The remedies of JR Flashcards
Assuming all the other hurdles have been overcome and permissions granted and after reviewing the lawfulness of the decision what happens
the remedy claimed will only be awarded at the courts discretion
Which S of the 181 Act provides for the dismissal of a claim either at the permission stage or at the review stage of a claim for delay
S 31(6)
In which case was a remedy refused beach for delay of a few years
Caswell v Dairy Produce Quota Tribunal: JR action brought regarding the EC quota scheme which limited the amount of milk member states could produce. The government then set a national quota. C, did not relaise there was anything he could do to challenge the amount he had been allocated. He then attempted the bring a claim a few years later. Although, he had a good case, he could not be awarded a remedy. Nescience is no way to circumvent the delay requirement set out in s 31(6) of the Senior Courts Act 1981
Which Part of the CPR provides the absolute rule of 6 months
54.4 (1)(b)
What are the two situations when a remedy may be refused
delay and alternative remedy
Where is the expiation to alternative remedy found
R v CC Merseyside Police, ex p
R v CC Merseyside Police, ex p facts/legal principle
where a 2 year delay in application still allowed a successful claim – the claimant police officer was not told of a complaint for 2 years, rather than immediately, and then was dismissed with no warning. As such, it was ruled irrelevant that the statutory remedy available had not be exhausted first. However, the CoA held there could be exceptional situations where it would be appropriate for JR to be used even though another remedy was available. Of course, the Civil Procedure Rules 3 month limitation may have changed the outcome of this case.
Cases which were held not be an exceptional situation
R v SSHD, ex p Swati (immigrant refused entry had statutory right of appeal)
R (Davies) v Financial Services Authority (denied licence to trade, there was statutory method for appealing the revocation of trading licences)
What has been the reform to specific remedies
The main effect of the reform was that certain remedies which had long been available including prerogative orders, injunctions and declarations became forms of relief obtainable by the single procedure of application for judicial review. In 2004 there was a re-naming of the prerogative orders: they are now known as mandatory order, prohibiting orders and quashing orders.
What are the prerogative orders?
1) Mandatory orders
2) Quashing orders
3) Prohibiting orders
What is a mandatory order
An order from the High Court commanding a public authority or official to perform a public duty, in the performance of which the applicant has sufficient legal interest.
What did the case of Hadfield v Minister of Agriculture do for mandatory orders
prior an mandatory order could only compel decision makers to act in a certain way where only available to those with a legal duty, this no applies to all discretionary decision makers (in the case ministers discretion on milk prices)
What is a quashing order
Quashing a decision by a public authority were there is one or more grounds for judicial review. It sets aside the defective decision and enables a new decision to be made.
What is a Prohibiting order
An order issued to prevent a public body from exceeding its jurisdiction, or acting contrary to the rules of natural justice, where something remains to be done which can be prohibited.
What must be shown before a prohibiting order can be given
it must be able to identify the act or decision that the public body might take which should be prohibited
What are the cases that show the development of prohibiting orders
Initially, in R v Electricty Commissioners, it was said that only ‘judicial’ bodies are subject to prohibiting orders; however, the scope of this remedy was extended in R v Hillingdon LBC, ex p Royco Homes, which made all public bodies amendable to prohibiting orders.
In which case was it held that prison officers are also amenable to the remedy
R v Hull Board of Visitors, ex p St Germain
What is an injunction
An injunction is an equitable remedy. •It is an order which may require or prohibit a person from doing something, or prevent inaction.
Which section of the Crown Proceedings Act states that an injunction cannot be placed against the Crown or officers of the Crown
S 21
Which section of the CPR states when an injection may be granted
S 31(2)
Case where a prisoner was granted an injcuntin
R v SSHD, ex p Herbage
Which case held than an injunction may be available against central gov in order to protect EC rights
R V Home Office (deportation)
What is a declaration
A declaratory judgement is one which merely declares the legal relationship of the parties and is not accompanied by any sanction or means of enforcement.
Although there is no means of enforcement how are they supposed to have any effect
The authority of a court’s ruling on law is such that a declaratory judgement will normally be enough to restrain both the Crown and public authorities from illegal conduct
Case where an injunction was granted
• R (Miller) v Sec of State for Exiting the EU, declaration to prevent the Crown using its prerogative powers to give notice under Article 50.
What is an exclusion
A claim may be dismissed before the substantial point if the legislature excludes or limits the circumstances in which a claim may be brought.
Why do the courts disapprove of exclusions
because they allow the executive to potentially abuse their powers
What clauses may exclude claims
Ouster and time limit
Case where an ouster clause was used but the court said they were to be construe as narrowly as possible such that the claim was not barred
Anisminic v Foreign Compensation Commission
abandonment of military equipment and compensation
Why do the courts not like ouster clauses
they undermine the rule of law
What do time limit clauses seek to do
specify a shorter time in which a claim can be brough
Case where the court refused to allow bad faith to extend this time limit
Smith v East Elloe RDC
What was said in R v SS Environment, ex p Ostler
it was urged that time limit clauses were effectively ouster clauses and should also be construed as narrowly as possible. However, the decision in question concerned a policy consideration to allow certainty in development projects, so a claim after 9 months of the acquisition failed.
