Traditional Judicial Review

Question 1

purpose of judicial review

Answer 1

provides specific legal avenue to ensure government action remains within the confines of the law

Question 2

Two key aspects of judicial review

Answer 2

• governance (accountability)

- legal scrutiny

Question 3

3 main forms of governance

Answer 3

• legal (courts)
• political (parliament)
• quasi-judicial (ombudsmen)

Question 4

Limits of traditional judicial review

Answer 4

• its mission is purely to look at the legality of a decision
• limited scope (lawful or not?)

Question 5

2 key Functions of judicial review

Answer 5

• redress grievances

- accountability

Question 6

Are only decisions of the government susceptible to judicial review? according to the CPR

Answer 6

• “decision, action, or failure to act in relation to the exercise of a public function”
• just needs to be a public body or a private body making public functions
• any person/body that exercises government power

Question 7

Three main stages of judicial review

Answer 7

• Pre-action stage
• permission stage
• standing

Question 8

pre-actions stage

Answer 8

• before C asks for permission to bring claim it attempts to notify potential D that they intend to bring a claim
• protocol letter
• provides opportunity for public body to correct their actions

Question 9

permission stage

Answer 9

• C applies to court for permission to bring claim
• C serves form to D
• courts decide if C has standing/legal right to continue their claim

Question 10

Standing stage

Answer 10

• courts need to determine there is “sufficient interest” accordint to senior courts act 1981 s31(3)
• courts have a wide discretion here

Question 11

Time limit for JR

Answer 11

• claim must be brought within 3 months of decision/action of public body
• for planning cases time limit is 6 weeks

Question 12

Remedies for JR

Answer 12

• quashing order (overturns illegal decision)
• prohibiting order (stops public body from taking the action)
• mandatory order (courts direct body to take positive step/make new decision)
• declaration (states clearly what the law is)
• injunctions

Question 13

Procedural exclusivity

Answer 13

• the idea that JR is an exclusive process for claimants to bring claims against public authorities
• according to O’Reily v Mackman these matters cannot be brought by ordinary action just JR

Question 14

Why might claimants try and avoid JR?

Answer 14

• more difficult course of action

- many steps/qualifications

Question 15

What is the exception to procedural exclusivity held in Trim v north Dorset District council (2011)

Answer 15

-if public action interfers with private rights they can still only choose JR unless there” is a clear overlap with private law principles (e.g contract or tort)”

Question 16

Exception to procedural exclusivity held in Day v Speltborune Borough Council (1984)

Answer 16

-if the public body acts in a way that gives rise to damages in negligence it could be pursued by private law instead of JR

Question 17

Decision in Cocks v Thanet District council (1983)

Answer 17

-if an action by public body gives rise to private law claim but the main issue is the legality of the decision, to determine this the claimant must go through JR

Question 18

Can individuals who have proceedings in private law raise a public law manner as their defence or do they have to go through JR?

Answer 18

• According to Wandsworth v Winder (1985) there is nothing to suggest that they cannot do this
• allowing Ds to bring claim in public law isn’t an abuse of process as Ds don’t choose in what manner they’re prosecuted so its only fair to allow them to defend in whatever manner they can