Judicial Review - Procedure and remedies Flashcards
What needs to be present before you can apply for JR?
(1) Public body / body exercising a public function
(2) Public law issue
(3) JR is available (no appeal rights / ouster clauses)
(4) Standing
(5) Timescales
What are the two stages of a JR?
- Permission stage
- Substantive stage
How does Part 54 of the Civil Procedure Rules define Judicial Review?
“A claim to review the lawfulness of a decision, action or failure to act in relation to the exercise of a public function”
O’Reilly v Mackman (1993)
If the issue is a public law one, you cannot sue privately
What is the test for when a body is exercising a public function?
(1) Source of power: Is it statute or royal prerogative? OR
(2) Nature of power: If the body did not exist, would Parliament step in and create it?
(Datafin)
R (Beer) v Hampshire Farmers Market Ltd (2004)
Local council previously operated a farmers’ market, but passes on responsibility to a company set up by stallholders themselves
A refusal by company to issue a licence can be JR’d, as issuing licences is a public function
There were three reasons:
1. Markets were held on public land, to which the public had access
2. Company owed its existence to the council, having been set up by the council using statutory powers
3. Company performed the same functions that had previously been performed by the council
How is “standing” defined in statute?
“Sufficient interest in the matter to which the application relates”
Where is the statutory definition of “standing” for JR set out?
Senior Courts Act 1981 s31(3)
R (National Federation of Self-Employed and Small Businesses Ltd) v IRC (1982)
Ordinarily, one taxpayer doesn’t have sufficient interest in the way another taxpayer is dealt with, providing this isn’t unlawful
Furthermore, the question of “standing” is dealt with at both the permission and the substantive stage
R (World Development Movement) v S of S for Foreign Affairs (1994)
For pressure groups, five factors should be considered when it comes to “standing” for JR:
1. The need to uphold the rule of law
2. The importance of the issue raised
3. The likely absence of any other responsible challenger
4. The nature of the alleged breach
5. The role of the pressure group
Here, WDM had standing to review a decision to provide aid to build a dam in Malaysia, which was really a sweetener for an arms deal
Roy v Kensington Family Practitioner Committee [1992]
When there is a mixture of private and public law issues, then the ‘procedural exclusivity’ rule doesn’t apply
An NHS committee makes a decision that a GP isn’t entitled to a full rate of pay - this is a public law decision, but there are private law issues around breach of contract here too
R (British Gas) v Secretary of State for Energy Security and Net Zero (2023)
In the financial field, a delay of only a few days can have major implications, so bringing a JR after three weeks can be out of time
Here, the business of one energy supplier (Bulb) was transferred to Octopus, and rivals wanted to JR this - they had known of the grounds for JR shortly after the decision, but didn’t bring it for three weeks
