Judicial review procedure

Question 1

Five limits to availability of judicial review

Answer 1

• Is the body which had made the decision one which is appropriate to subject to review? (AMENABILITY)
• Is the particular decision complained of reviewable?
• Does the person who seeks to challenge the decision have standing (LOCUS STANDI)?
• What is the procedural relevance for the applicant of answers to the above questions?
• Has parliament limited judicial review in this circumstance?

Question 2

Types of bodies susceptible to judicial review

Answer 2

Part 54.1 of the CPR states that
“(a) a ‘claim for judicial review’ means a claim to review the lawfulness of –
(i) an enactment; or
(ii) a decision, action or failure to act in relation to the exercise of a public function.”

Question 3

Statutory bodies

Answer 3

Amenability is easy for statutory bodies such as Ofcom, though it is different for private acts of Palriaments (R (on the application of West) v Lloyds of London), where a private act of parliament was not enough to render Lloyds amenable to review.

Question 4

Non-statutory, self-regulatory bodies

Answer 4

ex p Datafin: the court held their actions were reviewable due to the ‘public element’ of their powers. This was because of their power in regulating take-overs and mergers, support by people in those transactions and it was supported by vast powers in the stock exchange and was thus tied to an ‘act of government’ in that sense.
ex p Aga Khan: powers were not governmental and there were adequate remedies in contract. The idea of ‘monopoly power’ as a reason for judicial review is rejected in Aga Khan.

Question 5

Royal prerogative

Answer 5

Are amenable to judicial review (GCHQ).

Question 6

Contracted out powers

Answer 6

Are amenable to judicial review (London & Quadrant Housing Trust) if they carry out effectively the same function as government and the ‘but for’ and ‘governmental enmeshment’ tests were satisfied.

Question 7

Influence of the HRA

Answer 7

Sets out a much more generous test interpreted from s6(1) of the Act. The test for judicial review and HRA amenability are not to be harmonised (YL).

Question 8

Standing

Answer 8

Regulated by s31 of the Supreme Court Act 1981: “the court shall not grant leave to make such an application unless it considers that the applicant has sufficient interest in the matter to which the application relates.”

It is easy to establish for your employment (Roy) or housing (Ali v Tower Hamlets).

Question 9

Establishing standing

Answer 9

It can occur at the permission/leave stage and the full hearing (Fleet Street Casuals).

Question 10

Fleet Street Casuals case

Answer 10

• Significantly liberalised the law on standing:
• Standing is not limited to a person whose legal rights are impacted upon by the act or decision in question.
• (According to the majority) ‘sufficient interest’ depends on the nature of the interests relevant to the law under which the act is performed/the decision is made.

Question 11

ex p St Germaine (No 2)

Answer 11

Decisions which affect one’s legal rights will have automatic standing. In this case a prisoner was found guilty of disciplinary offences and was punished, therefore standing was easily established.

Question 12

Pressure groups

Answer 12

Many factors are considered which will be explored in subsequent flashcards.

Question 13

Trade unions

Answer 13

Trade unions have standing as a proxy for individuals (GCHQ).

Question 14

Statutory authority to further certain aims

Answer 14

Body has standing if a statutory one that has a statutory duty to further certain aims: R v Secretary of State for Employment, ex parte Equal Opportunities Commission

Question 15

Link to merits

Answer 15

Standing is also linked to merits (ex p National Federation of Self Employed). In this case no standing was found but it was held that had the pressure group argued for an abuse of the revenue’s managerial discretion they would have succeeded. This was supported in ex p Greenpeace and ex p WDM.

Question 16

No local connection through association

Answer 16

ex p Rose Theatre Trust: standing not granted as the group had formed only to challenge the decision and thus because standing would not be granted to the individuals alone, it would not be granted to them as a group. They had no expertise or local interest and their concern was only for the issue at hand.

Question 17

Local connection

Answer 17

ex p Greenpeace: standing found to protest a development of a nuclear plant in Cumbria not because of 400,000 UK supporters, but because of 2,500 supporters in Cumbria.

Question 18

No other suitable body to challenge a decision

Answer 18

ex p World Development Movement: sought to challenge the use of a statute for improper purposes, the court used a flexible analysis finding standing on the basis that it sought to vindicate the rule of law, the issue was significantly important, there was no other suitable challenger, the nature of the breach, and the prominent role of the WDM in expert aid assistance.

Question 19

Rule of law vindication

Answer 19

Cornerhouse research v SFO: granted standing for vindication of the rule of law.

Question 20

Time limits and permission

Answer 20

Claims must be filed promptly, or within three months after the grounds appear. Standing can be denied for being unduly delayed even if within the three moments (ex p Royal Society for the Protection of Birds).

Permission, if denied from the high court, can be appealed for from the Court of Appeal.

Question 21

Remedies which can be obtained

Answer 21

Note: all remedies are discretionary

Quashing - formerly Certoriari
Mandatory order - formerly Mandamus
Prohibiting order - formerly Prohibitioni
Injunction
Declaration (definitive statement of the legal position of the parties).
Damages may be sought but not alone (CPR).

Question 22

Procedural exclusivity: when must JR be used?

Answer 22

CPR 54.2: when MUST it be used? When seeking

• a mandatory order
• a prohibiting order
• a quashing order
• an injunction under s30 of the SCA 1981

CPR 54.3: when MAY it be used? When seeking

• a declaration
• an injunction super

Question 23

O’Reilly v Mackman

Answer 23

Prisoners at Hull Prison, alleging that decisions made by the prison’s Board of Visitors were bad for want of natural justice attempted to proceed by way of writ or originating summons, rather than under Order 53 (the previous rules governing applications for judicial review). It was found that it would be contrary to public policy to not use Ord 53 as it would evade its provisions.

Question 24

Collateral challenge

Answer 24

An exception to procedural exclusivity. Proceedings against a bye-law can be raised as a defence in a criminal trial (Boddington v British Transport Police).

Question 25

Cases raising mixed points of public and private law

Answer 25

Roy v Kensington and Chelsea and Westminster Family Practitioner Committee: a doctor was having his practice partly withheld as he was not devoting enough time to it as required. He applied by way of writ but NHS sought to have it struck out as an abuse of process. It was found that he could proceed by writ as he had a right to a fair and legally correct consideration of his claim, and his private rights were also at stake. The private rights ‘dominated the proceedings’ and his remedy sought could not be granted under Ord 53.

Question 26

Pragmatic/flexible approach

Answer 26

Clark v University of Lincolnshire and Humberside: in this case a student had been denied a grade higher than a third for breach of university regulations. This case showed a movement away from O’Reilly v Mackman towards a greater focus on whether the protection under Order 53 has been flouted. This showed their flexibility in procedures.

Question 27

Use of discovery

Answer 27

The courts use a very limited approach to discovery, allowing it only where it is completely necessary. ex p WDM displayed this as meeting minutes were not granted despite being needed to find the intention of the Dam builders in Malaysia.

Question 28

Ouster clauses

Answer 28

Basic principle: ouster clauses are very strictly interpreted.

Question 29

Anisminic

Answer 29

A provision in a statute gave jurisdiction the FCC to determine compensation that should be paid to British nationals who had had property confiscated by foreign governments. S4(4) stated: “decisions by the Commissioners shall not be called into question in any court of law”.

It was interpreted very strictly by the courts, claiming that it would require ‘crystal clear’ language to oust the jurisdiction of the courts. By making an error in law deemed from meeting minutes, the body determined a point it wasn’t empowered to do and so acted ultra vires. The idea of a body being allowed to err in law was rejected.

Question 30

Tribunals and Inquiries Act 1992

Answer 30

Any provision of any act passed before 1958 that tries to exclude judicial review shall have no effect.

Question 31

R (On the application of A) v B

Answer 31

The Security Services Act 1989 sought to oust judicial review and the courts found it appropriate to do so because a tribunal had been set up in its place.

Question 32

R (on the application of G) v Immigration Appeals Tribunal

Answer 32

The courts look at whether an alternative remedy is proportionate to an exercise of judicial review. It was found that in this instance the statutory regime provides adequate and proportionate protection.

Question 33

Asylum and Immigration Bill 2003

Answer 33

Sought to oust judicial review by reason of 
I.	Lack of jurisdiction,
II.	Irregularity,
III.	Error of law,
IV.	Breach of natural justice, or
V.	Any other matter 

Intense political pressures to drop the bill caused it to be withdrawn. Michael Fordham stated that the courts could find such an ouster clause ‘unconstitutional’ (the nuclear option).