Judicial Review Flashcards
Jewell of Judicial Review
Practical implementation of the RoL, taking place primarily through the review of the actions of decision makers - allowing the individual to have courts review how government is acting within the framework of powers given to it by Parliament to ensure it is not acting arbitrarily or ultra vires
Extension of JR to administrative actions
links JR to more substantive ideas of RoL –> not form of appeal (decision itself) but review of the decision making process itself
The 6 preliminary requirements for JR
1) Amenability
2) Time Limits
3) Procedural Exclusivity
4) Standing
5) Exhaustion of alternative remedies
6) Ouster Clauses
Particular grounds of review
Substantive grounds: Illegality, unreasonableness
Procedural grounds: procedural impropriety
Legitimate expectation
1) Amenability
JR applies only to public bodies
Ex parte Datafin
The courts will focus on the nature of the action rather than simply on the identity of the body or the source of its power - this includes bodies that exercise a public function even if they aren’t publicly funded/overseen
=> this includes bodies like the Bar Council (er parte Percival)
Ex parte Aga Khan
The Datafin principle was considered - the Jockey Club was a controller of a significant national activity affecting the public interest, had a monopoly of power
HOWEVER: the court ruled that “neither in its framework nor its rules nor its functions” did it fulfils a government role
Bodies excluded from JR
Bodies that derive their power from the voluntary submission of the parties: sporting bodies, religious bodies
Ex parte Football League
Sporting bodies (such as the FA) are excluded from JR because parties submit voluntarily to their “jurisdiction”
Ex parte Wachmann
Religious bodies are excluded from JR (voluntary submission)
Care Homes - Issues
In practice “governmental” means looking for a statutory relationship of power:
Ex parte Goldsmith
R(A) v Partnerships in Care
Ex parte Goldsmith
Local authorities are under a statutory obligation to make arrangements to provide accommodation, not to themselves provide accommodation –> these arrangements are a matter of private law with a body that does not owe its existence to statute, not enough “statutory penetration” - merely a contractual relationship of private law
R(A) v Partnerships in Care
Here, the private care provider was actually regulated by statute (Mental Health Acts) and there was public interest in ensuring that mental patients were properly cared for –> provider’s decisions in this respect were subject to JR
2) Time Limits for JR applications
Civil Procedure Rules 54.5(1)(b):
claims must be brought promptly and in any case within 3 months - if it could have been brought more promptly, it might not be allowed (Lam v UK)
Lam v UK
ECtHR confirmed that imposing the promptness requirement does not violate Art 6 ECHR
Civil Procedure Rules 3.1(2)(a)
The court may extend the time limit if there is good reason - these must be exceptional though (Ex parte Carswell)
R (Buglife) v Natural England
Where JR involves the enforcement of an EU directive, there is no need for promptness but the ultimate 3 months deadline still applies
Wandsworth LBC v Winder
It is possible to bring public law in as a defence, even after the time limit has expired
3) The Exclusivity Principle
O’Reilly v Mackman (Lord Diplock)
O’Reilly v Mackman
Public Law decisions should be challenged by an application for JR and private law matters by an ordinary action, otherwise there is an abuse of process
Case law challenging procedural exclusivity
Roy v Kensington and Chelsea Family Practitioner Committee
Boddington v British Transport Police
Clark v University of Lincolnshire and Humberside
Roy v Kensington and Chelsea Family Practitioner Committee
Dispute over payment for contract work was brought as private claim. Roy was employed as an NHS GP but also conducted private work - D had withheld some of his pay
–>
Where a case involves both, private and public law, it is acceptable for the aggrieved party to bring an ordinary action - no requirement to do so by way of JR
Clark v University of Lincolnshire and Humberside
Clark, a university student, attempted to sue for breach of contract after she was awarded 0% due to plagiarism
–>
She was able to pursue her claim in contract even though it also concerned public law: held that since the courts have inherent power to sanction parties abusing the court’s process, there is no need to prevent a mixed case being brought
4) Standing
Senior Courts Act 1981, s. 31(3)
Civil Procedure Rules 54
“the court shall not grant permission unless it considers that the applicant has sufficient interest in the matter to which the application relates”
–> single form of proceedings for JR in which all remedies were to be available and same rules of standing apply to all remedies under Order 53