Public law: Eligibility to Judicial Review Flashcards
Definition of Judicial Review
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.
Eligibility test: public issue:
What is a public law issue
What is procedural exclusivity
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
Explain Datafin test and its significance
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)
What is sufficient interest test?
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 do determine if a pressure group has standing to bring an judicial review
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
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
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)
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 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)
JR Procedures
3 Steps
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.
Where does JR take place
Adminstrative court of high court
How do courts apply different standards to judicial bodies and that in charge of allocation of resources
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)
Are Diplock’s grounds of challenge exhaustive and absolute
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)
Criminal Jusitce and Courts Act 2015
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)
