Judicial Review - Preliminaries Flashcards
JR Preliminaries
1) Procedure: Does C raise a PUBLIC law issue?
2) Amenability: Is D a PUBLIC BODY?
3) Standing: Does C have SUFFICIENT INTEREST?
4) Time: is C within the TIME LIMIT?
5) Ouster clausesi
1) Procedure
Does C’s claim raise public law issues?
a) Public law issues relate to the wider public interest / the relationship between state and individual.
b) Procedural Exclusivity: If C is seeking to enforce public rights, should do so via JR procedure, not ordinary civil procedure (O’Reilly v Mackman).
i) However, if the claim involves a mixture of private and public law rights, the public claim may be raised in private proceedings (Roy v Kensington)
ii) If unsure, bring a JR (Trustee of Dennis Rye Pension Fund v Sheffield CC)
2) Amenability
Is D a public body?
- Apply Datafin test
a) Test 1: Source of Power: was body set up under statute / delegated legislation, e.g. Advertising Standards Authority, Bar Council etc.
b) Test 2: Nature of Power: does body exercise public law functions? e.g.
i) private care home does not (YL v Birmingham CC)
ii) sporting body does not unless it’s a school ( R v Jockey Club)
iii) religious bodies do not unless a school (ex parte Wachmann).
3) Standing
Does C have SUFFICIENT INTEREST to make a claim? (s.31(3) Senior Court Act 1981
a) Fleet street casuals - consider if C directly and adversely affected by the matter.
b) Pressure groups (ex p Greenpeace) consider five factors:
i) Importance of the matter
ii) Whether anybody is better placed to bring claim
iii) Need to uphold rule of law
iv) Role of pressure group
v) role of statutory duty involved.
4) Time
Is C within the TIME LIMIT?
a) s.31(6) SCA 1981: court may refuse claim if there’s been “undue delay”
b) Civil Procedure Rule 54.5: C must file claim form “promptly”, within a maximum of 3 months after the ground arose, and without prejudice to any statutory provision which shortens the time limit. N.B. the time limit for planning cases is now six weeks from the decision, and for public procurement the time limit is just 20 days.
c) (Jackson): delay may exceed 3 months if C is waiting for legal aid / there is difficulty obtaining evidence / other justified reasons.
5) Ouster Clauses
Check for OUSTER provisions / statutory right of appeal.
a) COMPLETE ouster clauses are effectively meaningless (Anisminic v Foreign Compensation Commission)
b) PARTIAL ouster clauses (i.e. Parliament imposing time limits for judicial review claims) will be tolerated by the courts provided they appear reasonable. (Ex p Ostler)
c) IMPLIED ouster clauses: courts will accept the availability of an alternative statutory right of appeal as an implied ouster clause (Ex p Goldstraw)
Fleet street casuals
C must be directly and adversely affected by the matter
YL v Birmingham CC
A private care home is not a public body
R v Jockey Club
Sporting org. not a public body
R v Wachmann
Religious body not a public body unless it’s a school.
Roy v Kensington
If claim involves mixture of private and public law rights, public claim can be brought in private hearing.
