Judicial Review Preliminaries, Procedure and Remedies Flashcards
What is the purpose of judicial review?
To review whether a decision has been made correctly and implemented according to the law.
Court is not trying to substitute its own decision for that of the decision maker
What five preliminary issues need to be considered before a judicial review claim can be pursued?
- amenability
- procedural exclusivity
- standing
- time limits
- ouster clauses
What is the amenability step that needs to be overcome to bring a judicial review?
Needs to be decided whether decision or action is appropriate for judicial review.
When will a decision be amenable to judicial review?
- public law decision
- ‘a decision, action or failure to act in relation to the exercise of a public function’
- normally decision made by statutory body such as government departments and local authorities
- prerogative powers can be judicial reviewed
- some non-public bodies’ decision can be judicially reviewed if public in nature
When have the courts judicially reviewed a decision by a private body?
- Panel of take-overs and mergers - decision was performing public law function - nature of the decision not where the power came from that was decisive
- if self-regulatory authority, decisions by them JR if the government would have to create a similar body if they did not exists
What is procedural exclusivity as a preliminary to JR?
- judicial review is the exclusive procedure for challenging public decisions
- private law matters should be deal with by ordinary action
- to bring public law challenge to court in a way other than JR would amount to abuse of process of the court
- where both a public and private law action exists, individuals are not debarred from bringing a private law action due to the existence of a public law one too
What are the standing requirements for JR?
- leave of High court must be obtained
- applicant must have sufficient interest in matter for leave to be granted
What is the sufficient interest test for standing?
- mixed question of law and fact
- needs to be strong connection between applicant’s degree of interest and the matter in contention
When will an individual or organisation have sufficient interest for standing?
When they are directly affected by a public law decision will be given standing
If they are not directly affected but just concerned about decision then courts may give permission, will depend on facts of case
When will an association have sufficient interest for standing?
Courts will allow association of individuals to have standing when individually they would be seen to have sufficient interest - association can therefore challenge on basis of communal interest
When will pressure and interest groups have sufficient interest for standing?
- courts recently taken liberal approach
- more likely to give pressure and interests groups standing if there is an absence of any other responsible challenger, the prominent role of the applicants, the nature of the breach, importance of vindicating the rule of law
What are the time limits for bringing a judicial appeal?
Must be filed:
- promptly
AND
- no later than 3 months after the grounds to make the claim first arose
Can the court grant judicial review outside of time limits?
Yes - has a residual power to grant JR.
Can refuse to do so if undue delay and if it considers that the relief sought would cause substantial hardship to or substantially prejudice the rights of any person or would be detrimental to good administration
What are the time limits for bringing JR for planning decisions and public procurement?
- planning decision have an even shorter limit (six weeks)
- public procurement decisions (30 days)
How will the court approach ouster clauses that seek to exclude their ability to conduct JR?
They will be hostile to any such clauses and view them as a challenge to their constitutional rule to uphold the rule of law.
Would have to be very explicit wording to exclude the court’s jurisdiction.
Time limitation ouster clauses are generally accepted.
