lecture 3 and 4

Question 1

R (Beer) V Hampshire Farmers’ Markets Ltd 2004

Answer 1

• local council (PA) set up farmers markets and ran for many years, being successful.
• then they set up a company to run the market, privtisation, but still had a level of support from the council.
• fish farmer, Beer, then had his liscence to sell fish taken off him.
• he brought a claim of judicial review against the company
• HELD : public element and connections w/a PA both satisfied.

Question 2

obtaining leave/permission to bring a JR claim..

Answer 2

Lord Diplock: court looking to see if the claimant has an arguable case: looking at the substance/time etc

WRITTEN PROCESS
C fills in a claim info form filling out the arguments

Question 3

two stage process of bringing a claim of JR:

Answer 3

1. PERMISSION: be allowed to bring your case

2. argue the case within the court: can only do so/permission

Question 4

permission is required

Answer 4

The court’s permission to proceed is required in a claim for judicial review whether started under this Section or transferred to the Administrative Court.

Question 5

no permission?

Answer 5

• A single judge will look at documentation whether to mark permission or not
• 54 (12) if admin court judge grants permission, then case goes on. If judge refuses (doesn’t have an arguable case or no standing) then outlined why judge is refusing persmission. Or judge instad of refusing persmission, can suggest a cost to pay or other conditions. Alternatively can refuse on other grounds, such as natural justice
• Refused permission, grants on limited grounds
• 54 (12) makes clear that a request for a hearing isn’t an appeal, but in practice if granted on permission for limited grounds or judge refuses, claimant can bring a hearing

Question 6

no merit?

Answer 6

no claim

case:
R (Grace) v Secretary of State for the Home Dept [2014]

Question 7

R (Grace) v Secretary of State for the Home Dept [2014]

Answer 7

• Foreign national, allowed entry to visit UK as a tourist. Overstayed by 10 years
• Home Sec issued deportation
• She raised JR claim, to rely on convention rights and argued deportation was a violation in respect to her family life
• Found no basis for this argument, she couldn’t assert the right to family life
• COA accepted that argument after case was appealed
• This shows that if on paperwork someone puts forward a claim that is bound to fail, admin court judge will certify that

Question 8

amount of applications w/no merit jan-sept 2018?

Answer 8

30%

Question 9

new subsections…

Answer 9

• Senior Court Act s31 (3C) When considering whether to grant leave to make an application for judicial review, the High Court—
• (a) may of its own motion consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred, and
• (b) must consider that question if the defendant asks it to do so.
• (3D) If, on considering that question, it appears to the High Court to be highly likely that the outcome for the applicant would not have been substantially different, the court must refuse to grant leave.
• People raising miner technical challenges are likely to fail

Question 10

exclusivity of JR cases

Answer 10

•	When law commission 1976, expressed clearly that application for JR process should not be exclusive way to bring JR claims 
•	Confirmed by 54
54.2 When this Section  must be used
•	The judicial review procedure must be used in a claim for judicial review where the claimant is
•	seeking—
•	(a) a mandatory order;
•	(b) a prohibiting order;
•	(c) a quashing order;

Question 11

54.3 When this Section may be used

Answer 11

(1) The judicial review procedure may be used in a claim for judicial review where the
claimant is
seeking—
(a) a declaration; or
(b) an injunction.

• 54 3 makes it an option, discretionary

Question 12

lawyers began too…

Answer 12

advise clients to go for private law remedy instead of JR

Question 13

O’Reilly v Mackman [1983] 2 AC 237

Answer 13

• Prisoners subject to disciplinary punishments
• Prisoners throught disciplinary proceedings were unfair
• Lawyers to circumvent AJRm instead brought private law claims to seek injunctions and deprivations against prison authorities
• Refused to allow claimants to bring private law rights against public authorities unless AJR used. The whole point was to set up a new process, designed by authorities for these sort of claims.
• Lord Diplock: “It would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Ord 53 for the protection of public authorities”. (The Exclusive Principle).
• judges upheld argument by lawyers.
• ‘Exclusive principle’ – if you want to assert public law rights against public authorities, post 1983 must now use AJR. Must go through 2 stage process, which is designed to protect public authorities against unfair claims
• Since 1983, if you want to assert public law rights against public authorities, must use AJR

Question 14

Lawyers ignoring exclusive principles

Answer 14

Trim v North Dorset District Council [2011] 1 WLR 1901
• Trim was a property owner in dispute with council. Statutory authority considered Trim as acting in breach of paying legislation and enforced action against him
• Trim brought a private law action instead of AJR.
• Applied wording of Lord Diplock, should’ve used AJR. Therefore case is struck out
• Example that in recent years, you have to use AJR procedure, otherwise claim is struck out

Case law considered whether O’Reilley principle apply

Question 15

When principle does not apply

Answer 15

• When a claimant is asserting private law rights albeit against a public authority
Davy v Spelthorne BC [1984] AC262.

• Concerned tort rights
• Davy a business owner in conflict with planning authority. Davy sued local planning authority for tort of negligent misstatement.
• On procedural grounds, brought up to HOL
• HOL found in favour of Mr Davy – looked at wording of Lord Diplock, that Davy was asserting tort rights, of negligent misstatement, which is a private law right
• Therefore if asserting tort rights against public authorities, not bound to use AJR

Question 16

Clark v University of Humberside [2000] 1 WLR 1988

Answer 16

• New university as COA found the new university was less extensive than old universities
• 3 years after she graduated, began legal proceedings about her degree classification. Argued she was misclassified in her degree, and decided this 3 years after graduating
• Instead of bringing JR claim, brought a private law proceeding based in contract. She argued that her degree was misclassified in regard to breaching contract with university
• Uni argued they were a public authority
• COA found in favour of Clark. Contractual rights not public law rights. She was asserting private rights, so could use private law proceedings

overturned in…
Roy v Kensington & Chelsea FPC [1992] 2 All ER 705.

Question 17

Roy v Kensington & Chelsea FPC [1992] 2 All ER 705.

Answer 17

• Claimant was a GP who had a legal relationship with the NHS
• Detailed legal rules governing this relationship were laid down in statutory rules
• Relationship between Dr Roy and local NHS body detiorated and NHS body came to the view that Dr not providing adequate services to NHS. NHS body reduced their payment to DR Roy
• Roy disputed this reduction and wanted full payment. He brought a private law proceedings against NHS, with the legal basis on the precise statutory rules of the relationship between the GP and NHS bodies
• NHS sought to raise the defence that this was an exclusive principle case. It was based on statutory right provisions against a public authority
• HOL: found Dr Roy, although rights asserted was based on statutory provisions, these statutory rights were considered as private law rights. This is because they were so precise about their relationship, as they were almost equivalent to a private law contract
• Very precise statutory provisions can be analogous to private law rights, and not subject to exclusive principle (and AJR)

Question 18

Steed v Secretary of State for the Home Department, [2000] 3 All ER 226.

Answer 18

• National tragedies
• 1996 village Dunblane massacre a man shot dead 7 pupils and then killed himself. He had no connection to school or pupils. Was discovered that the man had had guns and full licenses to those hand guns. He belonged to a local shooting club
• UK parliament then decided to ban any private person from having a handgun – firearms amendments act 1997. This recognised that some people at that time had hand guns, and the act laid down statutory rules for the payment of compensation for the people who had lawfully owned hand guns
• Steed until that act, had licence to a hand gun. He handed over his guns and wanted compensation. He was yet to receive compensation.
• After 4 months, Steed brought a private law action against police. Private action included claim that under statutory rules, he was entitled to specific amounts of compensation for his gun and ammunition. Due to delay, he claimed he should also get interest
• Lawyers of home sec argued he claimed statutory rights so should be a public law right. His lawyers argued extension of the NHS case, that it’s an analogous situation that the individual had very precise statutory rights .
• HOL accepted Stead’s argument, that it was precise statutory rights to only a certain number of individuals. If home sec didn’t pay statutory amount, then interest would need to be paid
• Roy case not just a one off – precise statutory rights can be enforced in private law rights
• Contract rights, tort rights, statutory rights specific can all be treated in private law cases

Question 19

Defence or Collateral Challenge Situation

Answer 19

• In a defence, you’re using public law rights as a defence. Can use public law rights as a defence in civil and criminal cases

Question 20

Civil proceedings

Answer 20

• One is being sued by a public authority
• Issue of whether we, the defendant, could raise public law rights as a defence against the case being brought against us

Question 21

Wandsworth LBC v Winder [1985] AC 461.

Answer 21

• Winder was a council tenant in a flat of a local council. Wandsworth council decided to increase rent by a significant amount. Winder was unhappy and refused to increase the level of rent he paid
• Council tried to persuade him but he refused
• Council brought civil proceedings to have him evicted from the flat. Argued tenant was in breach of a tenancy agreement by not paying required rent
• Winder (def) sought to raise a public law defence. Argued the council had acted unlawfully, looking at discretion. The council refused discretion by putting up rent. He argued that was unlawful in terms of public law, and council had no right to evict him
• HOL: decided in favour of Winder. They distinguished situation. Looking at Diplock’s exclusive principle, about individuals bringing public law claims against public authorities. Winder didn’t want to bring proceedings, he was being sued. This was an entirely different situation. If individual is defendant, you’re not governed by the exclusive principle. Ruled Winder could raise public law rights when being sued by public authorities. If you’re being sued by public authorities, can raise public law defences

Question 22

Criminal proceedings

Answer 22

• If you’re a def being prosecuted by a public authority, can you raise public law rights as part of criminal proceedings?

Question 23

Boddington v British Transport Police [1998] 2 All ER 203

Answer 23

• Issues of public bans on smoking
• Transport act 1962 provided that a special form of delegated legislation will be issued under transport act regulating transport. Delegated legislation called ‘making of by laws’
• By Law 20 – if there was a ‘no smoking’ sign in a carriage, it became a criminal offence to smoke in that carriage.
• 1993 the train operator in SE England used a survey. Found the majority of train travellers prefer smoking-free trains. Train operator decided to ban smoking on all trains in SE England, through a no smoking sign in all carriages of all SE trains
• Boddington was travelling and smoking. Other travellers complained, he refused to stop smoking. Train guard came but Boddington persisted. Contract British transport police who prosecuted Boddington for breaching by law 20
• Magistrates, Boddington sought to raise a public law defence. Argued transport police was acting ultra vires by banning all smoking on those trains. Lawyers argued that in criminal proceedings, can’t raise public law defences.
• HOL: (one of last cases that Lord Chancellor was still involved in judgment).
• Lord Irving LC: “In my judgment only the clear language of a statute could take away the right of a defendant in criminal proceedings to challenge the lawfulness of a byelaw or administrative decision where his prosecution is premised on its validity”.
• In general, for criminal cases, defendants can raise public law defences. They only can’t when statute under which they are being prosecuted specifically rules out bringing a public law defence
• HOL looked at transport act, and nothing in that act that ruled def can’t use public law defence.

Question 24

CONCEPT OF STANDING

Answer 24

• Unique feature of JR cases
• In private law proceedings, nothing similar to standing. If contractual, tort, specific statute right, can bring proceeding
• Assesses whether claimant is allowed to bring JR case
• Single new test of standing – found in s31 (3) of Senior Courts Act: (3) No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates.
• Ambiguous of what a ‘sufficient interest’ is

Question 25

R v IRC ex p National Federation of Self-Employed [1982] AC 617

Answer 25

• 1980’s air national newspapers were still printed on hot metal printing presses, so paper printed on metal type faces.
• Found printers were not paying proper income tax. Seen as casual workers, so newspapers would pay them cash daily. Were given false names, so authorities couldn’t track them down
• If print workers went on strike, through their powerful positions, were able to evade income system
• National federation of self-employed (organisation representing self-employed people and small businesses) upset about deal between print workers.
• National fed believed inland revenue were given print workers a soft deal due to striking power s
• Federation thought that was an unlawful for inland revenue to do a special deal, so brought a JR action against revenue challenging lawfulness of their deal with print workers
• Inland revenue sought to argue that federation did not have a sufficient interest to argue. The agreement concerned the print workers, which the federation did not represent.
• HOL divided. Majority view delivered by Wilberforce. Set out a new legal test: Lord Wilberforce: “it will be necessary to consider the powers or the duties in law of those against whom the relief is asked, the position of the applicant in relation to those powers or duties and to the breach of those said to have been committed.”

Question 26

wilberforce test

Answer 26

1. Powers/duties in law are against the defend
2. Position of applicant in relation to the relations of those powers or those duties. Applicant’s relationship e.g. relationship between federation and decision to challenge inland revenue. Relationship between one income tax payer and inland revenue are confidential, so no right to know others’ income tax affairs. Thus federation trying to challenge somebody else’s’ tax affairs, nothing to do with them. 3rd parties no sufficient interest to challenge them
3. Breach of whether inland revenue have used their discretion.

Question 27

Lord Diplock….

Answer 27

• Notion of sufficient interest is a legal test
• Lord Diplock thought sufficient interest should be applied on case by case basis, not a rule for every case. “…ordinary English words which on the face of them, leave the court an unfettered discretion to decide what in its own good judgment it considers to be a sufficient interest on the part of an applicant in the particular circumstances of the case before it”. Thought it was not necessary to give a legal definition