Judicial Review Flashcards
What can judicial review do?
Rules upon the lawfulness of a decision. Reviews the decisions of public bodies whom in question have acted either; illegally, unlawfully or unfairly.
How many stages are there to judicial review?
two
What happened in the case of Sir Thomas Bingham MR, R v Cambridge Health Authority?
11 year old had cancer but was declined treatment as wouldn’t be funded. Not resulted in judges decision but judge can look as to whether decision was made in the correct way.
What is the main principle to consider of judicial review?
Judges should not make policy choices. They aim to be a referee - R v Secretary of State for the Environment ex parte Hammersmith and Fulham LBC
When is it acceptable for an individual to apply for judicial review?
Judicial review is for constitutional law cases
Civil actions are for contract disputes
What was held in the case of Clark v University of Lincolnshire and Humberside?
Student lost essay so copied book - must use judicial review to challenge public body
Can a defendant use public law arguments
If they are sued in a civil court: Wandsworth LBC v Winder [1985] AC 461
- not in criminal
How to get permission for judicial review?
(1) Did the decision involve a public function?
(2) Does the claimant have a sufficient interest?
(3) Has the claim been excluded by:-
an ouster clause or stricter time limit
non-justiciability
the ‘same outcome’ test?
Did the decision involve a public function?
R v Panel on Take-overs and Mergers ex parte Datafin - more than one way to be a public body.
Telling an above organisation of gov/agencies more likely to be a public body
What was held in R. v Disciplinary Committee of the Jockey Club Ex p. Aga Khan?
The Jockey Club’s powers were based on agreement, not statute. It was not:
In its origin, history, constitution or membership a public body
Part of a system of government control
What was held in R v Chief Rabbi ex parte Wachmann [1993] 2 All ER 249?
If the organisation did not exist, would the government have to invent it?
Does the claimant have a sufficient interest? National Federation of Self-Employed and Small Businesses (Fleet Street Casuals case) [1982] AC 617
The Act
The evidence
The seriousness of the conduct
On what grounds can the claim be excluded by?
The time limit?
An ouster clause?
Non-justiciability?
The ‘same outcome’ rule?
What are they key considerations of a time limit?
- No later than three months
- Failure to comply with CPR Rule 54.5 is ‘undue delay’: Caswell v Dairy Produce Quota Tribunal [1990] 2 All ER 434
On what grounds can the time limit be extended by?
(1) Reasonable excuse for applying late?
(2) Damage to third party rights or harm to good administration if permission were granted?
(3) Does the public interest require the judicial review claim to go forward?
R v Secretary of State for Trade and Industry ex parte Greenpeace [1998] Env LR 415
What is an ouster clause?
Section in act of parliament which instructs the court to not interfere. This will take place in the Commission stage.
“the determination of the Commission…shall not be called into question in any court of law” Anisminic v Foreign Compensation Commission [1969] 2 AC 147
Can an ouster clause ever work? R v Investigatory Powers Tribunal [2017] EWCA Civ 1868
determinations, awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court
Challenging orders can vary in time and can give a stricter time limit.
R v Secretary of State for the Environment, ex parte Ostler [1976] 3 All ER 90
Hillingdon LBC v Secretary of State for Transport [2017] EWHC 121 (Admin)
Non - justiciable decisions
Council of Civil Service Unions v Minister for the Civil Service (the GCHQ case) [1985] AC 374
Harrow Community Support Trust v Secretary of State for Defence [2012] EWHC 1921 (Admin), the Olympic missile system case
- denied justicial review as were not consulted
What is held by the same outcome rule?
if it is “highly likely” that the same outcome would have happened but for unlawful government action, then:
the court “must refuse to grant relief”
unless the case involves “exceptional public interest
