Judicial Review - Procedure and Remedies Flashcards
What are the initial requirements to consider to see if judicial review is the appropriate procedure?
Must be a decision made by a public body on a public law matter
1) Public law matter – JR dealt with by Administrative Court in High Court
Examples:
- Challenges to making of a compulsory purchase order over land
- Challenges to grant or refusal of license
- Challenges to refusal of discretionary financial grants
2) Can only seek judicial review of decisions of public bodies
To determine if a body is a public body, consider the Datafin test:
- Source of power – if set up by statute, delegated legislation or under a reviewable prerogative power, it is a public body
- Nature of power – if first part not satisfied; if body is exercising public law functions, it may still be a public body
Give a summary of all the requirements needed to bring a judicial review claim
Decision made by public body on public law matter
Claimant needs standing
Claim brought within time limit
No ouster clause preventing challenge, or partial clause and limitations met
When will a claimant have standing to bring a claim for judicial review?
Claimants need standing to bring JR claims
Standing = sufficient interest in the matter to which the claim relates
- If personally affected, requirement is satisfied
- Pressure groups can potentially establish sufficient interest – 5 factors:
- The need to uphold the Rule of Law
- The importance of the issue raised
- The likely absence of any other responsible challenger
- The nature of the alleged breach of duty
- The role of the pressure group
What are the relevant time limits for bringing a claim of judicial review?
Claimants seeking JR must bring their claim within set time limits
Important to bring claim ‘without undue delay’
Claim form must be filed within a maximum of 3 months from the date on which the grounds for the claim arose
- For planning acts, this is reduced to 6 weeks – need to avoid delay is key
Courts can extend time limits, but only where there is a good reason
- Remedy may be refused even if it proceeds to a full hearing after time limit
Time limits can also be imposed by an Act of Parliament granting the decision-making powers
What are ouster clauses and how do they work?
These are found within Acts of Parliament and can exclude the right of challenge once a decision has been made by a public body
1) Full ouster clauses
- Allow no right of challenge at all
- However, will not protect decisions that were never legally valid, therefore a decision that adversely affects someone’s interests may be challenged, irrespective of the ouster clause
2) Partial ouster clauses
- Allow some opportunity for challenge, but impose additional restrictions to the ability to raise a challenge, such as a specific time limit for challenge by JR for instance
- Courts more amenable towards partial ouster clauses
If the requirements for bringing a claim are met, what is the procedure for a judicial review claim?
C must ensure compliance with Pre-Action Protocol for JR Claims
- Compliance considered when issue of costs arises
- C must send letter before claim to decision maker
- If no response within 14 days, proceedings should be issued
- Doesn’t have to follow this if time limit is approaching or the matter is urgent
Stage 1 - Permission stage
- Court will consider if C has standing and if the claim has been made in time
- Court will consider if the case has merit
Stage 2 - Substantive stage
- This is a hearing before a judge in the administrative court
What is an important general point about the granting of remedies?
If C can successfully show a decision maker has acted improperly, the court may decide to grant a remedy, but they don’t have to
The award of remedies is discretionary
Remedies for a judicial review claim can be broadly divided into prerogative and non-prerogative orders.
What are prerogative orders?
Prerogative orders – main court orders C can seek; available against public bodies only
- Quashing order – order that quashes the unlawful decision; means the decision has no legal effect and is nullified and decision maker must decide again
- Prohibiting order – orders a public body to refrain from acting beyond its powers
- Mandatory order – compels public bodies to carry out duties required of them by law
Remedies for a judicial review claim can be broadly divided into prerogative and non-prerogative orders.
What are non-prerogative orders?
Non-prerogative orders are private law remedies which can be obtained in JR proceedings
- Declaration of the court – confirms a party’s legal right or position
- Injunctions – same as prohibiting order
- Damages – can be awarded where they would have been awarded in a civil claim - Requires C to have a private law cause of action, such as in contract or tort – not awardable if purely an infringement of public law right
