Judicial Review: Preliminary issues

Question 1

Is the decision amenable to JR?

Answer 1

Generally, only the public law decisions made by a public body are amenable to JR.
If the decision in question is a pure public law decision, the claim must be issued as a JR claim (Civil Procedures Rules Part 54).
According to ex p Datafin, if the source of a power is statutory or the royal prerogative that will be determinative of whether the decision is one of public law. Datafin also tells us that we can look to the nature of the power as well as its source to determine whether a decision is one of public law

Question 2

Procedural exclusivity (can the action be brought in the administrative law?)

Answer 2

When a public body has made a decision which is a matter of public law, any action should be commenced via judicial review, private law matters were to be dealt with by ordinary action (O’Reilly v Mackman).

Question 3

Exceptions to the Procedural exclusivity principle

Answer 3

1. JR procedure need not be used when neither of the parties objected to the use of private law procedure
2. when the challenge to a contested decision or action was collateral, i.e. if it arose out of or incidentally to some other legal claim. Roy v Kensington and Chelsea FPC

Question 4

Roy v Kensington and Chelsea FPC

Answer 4

Court: where litigant was asserting a private law right, which incidentally involved the examination of a public law issue (the FPC’s decision) he wasn’t debarred from seeking to establish that right by ordinary action.

Question 5

The Trustees of Dennis Rye Pension Fund v SCC

Answer 5

if an applicant is uncertain as to which procedure to adopt, then JR should be favored.