Legitimate expectation Flashcards
What does legitimate expectation relate to?
- expectation of procedure/benefit
- arising from representation/promise made by public body or
- established practice
What are the types of legitimate expectation?
Procedural
Substantive
When will procedural legitimate expectations arise?
- Public body promised or represented that procedure will be followed before decision is made
- Established practice for public body to use procedure
When will substantive legitimate expectations arise?
Assurance/promise led person to believe they will receive a particular benefit
What is the Courts’ approach to assessing legitimate expectation?
- Has expectation arise?
- If so, is the expectation legitimate?
- Has the public body frustrated the legitimate expectation?
Who can generate a legitimate expectation?
Public authorities only
What are the two ways in which a legitimate expectation can arise?
- express promise
- established practice
What are the potential forms of express promise for legitimate expectation?
- specific representation
- contained in policy
What are the factors considered when deciding if an expectation is legitimate?
Clarity
Legality
Agents
Knowledge
Reliance
How do the courts approach clarity when assessing whether an expectation is legitimate based on a promise?
clear, unambiguous, devoid of qualification and reasonably understood by those who it was made to
How do the courts approach clarity when assessing whether an expectation is legitimate based on past practice?
so unambiguous, widespread, well-established and recognised
What does legality mean for legitimate expectations?
Must be within the powers of the public authority to fulfil the promise
Does a promise need to be made by the person who will be bound by it in legitimate expectation?
No
Can an expectation still be legitimate if the public authority makes it under the mistaken belief that they have a statutory duty to do so?
Yes
What is the rule for agents regarding legitimate expectations?
Public authority not bound by representation where made by an agent acting outside of their authority
What is the general rule for knowledge in legitimate expectation?
must have knowledge of representation/past practice before the decision
Is detrimental reliance required for legitimate expectation?
Normally yes but not always
Who is the burden of proof on with regards to frustrating a legitimate expectation?
Public authority to prove frustration was lawful
What question does the court ask when considering whether a public body has lawfully frustrated a legitimate expectation?
whether there was a sufficient public interest to override the legitimate expectation
When will the court find that procedural legitimate expectations have not been unlawfully frustrated?
Compelling public interest reasons
How will the courts decide whether a legitimate expectation has been frustrated according to Coughlan?
a) where expectation is for public authority to bear in mind previous policy/ representation = Wednesbury unreasonableness
b) Where procedural expectation = comply unless overriding reason not to (fairness)
c) Where substantive expectation = whether frustration is so unfair as to amount to ‘abuse of power’
How will the courts approach areas which are the province of the executive in legitimate expectation?
with caution
How does proportionality play a role in frustrating legitimate expectations?
Promise/practice may only be denied where it is a proportionate response to their legitimate aim
Does proportionality distinguish between procedural and substantive legitimate expectations?
NO
