Nature and process of judicial review

Question 1

What are the courts concerned with in judicial review?

Answer 1

whether decision has been correctly made and implemented according to law

Question 2

What are the five preliminary issues that need to be considered before a judicial review claim can be commenced?

Answer 2

Amenability
Procedural exclusivity
Standing
Time limits
Ouster clauses

Question 3

When will a body normally be subject to judicial review?

Answer 3

Power derived from statute

Question 4

How was the scope of amenability to judicial review broadened?

Answer 4

Amenable if exercising public law function or
functions have public law consequences

Question 5

When will regulatory authorities be amenable to judicial review?

Answer 5

if functions have public and governmental character

Question 6

What regulatory authorities may not be amenable to judicial review?

Answer 6

sporting and religious regulation

Question 7

How may an authority contract out of amenability to judicial review?

Answer 7

power is purely contractual and not subject to statutory controls

Question 8

What does procedural exclusivity for judicial review mean?

Answer 8

Challenging public law decisions in any other way is abuse of process of court

Question 9

What are the exceptions to procedural exclusivity?

Answer 9

1. Neither party objects to use of private law procedure
2. Mixed claims: involve private and public law

Question 10

When is standing given for judicial review?

Answer 10

sufficient interest in the matter

Question 11

What is the two stage test laid out in the case of Fleet Street Casuals on standing for judicial review?

Answer 11

1. Initial permission – turn away those with little hope and vexatious litigants
2. Full hearing – strength of case on merits, considering proximity of applicant’s connection

Question 12

What types of groups may be given standing in certain conditions for judicial review?

Answer 12

• associations (if all individuals have sufficient interest)
• pressure/interest groups
• concerned citizens (if no other better placed challengers)

Question 13

What is the time limit for judicial review?

Answer 13

a) Promptly
b) No later than 3 months after grounds arose

Question 14

What is the presumption on ouster clauses ousting judicial review?

Answer 14

Presumption = Parliament does not intend to exclude judicial review

Question 15

When might an ouster clause regarding judicial review be enforced by the courts?

Answer 15

time limit ouster clause

Question 16

Is there an absolute right to bring a judicial review claim?

Answer 16

No must apply for court permission

Question 17

Will the court allow a claim for judicial review if there are alternative remedies possible?

Answer 17

No

Question 18

What is the procedure for bringing a judicial review claim?

Answer 18

1. Ex parte application for permission
2. Permission granted if sufficient interest + arguable case

Question 19

What are the remedies available for judicial review?

Answer 19

• Quashing order
• Prohibitory order
• Mandatory order
• Declaration
• Injunction
• Damages

Question 20

What is a quashing order?

Answer 20

invalidates decision

Question 21

What is a prohibitory order?

Answer 21

Prevents body from acting/continuing to act

Question 22

What is a mandatory order?

Answer 22

compels body to perform public law duty

Question 23

What is a declaration?

Answer 23

court declares legal position or rights of parties

Question 24

When will damages be awarded for judicial review?

Answer 24

• could have been awarded in private law or
• breached rights under HRA

Question 25

What is the nature of remedies for judicial review?

Answer 25

Discretionary

Question 26

What are the grounds for judicial review?

Answer 26

• illegality
• unreasonableness
• procedural impropriety
• legitimate expectation