Legitimate expectation

Question 1

What does legitimate expectation relate to?

Answer 1

• expectation of procedure/benefit
• arising from representation/promise made by public body or
• established practice

Question 2

What are the types of legitimate expectation?

Answer 2

Procedural
Substantive

Question 3

When will procedural legitimate expectations arise?

Answer 3

• Public body promised or represented that procedure will be followed before decision is made
• Established practice for public body to use procedure

Question 4

When will substantive legitimate expectations arise?

Answer 4

Assurance/promise led person to believe they will receive a particular benefit

Question 5

What is the Courts’ approach to assessing legitimate expectation?

Answer 5

1. Has expectation arise?
2. If so, is the expectation legitimate?
3. Has the public body frustrated the legitimate expectation?

Question 6

Who can generate a legitimate expectation?

Answer 6

Public authorities only

Question 7

What are the two ways in which a legitimate expectation can arise?

Answer 7

• express promise
• established practice

Question 8

What are the potential forms of express promise for legitimate expectation?

Answer 8

• specific representation
• contained in policy

Question 9

What are the factors considered when deciding if an expectation is legitimate?

Answer 9

Clarity
Legality
Agents
Knowledge
Reliance

Question 10

How do the courts approach clarity when assessing whether an expectation is legitimate based on a promise?

Answer 10

clear, unambiguous, devoid of qualification and reasonably understood by those who it was made to

Question 11

How do the courts approach clarity when assessing whether an expectation is legitimate based on past practice?

Answer 11

so unambiguous, widespread, well-established and recognised

Question 12

What does legality mean for legitimate expectations?

Answer 12

Must be within the powers of the public authority to fulfil the promise

Question 13

Does a promise need to be made by the person who will be bound by it in legitimate expectation?

Answer 13

No

Question 14

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?

Answer 14

Yes

Question 15

What is the rule for agents regarding legitimate expectations?

Answer 15

Public authority not bound by representation where made by an agent acting outside of their authority

Question 16

What is the general rule for knowledge in legitimate expectation?

Answer 16

must have knowledge of representation/past practice before the decision

Question 17

Is detrimental reliance required for legitimate expectation?

Answer 17

Normally yes but not always

Question 18

Who is the burden of proof on with regards to frustrating a legitimate expectation?

Answer 18

Public authority to prove frustration was lawful

Question 19

What question does the court ask when considering whether a public body has lawfully frustrated a legitimate expectation?

Answer 19

whether there was a sufficient public interest to override the legitimate expectation

Question 20

When will the court find that procedural legitimate expectations have not been unlawfully frustrated?

Answer 20

Compelling public interest reasons

Question 21

How will the courts decide whether a legitimate expectation has been frustrated according to Coughlan?

Answer 21

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’

Question 22

How will the courts approach areas which are the province of the executive in legitimate expectation?

Answer 22

with caution

Question 23

How does proportionality play a role in frustrating legitimate expectations?

Answer 23

Promise/practice may only be denied where it is a proportionate response to their legitimate aim

Question 24

Does proportionality distinguish between procedural and substantive legitimate expectations?

Answer 24

NO