procedures and remedies Flashcards
what is reviewed in JR
civil procedure rules part 54 - a decision, action or failure to act in relation to the exercise of a public function
secretary of state, local authorities, chief constables of police, CPS and some courts (crown, magistrates NOT high court, CoA and SC)
legislation subject to review: delegated legislation made under prerogative orders, legislation of devolved administrations, local authority byelaws NOT AoP (except areas where EU laws appear)
public function
datafin case: leading case on amenability (non gov body and whether they are exercising a public function) self regulatory body, created by banks - city panel on takeovers and mergers, power to decide on mergers and takeovers and could apply or threaten to apply sanctions, no statutory provision empowering city panel - court decide whether body serving public function
focus on nature of power exercised, the context - significant powers and they were coercive over companies subject to its jurisdiction and they had no choice but to submit to decisions of panel - concluded if there wasnt a self regulating body the gov would have made something similar
not a public function
aga khan case - AK had racehorse and banned substance found in horse and disqualified and banned from racing
sort JR but jockey club who sought ban not able to be JR - its not an organ of government because of nature of jurisdiction and functions, relationship between club and claimant = contractual
religious bodies do not exercise public function - wachmann case as not courts to decide on discipline within religious functions
factors
source of empowering statute or delegated legislation theres a presumption that the body exercises a public function
but for: if body did not exist the state would have intervened
monopoly power: e.g. takeover panels “giants strength”
absence of contractual submission - choice whether to submit to the decisions of the body (jockey club not individually sufficient to determine existence of public function, must be together)
R(on the application of the LD) V ITV broadcasting
the fact that service for public benefit doesnt make its service is public function
the fact function has public connection with statutory duty of a public body doesnt necessarily mean that the function itself public
fact that a public authority could have performed the function doesnt mean the function is public if done by a private body
the riveted profit making function behind a privates bodys operation points against it as a person with a function of a public nature
functions of a public nature are essentially functions which are governmental in nature
standing - the ‘sufficient interest’ test
standing = who can bring JR proceedings
s.31(3) senior courts act 1981 - an applicant who has sufficient interest in the matter
personal interest - decision directly affects a persons rights or interests
underlying tension in standing rules - sufficient interest not limited to personal interest - flexibility - in rules but the courts have grappled with competing concerns and encouraging ppl to take part in the enforcement of the law ensuring lawful action doesnt remain unchallenged, legal certainty, efficiency, preventing busybodies who have no direct interest in matter causing delay
group and public interest standing
fleet street casual case - brought by the national federation of self employed and small businesses, challenged decision of inland revenue not to collect back taxes from workers in press printing industry
lord diplock - there would be a gap in public law is a ‘pressure group.. or even a single public spirited taxpayer were prevented by outdated technical rules’ - court indicated that group and public interest standing should be given recignition in principle
restrictive approach
rose theatre trust case - remains of elizabethan theatre found during construction, important so group of archaeologists, historians etc. formed company to rep interests concerned with theatre and challenged decision of secretary of state to keep theatre - court found group didnt have standing - court must look at statute and decide whether ppl had special interest and different from ordinary person and not everyone has power to JR - nothing to distinguish this group from others so why should they be given standing?
later cases - greenpeace case - court took into account they had special expertise in the area - granted standing
a public interest approach
dixon case - sedley J said public law is not as based about rights but about wrongs and misuse of public power - courts = clear that JR claimants can be valid if for public interest and not because personally involved
AXA case: challenge to leg of scottish parliament, distinction between a situation whether its clear that the challenger needs to be a person affected by decision and situation where potential misuse of public power that affects public generally
rees mogg case: challenged a decision to sign maastricht treaty - member of pubic and no distinguishing basis of the decision on the nature of the individual but the fact this was a public matter
plantagenet alliance case - remains of richard III found in carpark in leicester challenged where remains public remains should be kept - public interest
does the claimant have an arguable case
if claimant not granted standing would another responsible challenger bring claim?
is the matter raised one of significant public importance?
is the claimant motivated by a genuine concern for the public interest?
does the claimant have expertise in the relevantsubject matter?
pre action protocol and permission - procedure:
pre action protocol - claimant required to write to defendant identifying the disputed issues and seeing if the matter can be resolved without litigation
claimant needs permission of the court to bring JR (CPR 54.4)
must try other reasonable routes first or else permission is unlikely e.g. tribunal
JR = last resort
permission likely to be refused if ‘unarguable’
time limits: claim form must be filed promptly and no later than 3 months after grounds to make claim first arose (CPR 54(5))
(discretionary) remedies
senior courts act 1981 section 31 - mandatory, prohibiting or quashing order or a declaration or injunction
consequences: quashing order - decision sent back to decision maker
courts often grant quashing order and mandatory order (direct body to reconsider decision in accordance to law) or quashing order and prohibiting order - stop body from continuing to exceed jurisdiction
declarations: non coercive but convention that government will comply
injuctions: similar to mandatory/prohibitory orders but more flexible
mandatory orders and public resources
imam case: claimant = family with disabled women and council gave accommodation but not fit, failed to provide temporary accom. to persons with priority needs who are unintentionally homeless SC considered whether a councils resources should be taken into account when decision to grant mandatory order when parl. imposes a duty it is assumed the local authority will comply but a mandatory order cannot have the effect of forcing a local authority to divert funding from other mandatory allocations already made so local auth. needs to provide detailed evidence to persuade court not to grant mandatory order
5 factor test:
1. does local authority have any contingency fund?
2. how long has the breach of statutory duty been continuing?
3. how if the breach is affecting the claimant?
4. is the authority taking steps to remedy the breach?
5. the claimant shouldnt be given undue priority over others who may have an equal or better claim to support under statutory scheme
