Judicial Review Procedure

Question 1

Is defendant a public body?

Answer 1

Datafin test

• source of power (was body set up under statute)
• nature of power (does body exercise public law functions)

Question 2

Is defendant a public authority?

Answer 2

When dealing with human rights, you look at s.6 HRA

Question 3

Does claim raise public law issues?

Answer 3

• Those relating to wider public interest/ relationship between state and individual
• procedural exclusivity

Question 4

What is procedural exclusivity?

Answer 4

If the claimant is seeking to enforce public law rights, they do this via judicial review not civil procedure

“O’Reilly v Mackman”

Question 5

Exception to procedural exclusivity

Answer 5

“Gillick v West Norfolk”

Case raised both public and private law issues. Will have choice whether to bring JR or private law claim

Question 6

Does claimant have sufficient interest?

Answer 6

S.31 SCA

• Is claimant directly and adversely affected by matter
  (The National Federation of Self-Employed and Small Businesses)
• When dealing with HR, look at s.7 HRA for victims

Question 7

Sufficient interest with pressure groups

Answer 7

World Development Movement

1. Need to uphold rule of law
2. Importance of issue
3. Likely absence of any other responsible challenger
4. Nature of alleged breach of duty
5. Role of pressure group

Question 8

Is the claimant within the time limit?

Answer 8

1. S.31 SCA - court may refuse claim if there’s been undue delay
2. civil procedure rule - claimant must file claim form promptly within a maximum of 3 months

Question 9

Exceptions to time limit

Answer 9

1. Planning decision claim forms must be filled within 6 weeks
2. Delay may exceed 3 months if claimant is waiting for legal aid or there is difficulty obtaining evidence (Jackson)

Question 10

Complete Ouster clauses

Answer 10

Effectively meaningless as decisions that are ultra cures are nullifies and not protected by clause
“Anisminic v Foreign Compensation Commission”

• wrongful decisions cannot be protected by a full ouster clause
• could not have been Parliament’s intention to allow unlawful decisions, as it would be quashed if deemed unlawful

Question 11

Partial ouster clauses

Answer 11

E.g. time limits

• Usually 3 months to bring a claim in judicial review
• “Ostler” - exception
  Held that partial ouster clause stated JR claim has to be brought within 6 weeks