Public law: Eligibility to Judicial Review Flashcards

You may prefer our related Brainscape-certified flashcards:
1
Q

Definition of Judicial Review

A

Judicial review is the mechanism by which courts ensure public bodies act within the powers they have been given, and do not exceed nor abuse those powers.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Eligibility test: public issue:

What is a public law issue

What is procedural exclusivity

A

Public law issues are those relating to the wider public interest/the relationship between state and individual (CPO)

Procedural exclusivity: If claimanat is seeking to enforce public law rights, should do so via JR procedure, not ordinary civil procedure (O’Reilly v Mackman)

if mixed: maybe raised in private proceedings (Roy v Kensington Ramily Practitioner Committee)

A public law issue can also be raised as a defence in private law proceedings (collateral challenge), including both ciivl (wandsworth London Borough v winder) and cirminal proceedings (boddington v British Transport Police) proceedings

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Explain Datafin test and its significance

A

Datafin test is used to determine if the defendent qualifies as a public body, ie amenable to a judicial review:

(R v Panel on Takeovers ex p Datafin plc)

Test 1: source of power - was body set under statute/delegated legislation

Test 2: nature of power - does the body exercise public law functions (e.g. granting licenses) (only if test 1 fails)

The same test applies when bringing a claim on human rights grounds (R (Beer) v Hampshire Farmers Market Ltd)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What is sufficient interest test?

A

The claimant must have sufficient interest to have standing to bring forward a review under s.31 Senior Court Act 1981

R v inland Revenue Commissioners, ex p the National Federation of Self-Employed and Small Businesses

Test 1 Permission statge the claims are not frivolous or unmeritorious

Test 2 the Substantive Stage claimant’s relationship to the merits to prove legitimate interest in the affair

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

How do determine if a pressure group has standing to bring an judicial review

A

Considering Ex p World Development Movement

1) Importance of the matter
2) likely absence of any other challenge
3) the need to uphold the rule of law
4) role of pressure group (most important)
5) the nature of the alleged breach of duty

Regarding human rights grounds of challenge (s.7 HRA 1998) is or would the claimant be a victim of the unlawful act? Consider whether the claimant is directly affected by the interference

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

The impact of time limit on the admission of claim for judicial review

Situation where time limit may be extended

Situation where claim may be refused

A

S.31 (6) SCA 1981 court may refuse claim if there’s been undue delay’. and Finn Kelcey v Milton Keynes Borough Council and MK Windfarm Ltd

Civil Procedure Rule 54.5: the claimant must file claim form promptly (within 3 months ground first arose) and without prejudice to any statutory provision which shortens the time limit)

planning case six weeks
public procurement 30 days

Extra time may be allowed if the claimant is waiting for legal aid/there is difficulty obtaining evidence/other justified reasons

Court will not accept applications where there has been undue delay even for cases where there has been an error of law (ex p Caswell)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What is an ouster clause

How does an ouster provision affect the chance of a judicial review?

and that of an alternative remedy (right to appeal)

A

A full ouster is one which purports to allow no right of challenge at all, and which attempts to exclude the courts from playing any role in review of the decision

Complete ouster clauses are effectively meaningless (Anisminic Ltd v Foreign Compensation Commission) - decisions that are ultra vires are nullities

A partial ouster clause provides some opportunity for a decision to be challenged by way of judicial review

partial ouster clause will be tolerated by the courts but courts have no discretion to extend these (ex p Ostler)

The provision of an adequate statutory remedy for an aggrieved party, such as a right of appeal, may impliedly oust the courts’ judicial review jurisdiction (ex p Goldstraw)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

JR Procedures

3 Steps

A

Pre-action protocol: claimant should first send a letter to decision-maker asking them to reconsider their decision and wait 14 days for a reply (if urgent or time limit for JR claim very short, this can be skipped, courts will consider failure to take this step when making awarding costs

Permission stage: courts will consider whether claimant has suffiicent interest/os within time to make a JR claim. S.31(30) of Senior Courts Act 1981 provides that court must not grant permission if outcome is unlikely to have been different if conduct complained of had not occured, unless exceptional public interest

Substantive hearing in adminstrative court: usually on points of law.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Where does JR take place

A

Adminstrative court of high court

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

How do courts apply different standards to judicial bodies and that in charge of allocation of resources

A

Court applt strict standard to judicial bodies (tribunals that determine legal rights but are less willing to interfere with decisoins that involve the discretionary allocation of scarce resources (NHS decisions - R v Cambridge Health Authority ex p B)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Are Diplock’s grounds of challenge exhaustive and absolute

A

Despite the CCSU catergorisation, there is no general agreement on how to classify grounds of JR. Rather, Diplock’s grounds of challenge are not watertight compartments, but overlap and may run together (Boddlington v British Transport Police)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Criminal Jusitce and Courts Act 2015

A

Courts must no longer grant permission to apply for JR where proper conduct would not have made a difference to the outcome (except in cases of exceptional public interest)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly