Judicial Review - Preliminaries

Question 1

What are the 5 JR preliminaries?

Answer 1

1. Amenability of decision to JR
2. Procedural exclusivity
3. Standing
4. Time Limits
5. Ouster clauses

Question 2

Which decisions are amenable to JR?

Answer 2

Public law decisions made by public bodies (CPR 54.1)

Ex p Datafin – if the source of the power is statutory the decision will be amenable to JR, there is no need to look at the nature of the power because the SOS has exercised his power under the Act.

Question 3

How will the courts determine whether a body is public?

Answer 3

They will look at the source and nature of the decision, with more emphasis being placed on nature (R v Panel of Takeovers and Mergers ex p Datafin)

Question 4

Examples of public bodies

Answer 4

Bodies created by or exercising power granted by statute or delegated legislation
• Ex: local authorities, statutory bodies, statutory tribunals, inferior courts

•If the body is performing a public law function it will be a public body for the purposes of JR (CPR 54.1(2)(a)(ii))

Question 5

Are regulatory bodies exercising a public function?

Answer 5

Usually - yes, especially if it is an area that Parliament would regulate ‘but for’ the existence of the self-regulatory authority (R v Advertising Standards Authority ex p Insurance Services; R v Bar Council ex p Percival).

Question 6

Regulatory bodies which are not exercising a public function

Answer 6

• Sporting regulators have been deemed not to be exercising a public function (R v Football Association ex p Football League; R v Jockey Club ex p Aga Khan)
• Religious bodies dealing with solely religious matters (R v Chief Rabbi ex p Wachmann)
• Aga Khan decision?

Question 7

DAtJR - contracting out?

Answer 7

• If the statute governing the public body expressly extends to contractors with which the body contracts or if the contractor is itself regulated by statute it will be exercising a public function (R (A) v Partnerships in Care)
• Where the statutory obligation is purely on the local authority it will not apply to any of the bodies to which they contract out (R v Servite Houses and Wandsworth ex p Goldsmith)
• Private residential homes have been deemed not to be exercising a public function (YL v Birmingham CC)

Question 8

Procedural exclusivity?

Answer 8

If the decision is amenable to judicial review the client should issue in the administrative court under CPR part 54 (O’Reilly v Mackman). To do otherwise would be an abuse of process.

Question 9

2 exceptions to procedural exclusivity

Answer 9

Exception: where the relationship involves a private contract with the public body, a private law claim can be brought (Roy v Kensington and Chelsea FPC), regardless of whether the private contract is merely incidental to the relationship or not (Mercury Communication v DG Telecommunications)

Exception: judicial review may be used as a defence in a private law claim (Wandsworth LBC v Winder; Boddington v British Transport Police)

Question 10

Procedural exclusivity - what kind of claim should a claimant bring if unsure about whether the case involves public or private law?

Answer 10

A JR claim (Trustees of Dennis Rye Pension Fund v Sheffield CC)

(?) Clark v University of Linc and Humberside.

Question 11

What constitutes standing?

Answer 11

S 31(3) Senior Courts Act states that a claimant must have sufficient interest in the matter to which the application relates to bring a case. 
Generally there has been a ‘generous conception of standing (Lord Diplock, Fleet Street Casuals)

Question 12

How do individuals get standing?

Answer 12

Individuals automatically have sufficient interest where they are directly affected by the subject matter of the case (R v SOS HD Department ex p Venables)

Individuals who have sufficient concern for the issue may have sufficient interest depending on the circumstances (R v SOS Foreign and Commonwealth Affairs ex p Rees-Mogg)

Question 13

Can one challenge public law decisions when they are not immediately connected to it?

Answer 13

Judiciary is keen to emphasize the importance of allowing public law decisions to be challenged even if the connection with the issue is not a personal / immediate one…ospreys (Walton v Scottish Ministers)

Question 14

Standing and pressure groups: can bodies set up for the sole purpose of challenging a decision be granted standing?

Answer 14

No - (R v SOS Environment ex p Rose Theatre Trust)

Question 15

Can individual members of a pressure group have standing?

Answer 15

Yes, if they are affected (R v SOS HD ex p Greenpeace (no 2)) although this is not necessary (R v Foreign Secretary ex p World Development Movement)
Local groups with members who are individually affected will have standing (Liverpool Taxis)

Question 16

What will courts consider about pressure groups to see if they have standing?

Answer 16

The court will consider the reputation of the group and any expertise it has in the issue at hand (ex p Greenpeace (no 2))
Thru will consider the organisation’s nature, role and purpose, if these are closely connected to the issue they may be granted standing (Equal Opportunities v SOS Employment; R (Corner House Research) v Director of the Serious Fraud Office)

Question 17

When can a pressure group that does not have individuals directly affected bring a claim?

Answer 17

If there is no one else willing to bring a claim (ex p WDM)

Question 18

What are the time limits?

Answer 18

The claim must be filed promptly (CPR r54.5(1)(a)), and in any event within 3 months after the grounds for the claim first arose (CPR r54.5(1)(b))

It is strongly advisable for claimants to issue proceedings as soon as possible

Question 19

Can the courts extend time limits?

Answer 19

The court may extend the time period in exceptional circumstances (R v Dairy Produce Quota ex p Carswell), such as situations where the point at which the public body’s decision is unclear (Clark v University of Lincolnshire & Humberside)

Question 20

Ouster clause definition

Answer 20

A clause in a statute which attempts to prevent the operation of judicial review to the whole or part of that statute

Question 21

What do ouster clauses need to have an effect?

Answer 21

Sufficiently clear and precise wording.

Question 22

How do courts interpret ouster clauses?

Answer 22

As narrowly as possible (Anisminic v Foreign Compensation Commission) perceiving them to inhibiting the rule of law

Court interpreted determinations to refer to lawful determinations only. Therefore unlawful determinations were still subject to JR.

Question 23

Do courts permit total ouster clauses?

Answer 23

No

Question 24

Do courts permit partial ouster clauses?

Answer 24

Sometimes. Eg: where they reduce the time limit for JR review to a period of less than three months (Smith v East Elloe RDC) (54.5 1.c CPR)

Question 25

Ouster clauses: what methods should be used prior to bringing claim to JR?

Answer 25

An alternative statutory appeals process (R v IRC ex p Preston) or an alternative method of resolution (R (Cowl) v Plymouth CC)