Judicial Review

Question 1

Definition of Judicial Review

Answer 1

JR is the mechanism by which the courts ensure that public bodies act within the powers that they have been granted and do not exceed or abuse those powers.

A court which judicially reviews the actions of a public body is not concerned with the merits of that body’s decision. Judicial review involves the courts making sure the public bodies make decisions in the right way.

Question 2

Can they make a claim? (6 issues)

Answer 2

1. Does the claimant’s claim raise public law issues?
2. Are they a public body? Datafin
3. Do they have sufficient interest?
4. Time limits
5. Ouster Clause
6. Is there an adequate statutory remedy available?

Question 3

In order to seek judicial review of a decision there must be a….. carrying out a …..

Answer 3

In order to seek judicial of a dec, there must be a public body carrying out a public function.

Question 4

What is the Datafin test?

Answer 4

Claimants can seek judicial review only of decisions made by public bodies. Decisions of private bodies must be challenged under private law proceedings.

The datafin test has two strands.

Source of power test – if the body making a decision has been set up under statute or under delegated legislation, or derives its power under a reviewable prerogative power, then it is a public body.

If this part of the test is not satisfied then the court goes on to apply the second part.

Nature of power test – if the body making the decision is exercising public law functions, it may still be a public body.

Question 5

Which statute requires claimants to have ‘sufficient interest’ in the matter to which a claim relates?

Answer 5

s 31 (3) of the Senior Courts Act 1981.

The courts will deem a claim to have standing to bring a judicial review claim only if the claimant has ‘sufficient interest in the matter to which a claim relates’ as required by s 31 (3) of the Senior Courts Act 1981.

Question 6

What factors have to be taken into account when assessing whether a pressure group has sufficient standing?

Answer 6

Factors that would be taken into account (as outlined by the Divisional Court when ruling on WDM) include;

1. The need to uphold the rule of law
2. The importance of the issue raised
3. The likely absence of any other responsible challenge
4. The nature of the alleged breach of duty
5. The role of the pressure group.

Question 7

Time Limits; What does Section 31 (6) of the Senior Courts Act 1981 allow a court to do?

Answer 7

Section 31 (6) of the Senior Courts Act 1981 allows a court to refuse a claim where it feels there has been ‘undue delay’ even if the claim is brought within 3 months of the relevant decision having been made.

Question 8

Time Limits; What does Civil Procedures Rules, r 54.5 stipulate?

Answer 8

CPR, r 54.5 requires that a claim form must be filled in promptly and in any case within a max of 3 months after the ground to make the claim first arose, less in planning and procurement cases.

Question 9

Time Limits: Can the courts extend the time limit?

Answer 9

Courts can reserve a discretion to extend time limit but only for good reason (Jackson).

Even if permission was granted and the case proceeded to a full hearing, a remedy could be refused if the application had been made outside the 3 month time limit (Caswell).

Question 10

Is the court’s jurisdiction affected by an ‘ouster’ clause

Answer 10

Full ouster clauses will not protect decisions that were never legally valid. (Anisminic)
Partial ousters - However, the courts are quite happy with partial ousters that give a shorter time limit, as they like claimants to act promptly (ex p Ostler).

Unlike time limits, the courts have no discretion to grant an extension even if there are good reasons for the delay (Ostler)

Question 11

What is an ouster clause?

Answer 11

Ouster clauses are inserted by Parliament into such Acts where it wishes to exclude any right of challenge once a decision has been made by a public body.

Question 12

What is the effect of an adequate statutory remedy?

Answer 12

The provision of an adequate statutory remedy for an aggrieved party, such as the right of appeal, may impliedly oust the courts’ judicial review jurisdiction.

Question 13

What are the domestic grounds of judicial review?

Answer 13

Illegality, Irrationality and Procedural Impropriety

Question 14

What are the European grounds of judicial review

Answer 14

Breach of ECHR and breach of EU law

Question 15

What are the substantive grounds of judicial review?

Answer 15

Illegality and Irrationality as they focus on the ‘substance’ of the decision under review.

Question 16

What are the procedural grounds of judicial review?

Answer 16

Procedural impropriety as it focuses on the procedure followed in arriving at the decision under review.

Question 17

What is the definition of illegality (sometimes known as substantive ultra vires)?

Answer 17

Illegality is where an action is illegal or ultra vires if it is beyond the powers of a public body in question
either

because the powers claimed do not exist

or because they are exceeded or abused in some way.

Question 18

What are the Heads of Illegality? (7)

Answer 18

1. Acting without legal authority (McCarthy and Stone Developments Ltd)
2. Wrongful delegation – Vine, Carltona Principle, Local Govt Act 1972 s101
3. Fettering of discretion
   - Acting on the dictation of another (Lavender),
   - Applying a general policy as to the exercise of discretion in too strict a manner (British Oxygen)
4. Using powers for an improper or unauthorised purpose
   - Improper Purpose (Congreve)
   - Dual Purpose (Westminster Corp v LNWR - ‘primary purpose test’) R v ILEA the unauthorised purpose must not have materially influenced the overall decision.
5. Relevant/irrelevant considerations (Roberts v Hopwood or Padfield)
6. Error of Law (Anisminic - has the wording in the Act been misinterpreted)
7. Error of fact -
   Is there some test which must be satisfied before a power can be exercised/duty arises? i.e. ‘jurisdictional’ Is there a dispute over the facts governing the outcome of this test? (Khawaja)

Question 19

What does acting without legal authority mean?

Answer 19

Acting without a relevant power.

Decisions made are ultra vires because the lack of a relevant power (McCarthy and Stone)

Question 20

What is the rule against delegation?

Answer 20

There is a general rule that decision-making powers, once given by Parliament cannot then be further delegated or ‘sub-delegated’. (Vine)

Question 21

What is the Carltona principle?

Answer 21

Government Ministers sub delegating decision making powers to civil servants in their depts provides an exception to the general rule against delegation.

Question 22

What are the exceptions to the Carltona principle?

Answer 22

a) It was clear from the wording of the statute that the decision was one for the Minister alone or
b) The decision was a crucial one with serious consequences and placing a duty on the individual Minister to take a decision would not place an excessive burden on them.
(R v Adams)

Question 23

Other than the Carltona Principle, what is the other exception to the rule against delegation?

Answer 23

Local Government Act 1972 s 101

Under s 101 local authorities may delegate decision making powers to committees (or to an individual officer), provided they make a formal resolution to do so.

Question 24

What does ‘fettering’ of discretion mean?

Answer 24

As a general principle, if Parliament provides a public body with a discretionary power, the courts will not permit that body to restrict or ‘fetter’ such discretion.

Question 25

What are the two ways in which a public body may ‘fetter’ its discretion?

Answer 25

a) Acting under the dictation of another (Lavender) or

b) Applying a general policy as to the exercise of discretion in too strict a manner (British Oxygen)

Question 26

What is an improper purpose?

Answer 26

Using a power without the authority to do so or in a way not provided for by Parliament.

Question 27

What if the decision maker arrives at a decision based on more than one consideration?

Answer 27

Where there are dual purposes behind a decision, provided the permitted/authorised purpose is the primary purpose, then the decision is not ultra vires and should stand.

H of L established the ‘primary purpose’ test in case of Westminster Corp v LNWR.

The unauthorised purpose must not have materially influenced the overall decision. In R v ILEA ex p Westminster City Council 1986.

Question 28

What is an example of taking into account an irrelevant consideration and ignoring a relevant one?

Answer 28

Roberts v Hopwood 1925 – Poplar Borough Council had exercised its power under statute to pay is employees wages as it saw fit. Set a generous min wage and applied it to female workers in the same way as male workers. District Auditor order the Council to make good the financial losses incurred by doing this. Council sought JR. H of L found for District Auditor because Council had taken into account irrelevant considerations i.e. ‘social philanthropy’ and ‘feminist ambition’ and also because the Council had disregarded relevant considerations, namely the wage levels in the labour market and the burden which would be placed on ratepayers.

Question 29

When might an error of law occur?

Answer 29

It may occur if the wording in the Act is misinterpreted by the decision maker. (Anisminic).

Any error of law will make a decision unlawful.

Question 30

What does an error of fact depend on?

Answer 30

Errors of fact depend on evidence.

Errors which mean that the public body has no power or jurisdiction to take the decision, will make a decision unlawful.

Khawaja) Khera had not tried to hide his entry into the UK and was not in UK illegally. This was an example of a jurisdictional error of fact.

Question 31

What are the tests for irrationality?

Answer 31

Wednesbury principle – Is the decision challenged ‘so unreasonable that no reasonable authority could ever have come to it.’

Or (CCSU) ‘so outrageous in its defiance of logic, or accepted moral standards, that no sensible person could have arrived at it.

Question 32

What are the Heads of Procedural Impropriety?

Answer 32

Procedural ultra vires
- statutory procedural requirements either mandatory or directory
Procedural fairness or natural justice
- the rule against bias
- the right to a fair hearing

Question 33

What is Procedural Ultra Vires?

Answer 33

If the statutory procedural requirements sometimes placed upon decision makers is not followed, the decision may be challenged on the grounds that it is ultra vires.

These statutory requirements may be in the wording of the enabling Acts of Plt which give the decision makers their powers

These stat procedural requirements have been classified as either ‘mandatory’ or ‘directory’.

Question 34

What would happen to a decision if a mandatory statutory procedural requirement was not followed by the decision maker?

Answer 34

Failure to comply with a mandatory requirement renders the decision invalid on grounds of procedural ultra vires (Bradbury v Enfield).

Failure to comply with a directory requirement does not (Coney v Choyce).

Whether or not a claimant is substantially prejudiced by non compliance with an important procedural safeguard is a factor for the courts to take into account in determining whether a statutory requirement is mandatory or merely directory.

Question 35

What is the relevance of Soneji?

Answer 35

Lord Steyn said courts should consider the consequences of non compliance with a statutory procedure.

Would Parliament have intended the consequence of non compliance with the relevant statutory requirement to invalidate the decision that had been taken?

The question for the court is whether it had been the intention of Parliament that failure to comply with the procedural requirement would render the decision unlawful.

Question 36

What are the two strands of procedural fairness or rules of natural justice?

Answer 36

1. Rule against bias

2. Right to a fair hearing

Question 37

What does the application of the rule of bias depend upon?

Answer 37

The application of the rule against bias depends on whether the interest the decision maker has in the outcome of the decision is ‘direct’ or ‘indirect’.

Direct financial or proprietry interest (Dimes v Grand Junction Canal Proprietors).

(Pinochet) extended direct interest to non pecuniary interest.

If direct, it will lead to an automatic disqualification of the decision-maker.

Question 38

What is the test that should be applied in cases of indirect bias?

Answer 38

The H of L said the following test should be applied (Porter v Magill)

Would a fair minded and impartial observer conclude that there had been a real possibility of bias?

NB - It is never necessary to show actual bias.

Question 39

What does a right to a fair hearing entitle a citizen to (Rice)?

Answer 39

In Board of Education v Rice, Lord Loreburn stated that there is a duty on decision makers to act in good faith and listen fairly to both sides.

It will depend on the context of each individual case.

It is a common law rule of natural justice.

Question 40

What are the three categories of claimant established in McInnes v Onslow-Fane?

Answer 40

A key determining factor applied by the courts in deciding whether a hearing has been fair is the question of how much the claimant had to lose.

1. Forfeiture
2. Legitimate expectation
3. Application cases.

Question 41

What is a forfeiture case?

Answer 41

These involve the claimant having been deprived of something he previously enjoyed.

Cases where the claimant has the most to lose such as livelihood are forfeiture.

The claimant is entitled to expect a lot more from their hearing including

• right to oral hearing and
• to be given notice of case against him and
• the opportunity to refute evidence brought against him prior to any decicion being taken. (Ridge v Baldwin)

Question 42

What is a legitimate expectation case?

Answer 42

Cases where the claimant seeks the renewal or confirmation of some licence or membership or office which he previously held is a legitimate expectation case

as it was legitimate for the claimant to expect that an established practice would continue.

Also includes seeking renewal of some form of payment (benefit).

Question 43

What is an application case?

Answer 43

Application cases - First time applicant who merely seeks a licence etc which he has not held previously. McInnes shows that as a general rule, applicants are merely entitled to have their cases heard honestly and without bias.

Question 44

What are the two types of legitimate expectation cases?

Answer 44

Procedural and substantive

Question 45

What is a procedural legitimate expectation case?

Answer 45

A procedural legit exp case is one in which the dec maker failed to follow a normal procedure.

May arise out of a benefit or advantage the claimant enjoyed in the past; for example, an existing licence-holder who is applying for the renewal of a licence has a legitimate expectation that the licence will be renewed.

It may also arise where a public body has given an assurance that it will follow a certain procedure before taking a decision. (Liverpool Taxis)

Question 46

What is a substantive legitimate expectation case?

Answer 46

A substantive legitimate expectation case is one where a decision maker has led someone to believe that he or she would receive a benefit.

Or as created an expectation it will grant a substantive right eg by past practice or adopting a policy eg that it will always pay a grant provided that certain criteria are fulfilled.

(Coughlan).

In Coughlan, Lord Woolf CJ analysed the court’s role when considering a challenge under legitimate expectation. There were at least three possible outcomes:

1. Public Authority only needs to bear in mind its previous policy/representation. The court’s role is to simply review whether a decision is rational.
2. Promise/practice creates legitimate expectation of… e.g being consulted before an adverse decision is taken.
3. Promise/practice creates legitimate expectation of a substantive benefit. Courts will decide whether it would be an abuse of power to frustrate (illegality).

Here, the court is deciding whether it would amount to an abuse of power to allow the decision-maker to depart from a promise. This type of legitimate expectation (found in Coughlan) is likely to be exceptional. Public bodies will not normally be legally bound to maintain a policy which they have reasonably decided to change.
In Niazi, stressed that this would only arise where public body had made a specific undertaking directed at a partic indiv or group.

Question 47

What is the exception to the right to a fair hearing?

Answer 47

When a decision has been made that is merely preliminary (Lewis v Heffer).

Question 48

What is the exception to the rules of natural justice around delegated legislation?

Answer 48

The rules of natural justice do not apply where the decision maker has a legislative rather than a judicial function Bates v Lord Hailsham – indicated that where the decision maker is performing a legislative function (i.e. making bye –laws) then the rules of natural justice do not apply.

Question 49

Does the claimant have a right to be given reasons?

Answer 49

Although the claimant has a right to know the case against him or her there is no general duty on the part of decision-makers to give reasons (Hasan)

Question 50

When DOES a claimant have a right to be given reasons (3)?

Answer 50

o When a decision is taken that, in the absence of reasons, looks aberrant (Cunningham)
o Where a decision is taken which has a serious impact on a person’s rights (Doody)
o A decision maker must give sufficient reasons to enable a potential claimant to be able to challenge the legality of its decisions in court (Citizens UK)

Question 51

Does a claimant have a right to an oral hearing or cross examination of witnesses?

Answer 51

A claimant in forfeiture case can expect this but not in every case.

The hearing need not necessarily be oral if written representations would be sufficient (Lloyd v McMahon).

There is discretion as to whether cross exam should be permitted (St Germain).

Question 52

Are remedies discretionary?

Answer 52

JR remedies are discretionary SCA s 31(6) so the claimant may be able to show that a dec maker has acted improperly but the court may nonetheless decide not to grant a remedy.

Under the new s 31(2A) of the Senor Courts Act 1981 – the court must refuse a remedy if it appears to the court to be highly likely that the outcome to the claimant would not have been substantially different if the conduct complained about had not occurred.

Question 53

What are the public law remedies?

Answer 53

Quashing order – quashes a dec which is ultra vires (i.e. deprives the dec of legal effect)

Prohibiting order – will order a public body to refrain from legal action (such orders are rare)

Mandatory order – designed to enforce the performance by public bodies of their duties.

Question 54

What are the private law remedies?

Answer 54

Although non pr orders are the main orders used in jud review, it is possible to apply for the following private law remedies in jud review proceedings.

Declaration – A declaration is a court order confirming, but not changing, that legal position or rights of the parties.

Injunction – Performs the same function as a prohibiting order – namely to restrain a person or body from illegal action

Damages – Under s 31 (4) of the Senior Courts Act 1981, the Admin Court can award damages on a claim for jud review where the claimant is seeing other relief (i.e. a quashing order) and damages could have been awarded in a civil claim.

Question 55

Do all claimants have a right to damages?

Answer 55

No. The claimant must have a private law cause of action (e.g. in tort or contract) or a claim for breach of a Convention right.

Damages cannot be awarded just because the claimant has a ground of challenge.

There is no general right in law to damages for maladministration (R v Knowsley MBC, ex p Maguire 1992). Damages are not available purely for the infringement of a public law right.