JUDICIAL Review Flashcards
WHAT IS JUDICIAL REVIEW
- Judicial review is the method by which the courts can review and scrutinise the actions of the **executive.
- The courts exercise a supervisory jurisdiction, which means that generally, the courts are not concerned about the merits of a decision, but rather its** legality**.
There are essentially three main concerns regarding judicial
review
(1) Whether the application for judicial review meets** the requirements for
a successful application**;
(2) Whether one of the grounds of judicial review has been established; and
(3) What is the appropriate remedy?
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REQUIREMENTS FOR JUDICIAL REVIEW
- Claim Must Be Against a Public Body
- Existence of a Contract
- Has Correct Procedure Been Used?
- Grounds for Refusal—Claimant’s Outcome Would Not Change Substantially
- Time Limits—Promptly, But No Later than Three Months
- Procedural Exclusivity
- Are Issues Involved Reviewable?
- Judicial Review Cannot Resolve Factual Disputes
- Does Claimant Have Standing
- Judicial Review Should Be Last Resort
Claim Must Be Against a Public Body
Judicial review is available only against decisions made by ‘public bodies’. Usually, the matter is obvious. Examples of public bodies include:
*Secretaries of State and government departments;
*Local government, including councils; and
*Agencies set up by government by statute or under the royal prerogative.
Existence of a Contract
If a contract exists between the parties, then the courts will determine that the matter is** regulated by private** and not public law, and so should not be resolved by using judicial review.
Has Correct Procedure Been Used?
a.Judicial Review Pre-Action Protocol
b.Permission Stage
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Judicial Review Pre-Action Protocol
- The judicial review pre-action protocol contains good practice that the parties should follow before starting litigation.
- Before the action is commenced, the claimant should send a letter to the potential defendant identifying the issues in dispute.
- The defendant should respond within** 14 days.**
Permission Stage
Judicial review has two stages.
1. The first stage is the permission stage.
The claimant applies to the court for permission to continue the claim for judicial review. Usually, the permission stage is decided on the papers making the application and the defendant’s response, although the judge may choose to hold a hearing if the matter is more complex. If the claim is re-fused, the case proceeds no further. If permission is granted,then the matter goes to the second stage—
2. a full hearing.
Grounds for Refusal—Claimant’s Outcome Would Not Change Substantially
The court has discretion to refuse permission if they believe that, even if the judicial review claim is successful, it is highly likely that the outcome for the claimant would not be sub-stantially diferent.
Time Limits—Promptly, But No Later than
Three Months
The claim must be brought promptly but no later than three
months after the issue arose. This could be three months
from when the decision being challenged was communicated to the claimant.
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Procedural Exclusivity
- Judicial review is available only for public law issues.
- The principle of procedural exclusivity means that** public law issues must be brought via judicial review** rather than through the ordinary procedures available in private law.
- Matters of Mixed Public and Private Law
As an exception to the procedural exclusivity rule, cases involving issues of both public law and private law can be resolved in private law.
Judicial Review Cannot Resolve Factual
Disputes
The judicial review procedure is not the appropriate place to
resolve disputes of facts. Consequently, if the matter involves factual rather than legal disputes, the matter is best resolved by the ordinary courts.
EXAMPLE
A council refuses to pay for building repairs on the basis
that the work was not completed to a satisfactory standard. The builder seeks a judicial review. The disputes relate
primarily to whether the repairs have been completed to
the necessary standard, which is a question of fact, and so
should be dealt with via the ordinary courts.
Does Claimant Have Standing?
- To bring a judicial review claim, the claimant is required to have a** sufficient interest** in the issues the case raises. This is referred to as having** the standing **to bring the claim.
- The court reviews standing at the permission stage. If the claim-
ant clearly does not have a sufficient interest, the court will reject the case.
Note: If the position regarding standing is not obvious, then it should be considered at the full hearing, as this allows a decision on standing to be made with a full knowledge of the legal and factual issues of the case.
a.Groups or Associations
Usually, a group of people who individually lack standing to bring a claim do not acquire standing by forming an association or group. However, more recently, if the association is responsible, well resourced, has expertise, and/or there is unlikely to be an alternative claimant, then the association is likely to be deemed to have a sufcient interest.
Exam Tip
The Human Rights Act allows individuals to bring actions against public authorities for a breach of their human rights. As will be discussed, the test for standing to bring such an action is** the victim test,** which is more limited than the test discussed above. It is important to remember the diferent tests and when they apply.
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The main element of judicial review is the grounds for review:
- **illegality,
- procedural impropriety,
- unreasonableness, and
- a breach of legitimate expectation**s. The claimant must establish one of these grounds for the claim to be successful.
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ILLEGALITY
illegality requires that the decision maker or public body understands correctly the law that regulates their decision-making power and gives effect to it.
- error of law
- specific legal duty
- unlawful delegation of power
- irrelevant considerations
- ultra vires