Judicial Review

Question 1

What are the five main preliminary issues that need to be discussed before allowing a judicial review?

Answer 1

1. Standing
2. Timing
3. Amenability
4. Procedural Exclusivity
5. Ouster Clauses

Question 2

What does s31(3) Senior Courts Act 1981 say about when an applicant has standing?

Answer 2

An applicant has standing when they have ‘sufficient interest’ in the matter of the application

Question 3

What is the two-stage process applied to determine whether an applicant has standing?

Answer 3

1. The ‘permission’ stage where the courts will check whether the applicant has prima facie case and look at the applicant’s relationship to it.
2. If the respondent feels there is not sufficient interest the courts will consider in more detail whether the applicant can show a strong enough case on the merits and will take into account proximity.

Question 4

How may we summarise Lord Scarman’s judgment on the issue of standing in Fleet Street Casuals?

Answer 4

1. Their must be some logical connection between the claim and the claimant;
2. There must be a prima facie case;
3. The court will exclude busybodies, cranks and mischief-makers.

Question 5

The facts of the Fleet Street Casuals case may aid us in understanding why the National Federation of Self-Employed and Small Businesses didn’t have standing. What are they?

Answer 5

The IRC agreed a tax amnesty with 6,000 casual print workers. The IRC agreed to take tax for the 1977-78 and not chase up on previous years. The National Federation sought a judicial review in order to obtain the same amnesty. It was held the amnesty did not need apply to them. It was an agreement solely between the IRC and the casual workers. Therefore they did not have standing.

Question 6

Fleet Street Casuals is regarded as recommending a wide approach to determining whether an applicant has standing. Which case gave a more restricted view?

Answer 6

Rose Theatre Trust

Question 7

What was the Rose Theatre Trust?

Answer 7

A campaigning group set up to salvage the Rose Theatre, discovered during a construction project.

Question 8

Why did Schiemann J not grant the Rose Theatre Trust standing?

Answer 8

He said standing would be granted to an individual who has an express or implied right or expectation above any other citizen, and would not be granted to anyone at all. None of the members had a right or expectation over and above a normal citizen’s and forming a group, he said, did not create one.

Question 9

Has Schiemann J’s judgment in Rose Theatre Trust been followed?

Answer 9

No (Greenpeace Ltd (No 2) and World Development Movement).

Question 10

What factors were taking into account when granting Greenpeace standing?

Answer 10

1. Their expertise and concern for the environment
2. Their 2,500 supporters in the local area which the claim concerned and who may not have had the ability to bring a claim on their own;
3. The charity’s national and international status.

Question 11

What decision did WDM seek a judicial review over?

Answer 11

The Foreign Secretary’s decision to subsidise the Pergau Dam in Malaysia.

Question 12

What factors were taken into account when granting standing to WDM?

Answer 12

1. The likely absence of any responsible challenger;
2. Their expertise;
3. The importance of vindicating the rule of law;
4. The nature of the breach and the duty against which relief was sought.

Question 13

How did WDM broaden standing?

Answer 13

It demonstrates that standing may be granted to an international group if there is no other potential applicant.

Question 14

Which case demonstrates that it is possible to get automatic standing?

Answer 14

Equal Opportunities Commission v SS for Employment (the matter concerned sex discrimination).

Question 15

What criticisms are there of the judgment in Rose Theatre Trust?

Answer 15

1. The timing element and ouster clauses of judicial review serve to remove the possibility of an endless number of claims on public authorities;
2. The fact that a group had come together increased the likelihood of a serious and non-partisan claim.

Question 16

Why was standing granted in R v SS for Foreign and Commonwealth Affairs ex p Rees-Mogg?

Answer 16

Because the applicant had ‘sincere concern for constitutional issues’ demonstrated by his writing on EU membership.

Question 17

In which case did Sedley J explicitly disagree with the judgment given in Rose Theatre Trust that a person should not be granted standing unless they have an interest over and above other citizens?

Answer 17

R v Somerset County Council ex p Dixon

Question 18

Which case demonstrates that a person with a genuine concern will not always have sufficient interest?

Answer 18

R v SSHD ex p Bulger

Question 19

What was the claim in R v SSHD ex p Bulger?

Answer 19

The deceased’s father was challenging the lowering of Venables’ and Thompson’s prison sentence

Question 20

Why was standing not given in R v SSHD ex p Bulger?

Answer 20

The claim was brought by Bulger’s father. It was decided in criminal cases that the only parties with sufficient interest were the Crown and the defendants.

Question 21

Where do we find the rule on timing for bringing a judicial review?

Answer 21

Civil Procedure Rules part 54.5(1)

Question 22

What is the rule on timing for judicial review?

Answer 22

‘a claim must be filed promptly and no later than 3 months’ from the incident

Question 23

May a claim be rejected if it is brought within 3 months?

Answer 23

Yes, if the claim could have been submitted more expediently.

Question 24

What does CPR 54.5(2) add?

Answer 24

The parties cannot agree to extend the time limit for a judicial review claim.

Question 25

May the court grant an extension for a judicial review claim beyond the three month time limit?

Answer 25

Yes (CPR part 3.1(2)(a))

Question 26

What does s31(6) Senior Courts Act 1981 add to the element of timing in judicial review?

Answer 26

The court have the discretion to refuse judicial review where there is undue delay and granting an extension would cause substantial hardship or be detrimental to good administration.

Question 27

In which ECtHR case did the timing for judicial review claims receive confirmation that it was a proportionate in securing a legitimate aim?

Answer 27

Lam v UK

Question 28

What is the general rule of amenability?

Answer 28

Only public law decisions made by a public body are open to judicial review.

Question 29

Since which case have prerogative powers been amenable to judicial review?

Answer 29

GCHQ

Question 30

How did the case of R v Panel of Take-overs and Mergers ex p Datafin extend the general rule on amenability for judicial review?

Answer 30

Even if a body is not a public authority, if it is exercising a public law function or the exercise of its functions have public law consequences it will be amenable to judicial review (per Lloyd LJ).

Question 31

What provision has confirmed the ruling in Datafin?

Answer 31

Civil Procedure Rules Part 54.1(2)(a)((ii)

Question 32

In which two cases was it surmised that had the regulatory authorities been independent they would still have been amenable to judicial review?

Answer 32

1. R v Advertising Standards Authority Ltd ex p Insurance Services plc;
2. R v Bar Council ex p Percival

Question 33

What types of regulatory authorities might not be amenable?

Answer 33

1. Sporting regulatory bodies (R v Football Association ex p Football League and R v Disciplinary Committee of the Jockey Club ex p Aga Khan)
2. Religious bodies (ex p Wachmann)
3. Contracted-out services eg residential accommodation for elderly (ex p Goldsmith)
4. Private care homes (YL v Birmingham CC)

Question 34

How may we distinguish Datafin from the Jockey Club?

Answer 34

The Jockey Club although exercising a public function was said not to be governmental (per Lord Bingham MR).

Question 35

Why did the applicant seek a judicial review in R v Chief Rabbi of the United Hebrew Congregation of GB and Commonwealth ex p Wachmann? Why did the court not allow a judicial review?

Answer 35

Wachmann had been dismissed from his job as a Rabbi. The court did not believe internal religious matters were amenable to judicial review.

Question 36

How may we distinguish ex p Goldsmith and Partnerships in Care?

Answer 36

In both cases the defendants were care homes. In Goldsmith the care home cared for the elderly and was not considered amenable to judicial review. In contrast, Partnerships in Care had changed one of its wards, offering psychotherapeutic services ie public function.