judicial review part 3

Question 1

the exclusivity rule

Answer 1

traditionaly courts strict on the exclusivity rule (if public rule issue then must be JR)
- O’reilly V Mackman 1983- prison is a public body so couldnt take private law route
rule sinces been liberalised:
-roy 1992- GP public body but allowed to pursue contractual law route (private)
-clarke 2000- education public body but allowed contractual law route (private)

Question 2

circumstances JR can be excluded

Answer 2

-express exclusion
-impled exclusion

Question 3

express exclusion (ouster cluases)

Answer 3

a piece of legislation that aims to prevent judcial review of certain decisions or acts by the executive
-courts do not take this as the final say
-to interpret these clauses the courts take a more purposive approach and look behind the words used by parliament to ascertain its intentions

R v Medical appeals tribunal 1957- national insurance act 1949 said any decision of a claim or question shall be final, lord denning - only where there is no other interpretation of the statute will he decide he does not have the power to look at the case

Anisminic v foreign compensation commission 1969- “appliacnts made under this act shall not be called into question in any court of law”, lord reid such a provision protects every determination that is not a nullity

Question 4

implied exclusions of judcial review

Answer 4

smith v east elloe rural district council 1956- compulsory purchase order and extent they can be challenged in court, statute authorising this stated challenging needs to be done within 6 weeks after the decision has been made, here after 6 weeks

R v SOS for the environment 1977- not an exclusion of the right to have the court look at the decision of public bodies, balancing the public interest of having things done in a timely manner and the interest of the individual having access to the court is reasonable