Judicial Review - Procedure and Remedies

Question 1

What are the requirements for a judicial review case?

Answer 1

o The decision must be one of public law
o The decision must be made by a public body
o The claimant must have sufficient standing
o The claim must be made in time
o There must be no ouster clauses blocking a JR challenge
o C must have exhausted all other available remedies

Question 2

What are the most common types of judicial review cases?

Answer 2

o Making of a CPO over land
o The grant or refusal of a licence
o Refusal of discretional financial grants

Question 3

What is the principle of procedural exclusivity?

Answer 3

The judicial review procedure should be followed, rather than private law procedures

Question 4

What is the exception to the principle of procedural exclusivity?

Answer 4

If the case involves private and public law elements, the public law element may be raised in private proceedings

Question 5

What is the concept of collateral challenge?

Answer 5

if private law or criminal law proceedings are issued, a public law issue may be raised as a defence.

Question 6

What is an example to the principle of collateral challenge?

Answer 6

The Council bought private proceedings suing D for not paying the rent increase. D argued that the rent increase was ultra vires (i.e. public law issue). The court confirmed public law defences could be raised in this way in private proceedings

Question 7

How do you ascertain whether the issue is one of public law?

Answer 7

Look at the issue at hand and relationship between the parties, is it contractual? Is it tortious? If so, these are private law issues and the judicial review procedure isn’t to be used.

Question 8

What is the test to determine whether the decision was one of a public body?

Answer 8

1. Source of power - the decision-making body will be a public body if:
   a. It has been set up under statute or delegated legislation; OR
   b. It derives its power under a reviewable prerogative power

If this is not satisfied, then the court consider the second part of the test:

2. Nature of power - if the decision-making body is exercising public law functions then it may still be a public body

Question 9

Who has standing to bring a judicial review claim?

Answer 9

S31(3) SCA 1981

‘C will have standing to bring a JR claim if ‘they have sufficient interest in the matter to which the claim relates’

Question 10

How do you ascertain whether a claimant has a ‘sufficient interest’ in a matter?

Answer 10

If C has a personal connection to the case, then this will be easily satisfied.

If C does not have a personal interest, then the judge will look at the merits of the claim. If there has been serious wrongdoing, a judge is unlikely to refuse permission on the basis there is a lack of standing.

Question 11

Do pressure groups have sufficient standing?

Answer 11

This will depend on their interest. If the group has a personal connection, then yes (i.e. local residents). However, if they do not, then the court will need to determine if they have a sufficient interest

Question 12

What factors do the court consider when determining whether a pressure group has a sufficient interest?

Answer 12

o The need to uphold the rule of law;
o The importance of the issue raised;
o The likely absence of any other responsible challenge;
o The nature of the alleged breach of duty; and
o The role of the pressure group - the court placed emphasis on this i.e. the expertise and prominence a group has and the relevance they have to the matter (i.e. does the group specifically deal with this matter or deal with it more generally?)

In summary, the court is looking to see whether they have a genuine interest and are not just busy bodies

Question 13

What is the time limit to challenge most decisions by judicial review?

Answer 13

a claim form must be filed promptly and in any case within a maximum of three months after the date of the decision

Question 14

What is the time limit to challenge planning act decisions by judicial review?

Answer 14

Planning acts claims (as defined by the Town and Country Planning Act 1990):

must be bought within 6 weeks from the date of the decision

Question 15

What is the time limit to challenge public procurement cases by judicial review?

Answer 15

30 days from the date of the decision

Question 16

What is the caveat to judicial review time limits?

Answer 16

The time limits are without prejudice to any statutory provision that shortens the time limit for a JR claim

Question 17

Specific time limits aside, what else is relevant to time limits when a claimant brings a claim?

Answer 17

C should bring a claim as soon as the possible and not wait until near the expiration of the three months otherwise the case may be struck out due to ‘undue delay’

S31(6) SCA 1981  the courts can refuse a claim where it feels there has been ‘undue delay’

Question 18

Can the court grant an extension of time?

Answer 18

Yes, it has discretion to but it is not obliged to, even if there are good reasons to do so.

Question 19

What are examples of ‘good reasons’ to grant an extension of time?

Answer 19

R v Stratford-upon-Avon DC, ex p Jackson [1985] - C filed her claim after 8 months. She gave the following reasons for the delay, these were held to be good reasons:

 she had to wait for the outcome as to whether the secretary of state would ‘call the matter’ for consideration
 difficulties obtaining legal aid (this would be given less weight now)
 difficulties in obtaining permission from copyright holders for plans and drawings

Question 20

When will the court exercise its discretion and grant an extension of time?

Answer 20

If there is good reason to do so

Question 21

What will the consider when determining whether to exercise its discretion to allow an extension of time?

Answer 21

The court will weigh the delay up against the merits of the claim and prejudice it would cause by granting permission

Question 22

What are the consequences for bringing a claim out of time?

Answer 22

A remedy could be refused on the basis the claim was made outside of the time limit

Question 23

When will an extension of time not be allowed?

Answer 23

If there is a relevant ouster clause

Question 24

What is an ouster clause?

Answer 24

Ouster clauses are provisions inserted into Acts where Parliament wants to exclude any right of challenge once it has been made by a public body

Question 25

Where will an ouster clause be found?

Answer 25

in the enabling Act

Question 26

What are the types of ouster clause?

Answer 26

o Full ouster clauses
o Partial ouster clauses

Question 27

What is a full ouster clause? Give an example.

Answer 27

A clause that purports no right of challenge and thus excludes the court from reviewing the decision

i.e. ‘…shall not be questioned in any court of law’

Question 28

What is the court’s position in relation to full ouster clauses?

Answer 28

The courts have sought to circumvent them:

(R (Privacy International) v Investigatory Powers Tribunal [2019] - the judge said that it may be possible to exclude JR if the legislation used clear and explicit words. However, to date no full ouster clause has been sufficiently clear to have been upheld.

Question 29

When will a full ouster clause not protect from judicial review?

Answer 29

If the public body has made a decision beyond its powers / outside of its permitted area (i.e. ultra vires), then it will not be protected by the ouster clause and will be amenable to JR

Question 30

What is a partial ouster clause?

Answer 30

These provide some opportunity for a decision to be challenged by way of JR, but limit the scope

Question 31

What is an example of a partial ouster clause and why?

Answer 31

R v Secretary of State for the Environment, ex p Ostler [1977] - the relevant Act said that the statutory time limit for a claim was 6 weeks and subject to that right, the order ‘shall not be questioned in any legal proceedings whatsoever’

o This is a partial clause rather than a full clause because it does allow a challenge, but only within 6 weeks
o The court upheld the validity of the clause and said they have no jurisdiction to hear the claim

Question 32

Explain the position in relation to the claimant needing to pursue alternative remedies

Answer 32

JR is a last resort. If C has failed to make proper use of an appropriate statutory procedure for obtaining a remedy (i.e. an appeal), the court will generally not exercise its discretion to allow an application for JR.

Question 33

Give an overview of the procedure to bring a judicial review claim

Answer 33

1. pre-action protocol
2. permission stage
3. substantive hearing

Question 34

Explain the pre-action protocol stage

Answer 34

• C should follow the PAP for JRs
• This involves sending a LBA giving the decision maker 14 days to reconsider
• The courts will take into account any failure to follow the PAP
• However, C does not have to follow it if the matter is urgent or if there is a time limit of less than 3 months

Question 35

When does a claimant not need to follow the pre-action protocol?

Answer 35

C does not have to follow it if the matter is urgent or if there is a time limit of less than 3 months

Question 36

What is the minimum time scale for response to a pre-action protocol letter?

Answer 36

14 days

Question 37

What will the court consider at the permission stage?

Answer 37

o Whether C has standing;
o If the claim has been bought in sufficient time; and
o Whether or not the improper conduct complained of resulted in a substantially different outcome for C (s31(c) SCA 1981)
 i.e. if C would be in the same position regardless of the improper conduct, then permission is unlikely to be granted
 The court can disregard this latter point in cases of exceptional public interest

Question 38

What happens at the substantive hearing stage?

Answer 38

The hearing is usually confined to points of law as the facts are rarely an issue

Question 39

What must the claim form state and include?

Answer 39

It must state that C is requesting permission to proceeding with a JR and remedy(ies) sought

It must state/include a detailed statement of facts and grounds and include supporting evidence

Question 40

What happens if the claim is contested?

Answer 40

The defendant should respond to the claim form, file an AoS within 21 days and summary grounds of response

Question 41

Who is the claim form served on?

Answer 41

The defendant and any interested party

Question 42

How is the permission decision often taken?

Answer 42

On the papers

Question 43

What is the nature of judicial review remedies?

Answer 43

They are discretionary.

In effect, this means C may be able to prove D has acted improperly, but it is up to the court whether or not to grant a remedy

Question 44

When must the court refuse a remedy? What is the exception to this?

Answer 44

S31(2A) SCA 1981 - the court must refuse a remedy if it is highly unlikely the outcome for C would not have been substantially different irrespective of the decision.

This can be disregarded for reasons of exceptional public interest

Question 45

What types of remedies are available to the court?

Answer 45

Public law and private law remedies (public is more common)

Question 46

What is a prerogative and non-prerogative order?

Answer 46

Prerogative orders are the public law orders available in JR proceedings.

Non-prerogative orders are the private law orders available in JR proceedings.

Question 47

What are the prerogative orders?

Answer 47

o Quashing orders
o Prohibiting orders
o Mandatory orders

NB: these are only available against public bodies

Question 48

What are the non-prerogative orders?

Answer 48

o Declaration
o Injunction
o Damages

Question 49

What is a quashing order and what is its effect?

Answer 49

The decision of the public body is quashed. This means the decision is nullified.

The court does not usually substitute its own decision, the decision is usually remitted back to the DM (who could in theory make the same decision again).

Question 50

What must the court consider when making a quashing order?

Answer 50

o The nature and circumstances of the relevant defect
o Interests or expectation of the person who would benefit from / relied upon the quashing of the decision

Question 50

What forms can a quashing order take?

Answer 50

o It’s normal form
o It can be suspended
o It can be prospective only

Question 51

What is the effect of a quashing order being suspended?

Answer 51

it is suspended until a specified date to give the DM time to put the unlawful act right. If it does not do so within the timeframe then the quashing order becomes effective

Question 52

What is an example of a suspended quashing order and its effect?

Answer 52

The court finds a decision by a public body to create a regime for issuing certain licenses [sic] to be invalid.

This does not prevent the court from issuing a quashing order which is suspended for 30 days on condition that no new licenses are issued.

This means that licenses issued already would be treated as valid for the 30 days. A person who had been issued a license would need to prepare for that license to be invalid, but could continue to rely on it for the 30 days.

The public body would also have time to put in place transitional arrangements, set up a new licensing regime, or take any other action considered necessary.

Question 52

What is meant by a quashing order being prospective only?

Answer 52

the order only renders the decision void from the time of the judgment onwards. It does not invalidate any past decisions.

Question 53

What is an example of where a prospective only quashing order might be appropriate?

Answer 53

A public body has set up a scheme pursuant to which it has made thousands of small payments to individuals.

If a court were to find the scheme unlawful, it would cause considerable administrative inconvenience if the public body had to re-open all the payments it had made pursuant to the scheme.

As the amount paid to each individual concerned was modest, this would cause a considerable burden with little corresponding benefit.

Question 54

What is a prohibiting order?

Answer 54

This stops a public body acting beyond its powers. These are quite rare as C’s usually opt for an injunction.

Question 55

What is a mandatory order?

Answer 55

This will enforce performance of a public body to carry out its duties required by law i.e. if a public body has refused to consider an application

Question 56

What is a declaration and what is its effect?

Answer 56

This is a court order than confirms the legal position or rights or parties

It doesn’t change the legal position or rights and can be ignored without any legal sanction

Question 57

What is an example of a declaration

Answer 57

Royal College of Nursing v Department of Health and Social Security [1981] - a government circular asserted that nurses could lawfully undertake part of a termination without a doctor’s supervision. C’s guidance did not suggest this, as such C sought a declaration to confirm to that the circular was wrong in law as it was desirable for nurses and the public that the correct legal position was established. A quashing order wouldn’t have been appropriate because there was no decision to quash.

Question 58

What does an injunction do?

Answer 58

This stops a person or body from taking illegal action

Question 59

What form can an injunction take?

Answer 59

Interim or final basis

An interim injunction may be useful in deportation cases i.e. an interim injunction to prevent an asylum seeker being deported pending JR of the lawfulness of the decision to deport them

Question 60

When can damages be awarded?

Answer 60

S31(4) SCA 1981  damages can be awarded if:
o C is seeking other relief; and
o They would have been awarded in a civil claim (this means they must also have a private law cause of action i.e. negligence or breach of contract)