Judicial Review Basics (read with locus standi)

Question 0

Liversidge v Anderson

Answer 0

Another private law case like Entick, which had the true purpose of assessing government poweres

Question 1

Entick v Carrington

Answer 1

Duality between public and private law in JR

Question 2

Anisminic v Foreign Compensation Commission

Answer 2

Originally, the remedies of prohibition and injunction were just for private individuals and presumed standing and gravity of the issue at hand

Question 3

Factortame (No. 2)

Answer 3

Despite the private law stream being much more open i.e. 6 years leave as opposed to 6 months, the remedies were still not as of right and, until Factortame, there could be no injunction against the crown - a substantial portion of Central gvt was therefore out of reach

Question 4

Barnard v National Dock Labour Board

Answer 4

The turning point for public/private law duality - Denning LJ elucidates – more scrutiny for gov bodies and more willing to protect individual rights

Question 5

Pyx Granite Co v Ministry of Housing and Local Gvt

Answer 5

Reinforced Barnard - the court was not debarred from using a private law remedy if the time limit for the public one had expired

Question 6

De Falco v Crawley Borough Council

Heywood v Board of Visitors of Hull Prison

Answer 6

Initial case law of Order 53 - in DF Denning LJ favoured the protection of citizens’ rights an in H, Goulding J wanted to protect gvt bodies from unwarranted scrutiny, which would impinge upon their decision-making

Question 7

O’Reilly v Mackman

Gilmore

Answer 7

Heywood had been wrongly decided and to decide that Order 53 was the only route proffered by the court where this had not been expressly stated in statute would be to oust its own juridiction
Denning LJ said similar of an ouster clause in Gil\

Question 8

O’Reilly v Mackman,

Developing Lambert

Answer 8

It is ironice that denning was was on the bench in O’Reilly when they overruled the High Court decision which took Denning’s view in De Falco - they approved Goulding J in Heywood that gvt bodies should be protected

Question 9

Cocks v Thanet District Council

Answer 9

Tried to steer away from the draconian O’Reilly decision by asserting that most issues would fall under AJR

Question 10

Puhlhofer v Hillingdon Borough Council

Answer 10

Worsened O’Reilly by saying that homeless persons had virtually no right to effective protection against decision-making

Question 11

GCHQ

Answer 11

There was an inconsistency between the HL readiness to pull more types of gvt decision-making within judicial supervision and the unwillingness to allow challenges to be made through the most effective route

Question 12

Davy v Spelthorne Borough Council

Answer 12

Wilberforce attempted to mitigate the tensions between GCHQ and O’Reilly somewhat by asserting that the public-private divide was not concrete

Question 13

Wandsworth Borough Council v Winder

Answer 13

Another exception to O’Reilly, NB that Mr Winder had not chosen the action and that public law and private law were in fact mixed on the facts - his defence of irrationality was allowed

Question 14

Lavelle

Walsh

Answer 14

Flip side of O’Reilly - where public law stream is better than private - esp employment law - public law stream was rejected here as it was in essence a master/servant relationship entitling only public law remedies
NB generally debarred pub route due to contractual nat of emp

Question 15

Datafin

Answer 15

The ‘but for’ argument made in Law was made more successfully here - it was subject to JR even though non-statutory made - its significance meant that ‘but for’ the panel the gvt would have to step in

Question 16

Massingberd-Mundy

Aga Khan

Answer 16

Despite Datafin, the High Court upheld Law due to the contractual nature between the parties

Question 17

Servite Houses

Answer 17

Even though the residential home offered a public function, the contract with the council was insufficient to bring them in the realms of Datafin, even though there was a substantive legitimate expectation in the Coughlan sense

Question 18

Wachmann

Answer 18

No contractual relationship but no public law issue either - however, Brown J alluded to there being an issue of non-justiciability

Question 19

Roy

Boddington

Answer 19

Suggested that O’Reilly had allowed an inappropriate interpretation - O’Reilly could be construed in two ways, as proffered by counsel for Roy – broad and narrow view
Boddington, although not decisive is instructive per adopting the brad O’Reilly view