Procedures, Remedies, Alternatives

Question 1

What does Hardy v Pembrokeshire County Council (2006) say about time limits?

Answer 1

The first of those requirements exists independently of the second. It is therefore, as has been stressed many times, quite wrong to assume that filing within three months amounts to filing promptly. It may or may not, depending on the circumstances …it is not correct to proceed on the basis that applicants have three months in which to seek judicial review. The reasons for such an approach are clear from a large number of authorities. A public law decision by a public body in almost all cases affects the rights of parties other than the decision-maker and the applicant seeking to challenge such a decision. It is important that those parties, and indeed the public generally, should be able to proceed on the basis that the decision is valid and can be relied on, and that they can plan their lives and make personal and business decisions accordingly.

Question 2

What are the reforms to permission in England and Wales in 2005?

Answer 2

Senior Courts Act s 31(3C-3E) added by Criminal Justice & Courts Act 2015, s 84:
(3C) When considering whether to grant leave to make an application for judicial review, the High Court—
(a) may of its own motion consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred, and
(b) must consider that question if the defendant asks it to do so.
(3D) If, on considering that question, it appears to the High Court to be highly likely that the outcome for the applicant would not have been substantially different, the court must refuse to grant leave.
(3E) The court may disregard the requirement in subsection (3D) if it considers that it is appropriate to do so for reasons of exceptional public interest.

Senior Courts Act, s 31(2A-2B), added by s 84 Criminal Justice & Courts Act 2015:
(2A) The High Court—
(a) must refuse to grant relief on an application for judicial review, and
(b) may not make [an award of damages] on such an application,
if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.
(2B) The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest.

Question 3

Have the reforms in England and Wales been successful?

Answer 3

Judges have not placed any major emphasis on the new clauses as it is hard to prove, every decision-maker is different.

Question 4

What are the six principles of good adminstration?

Answer 4

1. Getting it right
2. Being customer focused
3. Being open and accountable
4. Acting fairly and proportionately
5. Putting things right
6. Seeking continuous improvement

Question 5

What do Ombudsmen deal with complaints of?

Answer 5

Maladministration

Question 6

Can you seek Judicial Review of the Ombudsman?

Answer 6

R v PCA ex parte Dyer (1994) - Court finds ordinary Wednesbury review for irrationality (and other JR) applies

Question 7

What are the principle remedies available on an application for judicial review and what does each involve?

Answer 7

• Judicature (NI) Act 1978 section 18 set out the remedies available. Also in the rules of the Court – Order 53.
1. Certiorari – quashing order.
2. Mandamus – requirement on a public body to carry out a particular duty. Courts are reluctant to do this unless they can do so in a precise way. Concerns as the decision-makers are better equipped to make these decisions than the Courts.
3. Prohibition – prevents a decision maker from acting beyond its power.
4. Declaration – the Court explaining the law. Attractive outcome because it is not doing anything in particular. The Court hopes that then everyone will abide by the law.
5. Injunction
Apart from the traditional remedies stated above, there are the following remedies:
1. Damages – these are not usually used because judicial review is about legality, tort and contract are more about damages. Before damages can be given in a successful claim, the case must coincide with an element of tort law.
2. Under the Human Rights Act, there is the availability of a declaration of incompatibility under section 4.
3. Under EU Law, legislation can be set aside/inapplicable, and EU law can be said to be supreme.
4. Section 8 allows for damages under the Human Rights Act, however this is only occasional.
5. Under EU law, there is the possibility of state liability for damages.`

Question 8

What are the eight main reasons for refusing a remedy? How did these reasons change, in respect of England and Wales, in 2015?

Answer 8

1. Delay – there was an unlawful act but everyone has moved on. If change the law now, third parties who have changed will be disadvantaged. Rule of good administration.
2. Alternative remedy available – judicial review is a remedy of last resort. E.g. can appeal to ombudsman or statutory appeal available.
3. Standing – right to bring the challenge (have to show sufficient interest (or have to be a victim under HRA)).
4. Conduct of the applicant – explain clearly, fully and fairly what the law is and what the facts are.
5. The result was ‘fair’
6. Scarce resources
7. Justiciability
8. Administrative inconvenience/chaos
   These changed in respect of England and Wales in 2015 because section 84 of the Criminal Justice and Courts Act 2015 changed section 21 of the Section Courts Act 1981 to the High Court must refuse to grant relief if it appears to the court to be highly likely that the outcome would not have been substantially different.