Judicial Review - Procedural Impropriety

Question 1

Fairmount Investments v Secretary of State for the Environment

Answer 1

The rules of natural justice must be complied with.

C should know the case against him and have the right to reply.

Question 2

Aylesbury Mushrooms

Answer 2

Failure to observe press procedural rules or breaching mandatory requirements invalidates a decision.

Question 3

R v Sonerji

Answer 3

Development of Aylesbury Mushrooms - Need to consider the impact of the breach.

Question 4

Ridge v Baldwin

Answer 4

Duty of fairness applies both for administrative and judicial decisions. (Subject to exceptions)

Question 5

Licence applications

Answer 5

Should act fairly but at low levels:

• Rejecting application - no need to give reasons (McInnes v Onslow-Fane)
• Revoking licence - need to give reasons (Ex p Liverpool Taxi Fleet / McInnes)
• When stakes are very serious, need to give reason for application rejection (Ex p Benaim and Khaida).

Question 6

The rules of natural justice:

Answer 6

1) The rule against bias

2) The right to a fair hearing

Question 7

The rule against bias (Direct)

Answer 7

Is the bias direct or indirect?

If DIRECT, court obliged to quash and reconsider decision. Direct bias is:

i) Where interest may lead to financial / pecuniary GAIN (Dimes v Grand Junction Canal Properties)
ii) If not pecuniary, where the decision-maker is involved in promoting the SAME CAUSE as a party in the case (Pinochet)

Question 8

The rule against bias (indirect)

Answer 8

If INDIRECT, in order for decision to be quashed, the court must consider the (Porter v Magill) test:

1) Would a fair-minded and impartial observer conclude that there had been real possibility of bias?
2) Whether the bias did affect the decision is immaterial - rather, what is critical is how the decision would appear to an observer.

Question 9

The Right to a fair hearing

Answer 9

i) There is a duty on decision-makers to at in good faith and listen fairly to both sides (Board of education v Rice)
ii) C should know the case against them and have the right to reply (Fairmount Investments)
iii) Right to make representation (orally unless waived) (Lloyd v McMahon). Decided in case by case business (Anderson)
iv) Right to call and cross examine witnesses (Ex p St. Germain)
v) Right to legal representation - This is not a general right except in legalistic situations such as a serious charge, issues with points of law, or a need for speed (Ex p Tarrant)
vi) Duty to give reasons - no common law duty (Hansan v SOS for Trade and Industry) unless fundamental liberty is at stake (Ex p Doody)

Question 10

Ex p St Germain

Answer 10

Rights to call and cross-examine witnesses.

Question 11

Board of Education v Rice

Answer 11

There is a duty on decision makers to act in good faith and listen fairly to both sides.

Question 12

Durayappah v Ferdano

Answer 12

Higher level of duty, higher right to be heard