Nature and process of JR

Question 1

What is the purpose of a partial or time limitation clause in legislation?

Answer 1

A partial or time limitation clause in legislation seeks to exclude the jurisdiction of the court once a time limit has expired. It is more restrictive for claimants, but it does not remove access to judicial review entirely.

Question 2

What is the significance of Lord Diplock’s second exception in relation to mixed claims involving public and private law?

Answer 2

Lord Diplock’s second exception recognizes that mixed claims involving both public and private law can arise. It allows litigants asserting a private law right, which incidentally involves the examination of a public law issue, to establish that right through ordinary action.

Question 3

What is the significance of forming a group or company in relation to gaining standing?

Answer 3

Individuals who did not have standing would not gain it just because they formed themselves into a group or a company. This was observed in the context of engineering a status and challenging a minister’s refusal to grant a listing.

Question 4

How does judicial review differ from an appeal?

Answer 4

Judicial review does not involve the courts substituting their own decision for that of the decision maker. Instead, it focuses on whether the decision has been made correctly and can direct that the decision be made again in the correct manner.

Question 5

How do the courts respond to partial or time limitation clauses in legislation?

Answer 5

The courts respond to partial or time limitation clauses by taking them at face value. They are likely to strike out any action brought after the time limit has expired. This approach was reaffirmed by the House of Lords in Smith v East Elloe RDC[1956] 1 All ER 855 and by the Court of Appeal in R v Secretary of State for the Environment, ex parte Ostler [1977] QB 122.

Question 6

What was the outcome of the case Roy v Kensington and Chelsea and Westminster Family Practitioner Committee (FPC) [1992] 1 AC 624?

Answer 6

In the case of Roy v Kensington and Chelsea and Westminster Family Practitioner Committee (FPC) [1992] 1 AC 624, Dr. Roy, a GP, brought a private action against the FPC claiming breach of contract. The House of Lords held that Dr. Roy had a bundle of private law rights, including the right to be paid for work done, which entitled him to sue for their alleged breach. It was not an abuse of process to proceed with the private action.

Question 7

What is meant by the term ‘amenability’ in the context of judicial review?

Answer 7

Amenability refers to determining whether the decision or action being challenged is appropriate for the judicial review process. Generally, only public law decisions are amenable to judicial review.

Question 8

What is the significance of the Civil Procedure Rule 54.5(3) in relation to time limits for making a claim for judicial review?

Answer 8

Civil Procedure Rule 54.5(3) states that the normal time limit does not apply when any other enactment specifies a shorter time limit for making the claim for judicial review. This provision reinforces the importance of adhering to specific time limits set by other enactments.

Question 9

How did the court determine standing in the case Ex parte Greenpeace?

Answer 9

In the case Ex parte Greenpeace, the court took into account the national and international standing of Greenpeace, its genuine concern for the environment, and the fact that it had 2,500 supporters in Cumbria. The court believed that without Greenpeace’s involvement, the people it represented might not have had an effective way of bringing the disputed issues to court.

Question 10

What is the influence of the Civil Procedure Rules on the courts’ approach to procedural exclusivity?

Answer 10

The Civil Procedure Rules have influenced the courts’ approach to procedural exclusivity. The case of Clark v University of Lincolnshire and Humberside [2000] 3 All ER 752 provides an example where the Court of Appeal held that even though the dispute concerned issues of public law, the claimant was allowed to pursue the matter by means of an action in contract, rather than through judicial review.

Question 11

What factors can affect whether and what relief is granted by the court in a judicial review?

Answer 11

Time limit factors can affect whether and what relief is granted by the court in a judicial review. The courts are unlikely to uphold a total ouster clause, but they are likely to uphold a partial ouster clause that abridges the limitation period.

Question 12

What are the preliminary requirements for pursuing a judicial review claim?

Answer 12

Before pursuing a judicial review claim, there are five main preliminary issues that need to be considered: amenability, procedural exclusivity, standing, time limits, and ouster clauses (where relevant). These requirements determine whether a claim can be pursued and the appropriate procedure to follow.

Question 13

What factors contributed to the decision to grant standing in the case Ex parte World Development Movement?

Answer 13

In the case Ex parte World Development Movement, the court granted standing to the World Development Movement (WDM) based on several significant factors. These factors included the importance of vindicating the rule of law, the likely absence of any other responsible challenger, the nature of the breach of duty, and the prominent role of the applicants in giving advice, guidance, and assistance on overseas aid.

Question 14

What is the significance of the case of R v Panel of Take-overs and Mergers, ex parte Datafin [1987] QB 815?

Answer 14

The case of R v Panel of Take-overs and Mergers, ex parte Datafin [1987] QB 815 is an important authority in understanding the evolving approach to amenability in judicial review. It established that decisions taken by bodies performing ‘public law functions’ could be subject to judicial review, regardless of the source of their power.

Question 15

How do self-regulatory authorities fit into the concept of amenability in judicial review?

Answer 15

Self-regulatory authorities are generally considered to be exercising public functions if the matter in question has the necessary public character. Decisions of self-regulatory authorities can be subject to judicial review if they meet the criteria of performing public law functions or having public law consequences.

Question 16

What is the procedure for bringing a judicial review claim?

Answer 16

The procedure for bringing a judicial review claim involves two stages. Firstly, an ex parte application for permission (previously called ‘leave’) must be made to the Administrative Court or relevant tribunal. Secondly, there is a full inter partes hearing where applicants present the grounds to challenge the decision.

Question 17

What is the standing requirement for bringing a judicial review application?

Answer 17

A necessary pre-condition for bringing a judicial review application is that the particular applicant has standing, also known as locus standi. The Senior Courts Act 1981, s. 31(3) stipulates that leave of the High Court must be obtained, and the court will only grant leave if it considers that the applicant has sufficient interest in the matter to which the application relates.

Question 18

What is the ‘but for’ test in determining amenability to judicial review?

Answer 18

The ‘but for’ test is used to determine amenability to judicial review. It considers whether, if the self-regulatory authority or body in question had not already been in existence, Parliament would have needed to intervene and regulate the activity. If so, the decision may be subject to judicial review.

Question 19

What remedies can an applicant seek in a judicial review?

Answer 19

An applicant for judicial review may seek one or more of the following six remedies: (a) Quashing order (quashes’ a decision that the court has found to be unlawful), (b) Prohibitory order (will order a public body to refrain from acting beyond its powers), (c) Mandatory order (designed to enforce the performance by public bodies of the duties they are by law required to carry out), (d) Declaration (a court order confirming, but not changing, the legal position or rights of
the parties), (e) Injunction, and (f) Damages. The first three remedies used to be known collectively as the ‘prerogative orders’ before they were renamed in 1998.

Question 20

What are some examples of claimants who may be granted standing in a judicial review application?

Answer 20

In addition to individuals or organizations directly affected by a decision, associations, pressure and interest groups, and concerned citizens may be granted standing in a judicial review application. The courts generally allow association standing when there is a logical connection between the association and the decision under challenge. Pressure and interest groups may also be granted standing to bring matters of communal interest to the attention of the court.

Question 21

What was the basis for granting standing to Rees-Mogg in the case Ex parte Rees-Mogg?

Answer 21

In the case Ex parte Rees-Mogg, a former editor of The Times newspaper was held to have standing to challenge the signing of the Treaty of European Union (‘the Maastricht Treaty’) because of his sincere concern for constitutional issues. The judiciary emphasized the importance of allowing public law decisions to be challenged, even if the connection between the individual and the issue is not personal or immediate.

Question 22

What is the discretionary nature of remedies in judicial review?

Answer 22

The remedies that the court may grant in judicial review are discretionary in nature. This means that the court has the power to consider the individual interest in the matter and balance it against the wider public interest when deciding on the appropriate remedy.

Question 23

How does the government’s policy of ‘contracting out’ services to private companies impact amenability to judicial review?

Answer 23

The government’s policy of ‘contracting out’ services to private companies complicates the issue of amenability to judicial review. The nature of the relationship between the parties and the ongoing statutory controls are factors that determine whether a decision is amenable to judicial review.

Question 24

What are the time limits for filing a judicial review application?

Answer 24

According to CPR Part 54, a claim must be filed promptly and no later than 3 months after the grounds to make the claim first arose. However, the time limit can be shorter in certain cases, such as planning decisions taken after 1 July 2013 and decisions relating to public procurement.

Question 25

When will the court refuse permission to bring a judicial review claim?

Answer 25

The court may refuse permission to bring a judicial review claim if there is a suitable alternative remedy available or if alternative remedies have not been exhausted. Such alternatives might include a statutory right of appeal, internal complaints or appeal procedures, or a complaint to an ombudsman.

Question 26

What is the principle of procedural exclusivity in judicial review?

Answer 26

The principle of procedural exclusivity, established in the House of Lords decisions of O’Reilly v Mackman [1983] 2 AC and Cocks v Thanet DC [1982] 3 All ER 1135, states that judicial review is the exclusive procedure for challenging public law decisions. Private law matters are dealt with by ordinary action, and bringing a public law challenge in any other way would be considered an abuse of process.

Question 27

Can the time limit for filing a judicial review application be extended?

Answer 27

The time limit for filing a judicial review application cannot be extended by agreement between the parties. However, it can be extended by the court pursuant to its general power under CPR Part 3. The court will consider whether there has been undue delay and whether granting the relief sought would cause substantial hardship or be detrimental to good administration.

Question 28

What is the nature of a public law decision and when is it amenable to judicial review?

Answer 28

A public law decision is a decision, action, or failure to act in relation to the exercise of a public function. A decision will be amenable to judicial review if it is a public law decision. This is satisfied when a classic public body exercises powers derived from statute or secondary legislation, or the royal prerogative. In other cases, it depends on examining the nature of the power and considering factors identified in cases involving self-regulatory bodies and private companies contracted by public bodies.

Question 29

What are the exceptions to the principle of procedural exclusivity in judicial review?

Answer 29

There are two exceptions to the principle of procedural exclusivity. The first is when neither party objects to the use of private law procedure. The second is when the contested decision is collateral to the main issue.

Question 30

What was the ruling in the case of O’Reilly v Mackman and what procedural rule did it establish?

Answer 30

The case of O’Reilly v Mackman established a general procedural rule that judicial review was the exclusive procedure for challenging public law decisions. Bringing a public law challenge in any other way would amount to an abuse of process.

Question 31

What is the purpose of an ex parte application for permission in a judicial review claim?

Answer 31

An ex parte application for permission in a judicial review claim is made to the Administrative Court or relevant tribunal. It is the first stage of the procedure and determines whether the applicant will be granted permission to proceed with the claim. The applicant must demonstrate standing, make the application within time or provide a good reason for delay, and present an arguable case.

Question 32

What is a total ouster clause and how do the courts view them?

Answer 32

A total ouster clause is a legislative provision that appears to completely exclude the jurisdiction of the court to conduct a judicial review. Such clauses are rare, and the courts are generally hostile to ouster clauses as they challenge the rule of law. The modern judiciary has a strong presumption that Parliament does not intend to exclude judicial review.

Question 33

What was the outcome of the case Anisminic v Foreign Compensation Commission?

Answer 33

In the case Anisminic v Foreign Compensation Commission, the House of Lords held that the ouster clause did not prevent Anisminic from challenging the decision of the Foreign Compensation Commission. The court found that as the decision was illegal, it was not a determination for the purposes of the ouster clause.

Question 34

What is the significance of the case of R v Servite Houses & L.B. Wandsworth, ex parte Goldsmith [2001] LGR 55?

Answer 34

The case of R v Servite Houses & L.B. Wandsworth, ex parte Goldsmith [2001] LGR 55 provides an example of a housing association not being found to be exercising a public function and therefore not subject to judicial review. The source of the association’s power was purely contractual, and they were not subject to ongoing statutory controls.

Question 35

What is the significance of avoiding litigation wherever possible in judicial review?

Answer 35

Avoiding litigation wherever possible is of paramount importance in judicial review. The courts should not permit proceedings for judicial review to proceed if a significant part of the issues between the parties could be resolved outside the litigation process. This emphasizes the importance of exploring alternative remedies and resolving disputes without resorting to litigation.

Question 36

What principle influenced the approach to total ouster clauses in the cases Anisminic and Privacy International?

Answer 36

The principle of the rule of law heavily influenced the approach to total ouster clauses in the cases Anisminic and Privacy International. The courts held that explicit wording was required to exclude the court’s jurisdiction, and they emphasized the importance of allowing judicial review as a basic right of all citizens.

Question 37

What factors does the court consider when deciding whether to grant standing?

Answer 37

When deciding whether to grant standing, the court considers various factors, including the presence of other directly interested challengers, the connection between the individual and the issue, and the potential substantial hardship or prejudice to any person or detriment to good administration. The court’s decision will depend on the specific facts of the case.

Question 38

Test for standing?

Answer 38

An individual or organisation must have ‘sufficient interest in the matter to which the application relates’ (s. 31(3) SCA).

Question 39

True or false: Self-regulatory authorities will always be found to be exercising public functions and their decisions will therefore always be amenable to judicial review.

Answer 39

False
This overstates the position. In some cases involving self-regulatory bodies, such as the Jockey Club in ex parte Aga Khan, the courts have determined that where the issue in question is of a private nature, judicial review will not be the appropriate forum for its determination.

Question 40

True or false: The modern approach of the courts to the procedure required to challenge a public law decision is less preoccupied with the procedure itself and more concerned with whether the protections afforded to public bodies by judicial review have been disregarded.

Answer 40

True

Question 41

How does the court assess standing?

Answer 41

In considering the question of whether an applicant has ‘sufficient interest’, the court will take into account the connection the applicant has to the decision they wish to challenge.

Question 42

Time limit for judicial review?

Answer 42

The time limit for bringing a judicial review claim is ‘promptly’ and, in any event, no later than three months after the ground to make a claim first arose. Consequently, permission to bring a judicial review can sometimes be refused if the court considers that there was ‘undue delay’ in filing the claim, even though this was done within three months.

Question 43

True or false: The Civil Procedure Rules include shorter time limits for challenging planning decisions and public procurement decisions.

Answer 43

True

pursuant to the Civil Procedure (Amendment No 4) Rules 2013 the time limits are now six weeks and 30 days, respectively, for decisions made in these areas.

Question 44

You have assisted your supervisor in preparing a judicial review application for a client company. The client is challenging a local authority decision, made under the ‘Planning Acts’, which refused planning permission to extend the business park it owns. Your supervisor has asked you to call the Managing Director to give him some basic information about the application. Your supervisor tells you that the client company has a strong case.

Which one of the following statements contains the correct advice?

The application should be filed promptly, and within the relevant time limit. There should not be any issues with standing, as the client company has a strong case as it is directly impacted by the decision. It is likely that permission will be granted and if the claim ultimately succeeds, the court will make a mandatory order compelling the local authority to remake the decision and grant the planning permission to the claimant.

The application should be filed within the six-week time limit, whereupon the court will decide whether to grant the MD’s company permission to bring the judicial review. There will not be an issue concerning standing as the client company is directly affected by the decision and has a strongly arguable case. If the claim is ultimately successful, the court is likely to grant a quashing order, which means that the local authority will have to remake the decision.

The application should be filed promptly and within the relevant time limit, whereupon there will be a full hearing between the parties so that the court can determine the final outcome of the claim.

The application should be filed as soon as possible and, in any event, within the three-month time limit whereupon the court will decide whether to grant the client company permission to bring the judicial review. There will not be an issue concerning standing as the client is directly affected by the decision and has a strongly arguable case. If the claim is ultimately successful the court is likely to grant a quashing order, which means that the local authority will have to remake the decision.

The application should be filed as soon as is possible and within the relevant time limit. Although the client company has a strong case, there might be an issue with standing, as the client is a company rather than an individual person. The court will therefore have to consider standing very carefully as part of the permission application.

Answer 44

The application should be filed within the six-week time limit, whereupon the court will decide whether to grant the MD’s company permission to bring the judicial review. There will not be an issue concerning standing as the client company is directly affected by the decision and has a strongly arguable case. If the claim is ultimately successful, the court is likely to grant a quashing order, which means that the local authority will have to remake the decision.

Question 45

Standing?

Answer 45

• Claimants must have ‘sufficient interest’ to have the standing to bring claims.
  ∘ Claimants who are directly affected by a decision have little difficulty in showing this.
  ∘ Pressure groups need to show they have a genuine interest in the proceedings and
  are not ‘busy-bodies’.

Question 46

Who can a claim for JR be brought against?

Answer 46

Public body

Question 47

Timing and consequences of delay for JR?

Answer 47

Claimants should apply for permission for judicial review promptly, without undue delay and within three months of the date of the decisions affecting them. A claimant who waits until the end of the three months before lodging a claim runs the risk of undue delay. Courts have the discretion to extend the time limit of three months where good reasons exist.

Question 48

Courts’ view on outster clauses?

Answer 48

Ouster clauses sometimes purport to preclude challenges to the decisions of a decision-maker.
∘ The courts have found ways of circumventing legislative attempts to exclude their judicial review jurisdiction and have held that complete ouster clauses will not protect decisions that were never valid (‘nullities’).
∘ The courts are willing to uphold partial ouster clauses that do not attempt to exclude judicial review, but merely shorten the time limit for bringing claims.

Question 49

Test to assess whether it is a public body?

Answer 49

The first part of the test is the source of power test. Under this, if the body making a decision has been set up under statute or under delegated legislation, or derives its power under a reviewable prerogative power, then it is a public body.

If this part of the test is not satisfied then the court goes on to apply the second part, the nature of power test. Under this, if the body making the decision is exercising public law functions, it may still be a public body.