Legitimate Expectation

Question 1

What is the concept of legitimate expectation?

Answer 1

Where expectation of either a procedure or benefit, arising from a representation or promise made by a public body or established practice carried out by public body may be protect in law

Question 2

What are the primary forms of legitimate expectation?

Answer 2

• procedural legitimate expectation
• substantive legitimate expectation

Question 3

When may procedural legitimate expectation arise?

Answer 3

• where a public body has promised or represented that a particular procedure will be followed before a decision is made
• where there has been an established practice for the public body to use a particular procedure

Question 4

When may substantive procedural expectation arise?

Answer 4

Arises where an assurance or promise has led a person to believe that they will receive a particular, tangible benefit

Question 5

If a substantive legitimate expectation is upheld by the court, what will the claimant receive?

Answer 5

The actual benefit

Question 6

What questions will the court ask in assessing legitimate expectation?

Answer 6

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

Question 7

What are the broad ways that legitimate expectation may arise?

Answer 7

• express promise either by specific representation or representation in policy laid down by public body
• established past practice

Question 8

When will the expectation be legitimate?

Answer 8

Will depend on variety of factors

Relevant factors to access include:

• clarity - clear, unambiguous and devoid of relevant qualification
• legality - must be within powers of public authority to fulfil promise
• agency - must be someone authorised to act on behalf of person/body
• knowledge - applicant must have knowledge of the original criteria giving rise to a legitimate expectation (some leeway here)
• reliance - has party detrimentally relied on expectation (not essential requirement)

Question 9

Who bears the burden of establishing that a frustration of a legitimate expectation was lawful?

Answer 9

On the public body seeking to defend itself

Question 10

When will frustration of legitimate expectation be lawful?

Answer 10

Where there is sufficient public interest to override the legitimate expectation eg prevailing national security interests

Question 11

Will policy being changed by decision maker be lawful frustration of legitimate expectation?

Answer 11

In many cases yes - otherwise would result in fettering of policy maker’s discretion.

Court will only interfere where change in policy mounts to unfairness to degree that it warrants their interference

Question 12

What did the court in Ex Party Coughlan determine were the grounds for them assessing whether a legitimate expectation has been lawfully frustrated?

Answer 12

a) where the legitimate expectation is only that the public authority should bear in mind its previous policy or other representation, the court is confined to review it on grounds of Wednesbury unreasonableness

b) procedural legitimate expectation - court will require procedure to be complied with unless overriding reason not to - overriding reason to be assessed on fairness

c) substantive legitimate expectation - question of whether frustration of expectation is so unfair that it amounts to abuse of power. Has to be weighed against any overriding interests relied upon for change of policy