Procedural Limitations on JR

Question 1

Proper approach to time limit issues discussed in Caswell?

Answer 1

i. If an application for leave to apply is not made “promptly” and “within 3 months” undue delay will exist, and the court may refuse leave/relief
ii. Unless it considers there is good reason for extending the period under CPR 3.1(2)but
iii. Even if it considers such good reason exists, it may still refuse leave/relief on either of the two grounds under S.31(6)

Question 2

What is the litmus test for a “seriously arguable” case?

Answer 2

Sharma – the court must be satisfied that there is (i) an arguable ground for JR with a (ii) realistic prospect of success, (iii) without any applicable discretionary bar; the test is a flexible one depending on the nature and gravity of the issue to be argued

Question 3

When will the court generally waive the requirement to exhaust alternative remedies?

Answer 3

i. The alternative remedy is not “equally convenient and effective” (e.g. Shoesmith – compensation in the Employment Tribunal was capped; Calveley – alternative remedy was insufficiently speedy)
ii. The appellate body is not empowered to grant the remedy which is sought or deal with the matter complained of (Leech)

Question 4

Butterworth

Answer 4

d. Acting within 3 months does not conclusively establish that there has been no undue delay, for the requirements to act promptly and within 3 months are cumulative

Question 5

Buglife

Answer 5

Where despite delay C’s claim is brought within 3 months and the delay is referable to a “knowledge gap” in which C had insufficient info to decide whether to bring proceedings, the court is likely to find promptness

Question 6

3 e.g.s of when the court will find delay to be for a good reason and thus exercise its discretion to extend time under CPR 3.1(2)

Answer 6

Exhausting rights of appeal (Cromer Ring), obtaining legal aid (Jackson), not being able to discover the relevant admin decision earlier (World Development Movement) are all good reasons for delay.

Question 7

What is the main consideration for the court in deciding whether to refuse leave/relief under S.31(6)?

Answer 7

The impact which would be felt if the decision were to be reopened (Caswell)

Question 8

Electricity Commissioners

Answer 8

A proceeding which only takes effect upon later confirmation or approval may nevertheless be subject to JR

Question 9

Mordens (quote)

Answer 9

A court will only exceptionally grant JR of a decision taken during the course of a hearing before the hearing has been concluded, for this is not a challenge to an admin decision, but one of admin jurisdiction or procedure and may thus fall afoul of the rule on prematurity and ripeness.

“To come to this court too early is in many cases to come unnecessarily”.

Question 10

Knowsley PCT

Answer 10

the court should not be powerless to prevent An anticipated violation of a right to a fair procedure merely because a right of appeal creates the prospect of later remedying the consequences

Question 11

Royal Borough of Kensington

Answer 11

If the preliminary decision will have a severe impact on the remainder of the proceedings (e.g. here by blocking the main thrust of C’s case as irrelevant) it may be subjected to JR.

Question 12

Gillick - general rule + caveat

Answer 12

General rule - non-statutory guidance issued by administrative bodies to subordinate authorities within their particular field is not subject to JR.

Caveat from RCN - where that guidance provides advice that is erroneous in law and that guidance has had or is likely to have a practical impact on the parties or the public provided that C has locus standi, the court will have jurisdiction to correct the error of law.

Question 13

Burke

Answer 13

The court should be more reluctant to pronounce on hypothetical or academic scenarios to avoid enunciating propositions of principle w/o the benefit of full argument via the adversarial model and thus w/o full appreciation of the implications this will have in practice (since practitioners will usually feel obliged to apply the principles in practice)

Question 14

Lord Slynn, Salem (two egs)

Answer 14

There must be a good reason in the public interest for issuing clear substantive conclusions on hypothetical scenarios.

E.g. that the issue involved does not turn on detailed consideration of facts (Giles) and where the issue will likely need to be resolved in the near future (Pretty)

Question 15

Wynne

Answer 15

Any consideration of a hypothetical question could only be obiter dicta