SBAQ - JUDICIAL REVIEW - THE PROCEDURAL GROUNDS FOR REVIEW ; PROCEDURE & REMEDIES Flashcards
- Question 1
Is the following statement true or false:
The common law rules of procedural fairness are made up of the right to an oral hearing and the right to be given reasons for a decision.
1.
True
2.
False
Feedback - FALSE
Well done. The rules of procedural fairness consist of the right to a fair hearing and the rule against bias.
Question 2
Mohamed, who runs a market stall licensed by Greenwell District Council, has just had his licence revoked. He has been told that this is on account of his ‘inappropriate conduct’, but he has not been given any further details or granted a hearing.
Is the following statement true or false:
This would be a forfeiture case and Mohamed should have been given notice of the case against him and an opportunity to answer any evidence against him.
1.
True
2.
False
TRUE ;
That’s right. Revocation of Mohamed’s licence involves Mohamed losing a benefit he previously enjoyed and this would therefore be a forfeiture case. In such a case Mohamed would have a right to details of the case against him and a right to reply to all aspects of that case.
Which of the following was NOT an outcome specified in the case of R v North Devon Health Authority ex parte Coughlan [2001] QB 213 when the claimant seeks to rely on a legitimate expectation?
1. The court may decide that the public authority is only required to bear in mind its previous policy or other representation.
2. The court may decide that the policy or representation induces a legitimate expectation that a particular procedure will be followed.
3. The court may decide that the public authority must ignore the policy or representation as it is an irrelevant consideration.
4. The court may decide that the policy or representation induces a legitimate expectation of a substantive benefit.
. The correct answer is C. A, B and D are all outcomes specified in Coughlan. Lord Woolf LCJ specified the following 3 possible outcomes:
(a) The court may decide that the public authority is only required to bear in mind its previous policy or other representation. It must giving this the weight it thinks right, but no more, before deciding whether to change course. The court is confined to reviewing the decision on Wednesbury, that is, irrationality, grounds.
(b) The court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken.
(c) The court may decide that the promise or practice has induced a legitimate expectation of a substantive benefit and that to frustrate the expectation is so unfair that it would amount to an abuse of power. In these cases, the court will have the task of weighing the requirements of fairness to the individual against any overriding public interest relied on by the public body for its change of policy.
A homeowner applies to the local authority under a statutory scheme for a grant to instal solar panels on the roof of his home. The local authority has just informed him by email that his application has been turned down. No reasons were given for this in the email.
Which of the following statements best represents the legal position as to whether the local authority needs to give reasons?
1. There is no duty on the local authority to give reasons for its decisions when exercising a discretionary power such as giving out grants.
2. Local authorities are always under a duty to give reasons for their decisions.
3. There is no general duty on the local authority to give reasons, but the local authority may be under a duty to give reasons if the decision looks clearly wrong.
4. The local authority is only under a duty to give reasons for its decisions if a statute requires it to do so.
5. The local authority is under a duty to give reasons as the decision will result in financial loss to the homeowner.
C is correct. There is no general duty for a decision maker (including a local authority) to give reasons so B is wrong. Such a duty may be imposed by statute but, even if the statute does not require reasons to be given, the court is likely to imply such a duty where the decision looks wrong or ‘cries out for an explanation’ (R v Civil Service Appeal Board ex parte Cunningham), so D is wrong.
Financial loss alone will not automatically result in there being a duty to give reasons, although may do so if the impact on a person’s rights is serious, so E is wrong.
Whether or not there is a duty to give reasons does not depend on whether the power being exercised is discretionary so A is wrong.
Assume that a statute gives local authorities power to license street trading through Street Trading Committees. The Street Trading Officer for a District Council has asked his local Street Trading Committee (‘the Committee’) to revoke a trader’s licence on the grounds that she regularly obstructs the road. The trader is the Street Trading Officer’s neighbour and they have had a long running dispute. The trader is allowed to argue her case in full before the Committee, but objects to the fact that when the Committee went into a separate room to make its decision, the Street Trading Officer went too. The Committee decided to revoke the trader’s licence.
Will the decision to revoke the trader’s licence be quashed on judicial review?
1. Yes, because there is a real possibility that the Committee’s decision was biased, its decision can be quashed.
2. No, because the trader will need evidence to show that the Street Trading Officer improperly influenced the Committee’s decision.
3. Yes, because the Street Trading Officer has a direct interest in the outcome of the decision.
4. Yes, because there has been a breach of the fair hearing rule.
5. No, because the trader was able to argue her case in full
A is the correct answer. This is a case of ‘apparent bias’, so the court will apply the test in Porter v Magill.
It is never necessary to show actual bias, so B is wrong.
The Street Trading Committee is the decision-maker and it does not stand to gain from the decision, financially or otherwise, so C is wrong.
The trader has had the chance to argue her case so there is no breach of the ‘fair hearing’ rule, but this does not mean that she will be unable to challenge the decision on the basis of apparent bias, so D and E are wrong.
6. Question 6
Question 6
A licence from the Borough Council is required to run a market stall. Two months ago the Borough Council revoked a woman’s licence following allegations that her cake stall fell below the hygiene standards required. The Council did not give her the opportunity to respond to the allegations (which she denies). The woman has incurred significant losses through being unable to trade.
Which of the following best explains what remedies would be available, if the woman made a successful claim for judicial review?
1. Prohibiting order
2. Quashing order
3. Damages
4. Injunction
5. Quashing order and damages
B is correct. Judicial review would quash the revocation and allow the woman to continue trading.
A is wrong as a Prohibiting Order will order a Public body to refrain from illegal action, which is not relevant.
C and E are wrong as damages are only available if the claimant can establish his private law rights have been infringed and are not available purely for the infringement of a public law right.
D is wrong as this is to restrain the body from illegal action, which is not relevant.
Following concern over the standard of care provided by dog kennels, Parliament has passed the Dog Welfare Act 2020 (fictitious) requiring all dog kennels charging for their service to be licensed under the Act. The Dog Kennel Licensing Board (DKLB) was set up under the Act to administer the scheme. The client applied for a licence and was refused last week. They wish to bring a judicial review of the decision refusing them the licence.
Which of the following best explains a requirement which must be met in order to bring a judicial review?
1. The client will need to establish the decision maker is a public authority for the purposes of the Human Rights Act 1998.
2. The client has six months to bring the judicial review claim.
3. The client must establish the decision maker is a public body exercising a private or public law function.
4. The client must establish the decision maker is a public body by reference to its source of power or nature of power.
5. The client must issue the claim for judicial review within the next 11 weeks
D is correct answer. The client can only bring a judicial review against a public body and the tests for this are the Datafin source of power test and nature of power test. The DKLB was given its decision-making powers by the Act and therefore satisfies the Datafin source of power test.
Option A is wrong. The client will only need to establish the DKLB is a HRA public authority if it is able to run breach of a Convention right as a judicial review ground. Nothing on the facts suggests there has been a breach of any Convention right.
Options B and E are wrong. The judicial review claim must be brought without undue delay, promptly and in any event within three months. If the client does not act without undue delay then they are likely to be refused permission by the court to bring a judicial review.
Option C is wrong since the decision maker cannot be a public body if it is exercising a private law function.
To challenge a public body in Judicial Review an aggrieved person must show that it is the correct course of action.
Which of the following statements best describes some of what must be shown?
1. The claimant must make a challenge in Judicial Review within 3 months of the offending decision or action.
2. The claimant must have sufficient interest in the decision or action taken in respect of public law.
3. If Parliament has attached an ouster clause to a decision or action taken under a statutory power, the court cannot review the matter.
4. Pressure groups are unable to challenge decisions or actions unless they are directly affected.
5. The claimant may challenge a public body through Judicial Review for breach of contract.
B is the best answer because Judicial Review is only available to claimants who can show that a public law decision or action affects them sufficiently.
A is wrong because it is not accurate. The challenge must be brought promptly, without delay and in any event within 3 months. The court also has a discretion to allow late claims if there are good reasons for the delay.
C is wrong because it is not accurate. The court will test the decision or action as to its validity before determining whether their jurisdiction has been ousted by Parliament. However, the court will abide by partial ousters (time limited clauses).
D is wrong because it is not accurate. Pressure groups may challenge decisions or actions that do not affect them directly if they satisfy the court that they are in the best position to do so.
E is wrong because the decisions or actions of a public body can only be challenged in Judicial Review if it is matter of public law. Contract law is private law.
An Act of Parliament (‘the Act’) provides that an inquiry shall be held before a draft compulsory purchase order is confirmed. The Act contains no provisions requiring notice of the draft order to be given to those affected. A draft compulsory purchase order is made and an inquiry is held. A man is affected but finds out about the draft order just before the inquiry, and is unable to prepare his case properly. After the inquiry the draft order is confirmed.
Can the man successfully challenge the compulsory purchase order?
Yes, because although the statute contains no express notice requirements, there is nonetheless an implied statutory requirement to give notice of the draft order.
No, because an inquiry has been held in accordance with the statutory procedure.
No, because the statute contains no provisions requiring notice to be given.
Yes, because the order can be challenged on the basis that the inquiry was biased.
Yes, because the common law rule requiring a fair hearing gives the man a ground of challenge.
E is correct. The fair hearing rule can apply where a statute is silent as to procedure. It requires that a person affected by a decision should have a fair chance to put their case.
As the statute does not mention notice, there is no statutory requirement to give this, so option A is wrong.
Options B and C are wrong because, although an inquiry was held in accordance with the statutory procedure and there was no statutory requirement to give notice, the man did not have a fair hearing.
There is no indication on the facts that the person holding the inquiry has any improper interest or prejudice against the man, so option D is wrong.
A woman has applied for a licence to run a care home three times. Her applications have each been turned down without an oral hearing. The woman applies for judicial review on the basis that she has not received a fair hearing.
Which of the following statements best explains whether the woman has had a fair hearing?
The woman has not had a fair hearing as the decision affects her livelihood and so this is a forfeiture case.
The woman has had a fair hearing as she is a applying for a licence which she has not held before and so this is an application case.
The woman has not had a fair hearing as she cannot put forward her case persuasively without an oral hearing.
The woman is not entitled to a fair hearing as she has not held a licence to run care homes before.
The woman has not had a fair hearing. This is the third time she has applied for a licence and been turned down so the decision-maker must be biased against her
B is correct. The woman’s case is an application case as she has not held a licence before, so option A is wrong. The facts are similar to those of McInnes v Onslow-Fane.
She is entitled to a fair hearing, so option D is wrong. However, a fair hearing in an application case requires only that she has her case decided honestly and without bias, so C is wrong.
There is no indication on the facts that the body granting the licence has any improper interest or prejudice against the woman so E is wrong.
The local authority has made a compulsory purchase order (‘CPO’) in relation to a farmer’s property. The relevant statutory rules provide that an inquiry must be held before a CPO is made, but this was not done. Local authority workers have attended the property and, when the farmer refused them entry, broke down the gate and began to set up digging equipment on the land. The farmer applied for judicial review and was successful.
Which combination of remedies should the farmer seek in the judicial review proceedings?
A quashing order and damages.
A quashing order and a mandatory order.
A quashing order, a mandatory order and damages.
A quashing order and a prohibiting order.
A prohibiting order and a mandatory order.
The correct answer is A. The farmer will wish to quash the compulsory purchase order and claim damages for trespass. This is possible since, if the CPO is found to be unlawful, the local authority workers will have no legal authority to be on the land and so will be trespassing. The court can award damages on a claim for judicial review where, as here, the damages could have been awarded in a civil claim (s31(4) SCA 1981).
The farmer would not need a mandatory order. A quashing order will allow him to retain his land – he does not require an inquiry to be held. Thus B and C are wrong.
It is too late for a prohibiting order since the decision has been made and acted on. Thus D and E are wrong.
A woman wishes to extend her property by creating an extension and a large basement area. The woman applies for planning permission under the planning acts. Planning permission is granted by the planning committee, which is chaired by the woman’s brother. The woman’s neighbour is unhappy about the grant of planning permission. She is busy preparing for her wedding the following year but, two months after the brother grants permission, she applies for judicial review of this decision.
Which of the following courses of action is the court most likely to take in response to the woman’s application for judicial review?
The court will quash the decision for breach of the common law right to a fair hearing.
The court will quash the decision for breach of a statutory duty to comply with procedural requirements.
The court will quash the decision for breach of the common law rule against bias.
The court will refuse permission for judicial review as the application has been made too late.
The court will refuse permission for judicial review as the neighbour does not have standing to bring a claim.
D is the correct answer because the time limit for claims under the planning acts is six weeks from the date of the decision. The court is unlikely to extend this time limit as wedding plans do not constitute a ‘good reason’ for delay.
Options A and B are wrong as, even if the neighbour had brought the claim within time, they are not the correct grounds of challenge – the woman is not complaining of a breach of statutory procedure or that she has not had a fair hearing.
Option C is wrong. Although this would have been the correct ground of challenge, the court is unlikely to grant permission for judicial review.
Option E is wrong as the woman will have sufficient interest to bring a claim. She is personally affected by the decision given the amount of noise and disruption the building work will cause.
In accordance with the relevant statute, a man applies to his local council for planning permission to build a factory on land which he has recently purchased. A member of the council’s planning committee lives in a house, which is built next to the land. The man has just received a letter from the council’s planning committee rejecting his application for planning permission.
Which of the following statements best describes whether the man can challenge this decision through judicial review?
No, because the man does not have sufficient standing to challenge the refusal of planning permission.
No, because the time limit for challenging the refusal of planning permission has expired.
No, because a refusal of planning permission cannot be challenged in judicial review proceedings.
Yes, because the planning committee may have been biased when refusing the application for planning permission.
Yes, because the planning committee has exceeded its powers in refusing the application for planning permission.
D is correct. The member of the planning committee has a direct interest in the rejection of the application for planning permission, because he may not want a factory built next to his home. The decision can therefore be challenged as a breach of the rule against bias, which is one of the rules of natural justice (Dimes v Grand Junction Canal Proprietors (1852) 10 ER 301).
A is wrong. The man has standing to claim judicial review because he is personally affected by the decision (Senior Courts Act 1981, s 31).
B is wrong. The time limit for seeking judicial review (six weeks in a planning case) has not expired, because the man has just received a letter rejecting his application.
C is wrong, as a refusal of planning permission is a matter of public law which can be challenged by way of judicial review.
E is wrong. The planning committee has not exceeded its powers, because it has the statutory power to consider planning applications.
An Act of Parliament (‘the Act’) gives the Secretary of State for Education (‘the SoS’) the power to close failing schools by giving one term’s notice (‘a termination notice’). Before the SoS can serve a termination notice on a school, the school must be inspected by a team of inspectors who must prepare a report recommending whether the school should be closed. The Act also states that a copy of the report “must be sent to the school by Royal Mail special delivery”. The school then has 21 days to make representations to the SoS.
A team of inspectors inspected a secondary school and recommended its closure. The report was, however, sent to the school by ordinary post and by email. The school did make representations to the SoS who nonetheless served on it a termination notice. The school now wants to challenge the decision of the SoS.
Which of the following statements best represents the legal position regarding the validity of the termination notice?
The termination notice is invalid as, by not sending the inspectors’ report by special delivery, there has been a breach of an important procedural safeguard and therefore breach of a mandatory procedural requirement.
The termination notice is invalid as the Act expressly provides the inspectors’ report must be sent to the school by special delivery; accordingly, there has been a breach of a mandatory procedural requirement.
The termination notice is invalid as Parliament would have intended the failure to comply with the requirement to send the report by special delivery to invalidate the decision.
The termination notice is valid as the requirement to send it by special delivery is merely a directory procedural requirement and its breach does not invalidate the notice.
The termination notice is valid as the requirement to send it by special delivery imposed an excessively onerous burden on the SoS.
D is correct as a procedural requirement is likely to be mandatory if its breach results in the claimant being substantially prejudiced (Bradbury v LB of Enfield). On the facts, the school has not been prejudiced and there has been a significant effort to comply with the requirement, so it is likely to be directory (Coney v Choyce).
Accordingly, option A is wrong. The procedural requirement of sending the notice by special delivery is likely to be directory, not mandatory.
Option B is wrong. Although the wording of the Act is important, Coney v Choyce shows that it is not conclusive, and the courts take other factors into account, in particular the importance of the safeguard and whether substantial prejudice has occurred.
Option C is wrong. It is unlikely that Parliament intended that a technical breach of the requirement would result in the notice’s invalidity where no harm occurred (R v Soneji).
Option E is wrong as a procedural safeguard cannot be ignored simply because it is onerous; the courts will take into account the other factors referred to in this piece of feedback.
Parliament has enacted an Act of Parliament to promote the sale of fairly-traded goods (the Act’). The Act establishes an Agency and gives it power to grant government-backed fair trade certification to importers and producers of fairly-traded goods. Products can only be labelled as fairly-traded if the Agency has granted the appropriate certification. The Agency has issued guidelines that it will normally grant fair trade certification to importers and producers who had previously held fair trade certification for three years under a previous scheme (‘the old scheme’). The Agency has recently refused a company importing coconuts from India fair trade certification even though it had been certified under the old scheme. In giving reasons for its decision, the Agency stated that it had received evidence that the coconuts were no longer fairly-traded and the company had failed to provide sufficient evidence to refute this allegation. The company intends to bring a claim for judicial review of the Agency’s decision.
Is the company’s claim likely to succeed?
Yes, because the company has a legitimate expectation that it will be granted fair trade certification and refusing certification is so unfair that it amounts to an abuse of power.
No, because although the company has a legitimate expectation that it will be granted fair trade certification, in this instance the court is likely to be confined to reviewing the decision on irrationality grounds.
Yes, because the company has a legitimate expectation that it will be granted fair trade certification and refusing certification in breach of the policy constitutes procedural ultra vires.
Yes, because the company has a legitimate expectation that it will be granted fair trade certification and, by refusing certification in breach of the policy, the Agency would appear to be biased against the company.
No, because as the policy was not set out in statute the company does not have a legitimate expectation that the Agency should have regard to it.
B is correct. A legitimate expectation arises where a party has been given an expectation that a body will act in a given way. Here, the Agency’s policy has probably resulted in a legitimate expectation on the company’s part that it will be granted fair trade certification.
The company’s legitimate expectation is likely to fall into the category under which the Agency is merely required to have regard to its policy or other representation. It must give its policy appropriate weight before deciding whether to depart from it, and the court is restricted to reviewing the decision on Wednesbury irrationality, grounds. As there is evidence that the company’s coconuts are no longer fairly traded, its claim is likely to fail.
Option A is wrong. It is based on the category of abuse of power. However, this category of legitimate expectation only arises where the public body concerned has made a specific undertaking, directed at a particular individual or small class of people, that the relevant policy would be continued. This does not seem to be the case here.
Option C is wrong, as procedural ultra vires arises where a decision-maker has failed to follow a statutory procedure rather than a policy.
Option D is wrong as there is no evidence that would lead an impartial observer to conclude that there was a real possibility of bias.
Option E is wrong as the Agency’s policy has probably resulted in a legitimate expectation on the company’s part.
