatre Trust
2) Greenpeace
3) World Development movement
4) Good Law Project
Was standing granted in Rose Theatre Trust Co? Why?
No.
As none of the individuals in the group had sufficient standing on their own, and individuals cannot band together to claim greater interest.
Was standing granted in Greenpeace? Why?
Yes.
2500 members lived in the area so all had sufficient standing both alone and as part of the group.
What were the 3 reasons standing was granted in the Greenpeace case?
Nature of the applicants
Interests in issues raised
Remedy sought to achieve and the nature of the relief sought.
What 6 reasons were given by the court in the World Development Movement case for granting standing?
Merits of the challenge
Importance of the rule of law
Importance of the issue raised
Absence of another responsible challenger
Nature of the breach of duty
Prominent role of applicants
What does the Good Law Project case establish about group standing for bodies set up to hold the government to account?
That no single body, even with a ‘sincere interest in public law issues’ can have standing in every judicial review case.
R (Cowl) v Plymouth City Council establishes…
If there is another remedy or route of redress possible, permission for judicial review will NOT be allowed.
What is the time limit to bring a judicial review claim? Source?
3 months from when the decision was made.
Part 54.5 Civil Procedure Rules.
Name 3 alternative remedies to judicial review
Tribunal
Appeal panel
Internal / mandatory review.
What are the 3 common law grounds of judicial review?
Illegality
Irrationality
Procedural impropriety
In which case were the 3 common law grounds of judicial review codified?
GCHQ (Lord Diplock)
What is simple ultra vires?
Where a public body has acted outside its powers.
Attorney General v Fulham Corporation establishes…
That a public body’s decision will be ultra vires where the body has not understood the powers delegated to them.
Which case reconciled the two separate heads of judicial review, errors of fact and errors of law?
Anisminic
What does R v Home Department ex p Khawaja establish?
Beliefs are insufficient and that facts must be established based on evidence.
What are the 4 elements of errors of fact as set out in E v Secretary of State for the Home Department?
Must be a mistake of existing fact / availability of evidence on a matter.
Fact or evidence must be ‘established’ so it is uncontentious and objectively verifiable.
Appellant or his advisors must not have been responsible for the mistake.
Mistake must play a material but not necessarily decisive part in the tribunals reasoning.
What are the 4 subdivisions of discretion?
Improper purpose
Relevant / irrelevant considerations
Wrongful delegation
Fettering discretion
Case concerning improper purpose?
Padfield
Case concerning irrelevant considerations?
R v Secretary of State for the Home Department ex parte Venables and Thompson.
R v SSHD ex p Venables and Thompson
Home Secretary’s taking of account of The Sun Newspaper petitions was an irrelevant consideration - it was the judge’s recommendation that should have been given weight to.
Case concerning wrongful delegation?
Barnard v National Dock Labour Board
What is the Carltona Principle?
Delegation of administrative functions from Ministers to Civil Servants is generally acceptable.
What is a policy that fetters discretion?
Application of a policy so rigid that it prevents proper consideration of merits.
What is set out under s.149 Equality Act 2010?
That public bodies must have ‘due regard’ to the public sector equality duty when making decisions.
Key case on fettering discretion?
British Oxygen Co Ltd v Minister for Technology
Name 2 reasons why the courts only act in a supervisory capacity when exercising judicial review?
1) Institutional capacity
2) Democratic legitimacy
Brackling v Secretary of State for Work and Pension establishes…
Evidence is required of engagement with the public sector equality duty to satisfy the s.149 requirement.
What did Lord Diplock define Wednesbury Unreasonableness as in GCHQ?
A decision is Wednesbury Unreasonable if it is:
‘so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’
Which case was held to be too political for the courts to decide in a judicial review hearing?
R (Dolan) v Secretary of State for Health and Social Care
What is the Super Wednesbury standard of judicial review?
Courts will be most reluctant to intervene where a decision relates to political or economic policies
Which Wednesbury Unreasonableness standard does R v Secretary of State for the Environment, ex parte Nottingham City Council relate to?
Super Wednesbury
What are the 3 standards of Wednesbury Unreasonableness?
1) Super Wednesbury
2) Wednesbury Unreasonableness
3) Anxious Scrutiny
Why has Anxious Scrutiny (Wednesbury) diminished in use, and which standard is now used instead?
Because of the Human Rights Act 1998 now dealing with human rights issues.
Standard now used = proportionality
What type of case does Anxious Scrutiny (Wednesbury) apply to?
Courts look more deeply at decisions concerning human rights infringements.
What are the subdivisions of procedural impropriety of a sub-ground of judicial review?
Procedural fairness
Natural justice
Rule against bias
Right to be heard
Statutory procedural protections can be…
Mandatory OR directory
What approach is used to determine procedural impropriety?
A sliding-scale approach
Is prior notice usually directory or mandatory? Case?
Mandatory
Bradbury v Enfield LBC
Is consultation usually mandatory or directory? Case?
Mandatory
Aylesbury Mushrooms
What 4 factors on the requirement of consultation does R v Brent LBC ex p Gunning set out?
1) Consultation must be made when proposals are at a formative stage
2) Reasons must be given for the proposal
3) Adequate time must be given to enable consideration and response
4) Result of consultation must be considered when making the decision
Aylesbury Mushroom case establishes that…
Where consultation is required, an attempt to consult is insufficient and ACTUAL consultation is required.
Natural justice relates to _____ fairness, not ____ fairness?
PROCEDURAL, not substantive, fairness
What are the 2 elements of natural justice?
1) Right to a fair hearing
2) Rule against bias
Is there a general right to be heard?
No, there is no general right to be heard. This is a sliding scale approach.
When would a person not expect to be granted the right to be heard?
Where the consequences of a lack of formal hearing are less serious, so no personal loss is suffered.
When would a person expect to be granted the right to be heard?
Where a decision has serious personal consequences, such as loss of liberty, home or livelihood.
What presumption is made about bias where the decision maker has a pecuniary interest in a decision?
An automatic presumption of bias is made.
What presumption is made about bias where the decision maker has a personal interest in a decision?
Not an automatic presumption of bias, but key question is whether the bias has been disclosed.
What does Dimes v Grand Junction Canal Properties establish?
That where there is a pecuniary interest in a decision, even the POTENTIAL for bias is sufficient.
Which case sets out the test for the rule against bias?
Porter v Magill
What is the test for the rule against bias?
Would a ‘fair minded and informed observer, having considered the facts, conclude that there was a real possibility that the tribunal was biased’.
What is expected of a decision maker where there is potential / appearance of a pecuniary interest in a decision?
That the decision-maker should remove himself from the case.
Oakley v South Cambridgeshire District Council establishes…
Court of Appeal held reasons should have been given: people should not be left in the dark as to the impacts of their representations to a public body, as this would undermine the requirement of consultation.
Is there a general duty on public bodies to provide reasons for their decision under the common law?
No - decided on case-by-case basis
What is the most important case on personal bias?
Pinochet - Lord Hoffman / Amnesty International case.
What does Ex parte Institute for Dental Surgery establish about when there will be a duty on a public body to provide reasons for their decision?
Based on circumstances, the court will decide if it is just / fair to require a decision-maker to provide reasons. Sedley LJ held there is no general duty to provide reasons UNLESS fairness demands them
R v Secretary of State for the Home Department ex parte Doody establishes…
Court held that without reasons for denial of parole, prisoners could not work towards release, so there was a duty on the parole board to provide reasons for their decision.
Name the 2 types of legitimate expectation?
1) Procedural legitimate expectation
2) Substantive legitimate expectation
What is a procedural legitimate expectation?
An applicant has an expectation that a certain PROCESS was followed when a decision was made, where a public body has assured a decision will follow a certain procedure.
What is a substantive legitimate expectation?
An applicant has an expectation that a certain RESULT will be come to / expectation as to the OUTCOME of a decision.
Does R v North and East Devon Health Authority ex parte Coughlan relate to a procedural or substantive legitimate expectation?
Substantive legitimate expectation
R v North and East Devon Health Authority ex parte Coughlan established…
Coughlan - resident of a care home - being promised a ‘home for life’ meant when the Health Authority tried to re-home her, she could rely on substantive legitimate expectation promised to her that she could remain at her home.
What is a prohibiting order?
Court will stop the public body from doing something - e.g. prohibiting deportation of an asylum seeker.
Are substantive legitimate expectations easy to establish?
No - it is almost impossible to satisfy a substantive legitimate expectation.
Would the decision in Coughlan have been different - based on the 3 considerations the courts must make in establishing whether a substantive legitimate expectation exists - if the care home was in disrepair?
Yes. It is likely that it would have been in the public interest to relocate Coughlan.
What are the 3 factors the court must consider when assessing whether an applicant has a substantive legitimate expectation?
1) Must be a promise made to a specific individual or defined class of people.
2) Of great importance to the individual
3) Court must balance fulfilling the promise and the public interest
What is a quashing order?
Aims to place an applicant back in the position they would have been in had the decision not been taken.
Name the 6 judicial review remedies
1) Quashing order
2) Mandatory order
3) Prohibiting order
4) Declaration / declaratory order
5) Injunction
6) Damages
What is a mandatory order?
Mandates specific action to be taken.
What is a declaratory order?
Case?
It formally declares the legal position between the two parties.
Dolan
Give an example of a prohibiting order?
Court preventing the public body from relocating Coughlan from her care home.
What is an injunction?
Prevents the defendant authority from taking specific action, i.e. in planning or eviction cases.
In which type of case is an injunction an appropriate remedy?
Planning / eviction cases
When can damages be awarded for a judicial review claim?
Applicant cannot seek damages as their sole remedy: they must be alongside another remedy.
How commonly are damages awarded in judicial review claims?
Rarely
Name the 6 preliminary requirements for establishing standing in judicial review cases.
1) Leave from a judge that there is an arguable case
2) Likelihood of a substantially different outcome
3) Sufficient interest
5) Time limit
6) Exhausted all other remedies
Case on relevant / irrelevant considerations
Wheeler v Leicester City Council
Name the 2 key cases on simple ultra vires
AG v Fulham Corporation
Bancoult
Name the 2 key cases on improper purpose
Padfield v Minister for Agriculture
Porter v Magill
Name the 2 key cases on wrongful delegation
Carltona
Barnard v National Dock Labour Board
Name the 2 key cases on fettering discretion
Ex parte Kynock
British Oxygen Co Ltd v Minister for Technology
Name 2 key cases on the duty to give reasons
Doody
Ex p Fayed
Name the key case on errors of law or fact
Anisminic
Name the 2 key cases on irrationality
Wednesbury
GCHQ
Name the key case on the right to be heard
Ridge v Baldwin
Name the key case on the rule against PECUNIARY bias
Dimes
Name the key case setting out the test for the rule against PERSONAL bias
Porter v Magill
Name the key case on procedural legitimate expectations
AG for Hong Kong v Bg Yuen Shiu
Name the key case on substantive legitimate expectations
Coughlan
s.85 Criminal Justice and Courts Act 2015
Amends s.31 Senior Courts Act 1981:
JR standing requires likelihood of a substantially different outcome.
Effect of a public body’s decision being held ultra vires?
Decision will be unlawful and void.
Name the 3 cases relating to fettered discretion…
Ex Parte Kynoch Ltd (1919)
British Oxygen Co v Board of Trade (1971)
North West Lancashire Health Authority v A, D and G (1999)
s.107 Government of Wales Act 2006 (as amended)
Sets out the RESERVED powers model for Wales
