Remedies and Exclusion Clauses for JR

Question 1

What are the first three remedies available following a successful judicial review action?

Answer 1

1. Quashing Order - formerly Certiorari.
   According to CPR 53.19 (2) The court may –
   (a) remit the matter to the decision-maker; and
   (b) direct it to reconsider the matter and reach a decision in accordance with the judgment of the court.
2. Mandatory Order - formerly Mandamus.
3. Prohibiting Order - formerly Prohibitioni.

Question 2

What are the possible private law remedies available after a successful judicial review action?

Answer 2

1. Injunction
2. Declaration - this does not quash a decision but amounts to a definitive statement of the legal position of the parties.
3. Damages – but only if there can also be established a tort or breach of contract (now including breach of ECHR rights under the Human Rights Act ss 6,7 & 8)
   CPR 54.3(2).”A claim for judicial review may include a claim for damages but may not seek damages alone.”
4. Substitutionary remedy -
   CPR 54 19(3): “Where the court considers that there is no purpose to be served in remitting the matter to the decision-maker it may, subject to any statutory provision, take the decision itself” – RARELY used.
   ALL of these remedies are discretionary.

Question 3

What four factors may discourage the granting of relief through a remedy?

Answer 3

1. Failure to pursue adequate alternative remedies such as statutory right of appeal - R (Sivasubramaniam) v Wandsworth CC
2. Undue delay in seeking relief
3. Unmeritorious conduct on the part of the claimant
4. Triviality - application of de minimise non curated lex principle

Question 4

What is the basic principle regarding the use of the judicial review process for public law challenges?

Answer 4

It was established by Lord Diplock in the case of O’Reilly v Mackman that as a basic rule public law challenges must be conducted by way of judicial review - ‘It would in my view as a general rule be contrary to public policy, … to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Ord 53 for the protection of such authorities.’

Question 5

What exceptions are there to the general rule laid down by Lord Diplock in O’Reilly v Mackman?

Answer 5

A person sued, or proceeded against for breach of e.g. a bye-law, can raise the invalidity of the instrument relied upon as a defence in criminal trial - see the case of Boddington v British Transport Police

Question 6

What is the basic rule/principle adopted by the courts in relation to exclusion clauses for judicial review?

Answer 6

Generally, courts do not read exclusion clauses as ousting judicial review.

Question 7

Which case demonstrated the courts reluctance to recognise ouster clauses preventing judicial review?

Answer 7

Anisminic Ltd v Foreign Compensation Commission -
A provision in a statute gave jurisdiction the FCC to determine compensation that should be paid to British nationals who had had property confiscated by foreign governments. An ouster clause stated - “decisions by the Commissioners shall not be called into question in any court of law”. The court chose not to enforce the clause, Lord Reid said on the matter - ‘if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court’

Question 8

How does the issue of exclusion clauses relate to the rule of law and parliamentary sovereignty?

Answer 8

Statutory provisions which prima facie prohibit judicial review raise fundamental tensions between rule of law (pro access to the courts) and the doctrine of legislative supremacy (giving effect to the will of Parliament).

Question 9

What question arose following the enactment of the Asylum and Immigration Bill 2003?

Answer 9

This Bill contained a clause seeking to exclude judicial review on, among other grounds, the basis of an error of law;
(a) Prevent a court, in particular, from entertaining proceedings to determine whether a purported determination, decision or action of the Tribunal was a nullity by reason of –
(i) Lack of jurisdiction,
(ii) Irregularity,
(iii) Error of law,
(iv) Breach of natural justice, or
(v) Any other matter [though not where it was alleged that a decision had been made in bad faith.
Is it possible to exclude judicial review for errors of law?

Question 10

What did Micheal Fordham say in response to the controversial Asylum and Immigration Bill 2003?

Answer 10

The Courts could potentially declare the clause unconstitutional if enacted as a fundamental breach of the rule of law (the nuclear option).

Question 11

What did Le Seur say about the question raised by the Asylum and Immigration Bill?

Answer 11

“The intended effect of that clause is to ‘oust’ the jurisdiction of the High Court to review the new Tribunal’s decisions, even where the Tribunal has got the law wrong or acted in breach of natural justice. This is a startling proposition. It would be startling if done in a dictatorship. It is incredible that it is proposed in the UK – the so-called mother of the common law.”

Question 12

What was the governments response to the criticisms of the Asylum and Immigration Bill?

Answer 12

Eventually the government dropped the ouster clause and ‘announced that it would bring forward amendments to replace the judicial review ouster with a new system allowing oversight by the administrative court’ - Rawlings.

Question 13

What is the significance of the Tribunals and Inquiries Act 1992?

Answer 13

s12 (1) As respects England and Wales-
(a) any provision in an Act passed before 1st August 1958 that any order or determination shall not be called into question in any court, or
(b) any provision in such an Act which by similar words excludes any of the powers of the High Court,
shall not have effect so as to prevent the removal of the proceedings into the High Court by order of certiorari or to prejudice the powers of the High Court to make orders of mandamus.

Question 14

In which instances may it be possible to give effect to ouster clauses or clauses excluding the jurisdiction of the courts?

Answer 14

1. Where provisions preventing judicial review have been treated by the courts as ‘allocating jurisdiction’ to other bodies - see the case of R(on the application of A) v B.
2. Or; where the language of a clause used is sufficiently clear and unambiguous to give the courts no discretion in complying with parliamentary intention - see the case of R (Privacy international) v Foreign and Commonwealth Secretary - Sales LJ - To construe section 67(8) as allowing judicial review of determinations and decisions of the IPT would subvert it.