W4 - JR Grounds

Question 1

What are the grounds for JR?

Answer 1

CCSU - illegality, irrationality, procedural impropriety, breach of ECHR

Question 2

Illegality

Answer 2

• Acting without legal authority (No power to take decision whatsoever - McCarthy and Stone)
• Rule against delegation
• Fettering of discretion
• Improper purpose (Congreve)
• Dual purpose
• Irrelevant considerations
• Relevant considerations
• Error of Law
• Error of Fact

Question 3

Delegation

Answer 3

Generally = no authority to delegate (Vine)
BUT exceptions:
- Carltona principle:
civil servants in their deps (due to ind ministerial responsibility) BUT not if clear from wording that decision is for specified authority alone or decision was crucial w serious consequences (Adams)
- s101 LGA 1972: local authorities may delegate to local authority committees provided they make a formal decision to do so

Question 4

Fettering of discretion

Answer 4

Occurs when:

• acting under the dictation of another (Lavender and Sons)
• applying a general policy in too strict a manner (British Oxygen) => should be prepared to consider applications where an applicant has something new to say

Question 5

Dual purpose

Answer 5

One purpose relevant, other not =>

• primary purpose test (Westminster Corp): ultra vires if the unlawful purpose is the primary purpose
• Unauthorised purpose materially influenced the decision => improper purpose (ILEA)

Question 6

Irrelevant/Relevant Considerations

Answer 6

Public authority must disregard irrelevant considerations (Padfield) and take into account relevant considerations when exercising its powers (Roberts v Hopwood)

Question 7

Errors of Law

Answer 7

Wording in act may have been misinterpreted by the decision maker
Always reviewable (Anisminic)

Question 8

Errors of Fact

Answer 8

Jurisdictional EoF are reviewable (Khawaja) aka those that mean the public body has no power to take the decision

Question 9

Irrationality

Answer 9

If:

• no reasonable public body could have come to the same decision (Wednesbury principle)
• so in defiance of logic (CCSU; DSD and others/Worboys)

BUT this threshold is v high (Wheeler)

Question 10

Applying illegality

Answer 10

Illegality of policy in place (Improper purpose/dual purpose/EoF/EoL/Irrelevant consideration)
Application of policy (Fettering of discretion/Relevant considerations/Delegation)

Question 11

Procedural Impropriety

Answer 11

• Procedural ultra vires

- Procedural fairness/rules of natural justice (right to a fair hearing/rule against bias)

Question 12

Rule against bias

Answer 12

Prohibits a decision maker from acting where his involvement is improper, or from taking decisions which appear to be biased (=> no personal interest)

• Direct => court obligated to quash the decision; includes financial gain (Dimes) and promotion of same cause (Pinochet Ugarte)
• Indirect => quashing if ‘fair-minded and impartial observer would conclude that there is a real possibility of bias’ (Porter v Magill); unauthorised participation or presence by someone who may be biased (Hook)

Question 13

Right to a fair hearing

Answer 13

• Flexible and depends on the context of each case (Fairmount Investments)
• Nature of claimant’s interest key - three categories of complainant (McInnes) aka Forfeiture; Legitimate Expectation; Application
• No right to a fair hearing under JR if still at preliminary stage (final decision not made) - Lewis v Heffer
• Rules of natural justice do not apply where the decision-maker has a legislative rather than a judicial function ie through making byelaws (Bates v Lord Hailsham)

Question 14

Application cases

Answer 14

• For mere application all that is required is for them to have their cases heard honestly and without bias (McInnes)
• General duty to give applicants a sufficient indication of the objections against them to enable them to answer those objections (eg if the refusal of the licence cast doubt on their good character) - no further duty to give reasons/precise details (Benaim and Khaida)

Question 15

Right to reasons

Answer 15

• No general duty to give reasons (Hasan)
  BUT exceptions:
• where, in the absence of reasons, the decision looks completely wrong (Cunningham)
• Where impact on person’s rights is serious and the public interest requires the giving of reasons (Doody)
• Where needed to enable a challenge to legality/ sufficient info to challenge the decision (Citizens UK)

No reasons => likely to also be an irrational decision

Question 16

Oral hearing/ Cross-examination

Answer 16

• should be an oral hearing unless waived by the applicant; though hearing need not necessarily be oral if written representations would be sufficient (Lloyd v McMahon)
• must look at circumstances and if they warrant it when deciding if there should be an oral hearing (Osborn)
• cross examination permitted if fairness in the circumstances required it (St Germain)

Question 17

Legitimate expectation

Answer 17

If a public body has indicated that it will act in a particular way, then in principle it should be held to its implied promise

• Procedural: benefit or advantage the claimant enjoyed in the past; or public body given an assurance that it will follow a certain procedure before making a decision => cannot deny/withdraw benefit without consulting claimant (Liverpool Taxis; Save Britain’s Heritage); policy applied even if not yet published publicly unless there is a good reason not to (Mandalia)
• Substantive: public body has created an expectation that it will grant a substantive right eg by past practice (Unilever plc); certain statements (Asif Khan) or adopting a policy

Question 18

Possible outcomes if legitimate expectation

Answer 18

Coughlan:

• public authority only required to bear in mind its previous policy or other representation (=> irrationality)
• promise or practice induces a legitimate expectation of eg consultation (=> procedural)
• induced a legit expectation of a substantive benefit and to frustrate the expectation is so unfair that it would amount to an abuse of power (=> illegality) BUT only when a specific undertaking has been made => exceptional (Niazi)

Question 19

Procedural ultra vires

Answer 19

A failure to observe the procedural rules laid down in statute

• Mandatory requirement => invalidates a decision (Bradbury)
• Directory requirement => may invalidate decision (Coney v Choyce)

Courts take into account:

1. Wording of the statute
2. Nature of the requirement - likely to be mandatory if it provides an important procedural safeguard eg as to notice, hearing, consultation, reasons
3. would ignoring the requirement seriously prejudice him (eg not knowing case against him until he has to answer it likely would)

Intention of P should be taken into account (Soneji) eg Was it the intention of P that failure to comply with the procedural requirement would render the decision unlawful

Question 20

Forfeiture cases

Answer 20

• Highest standards in forfeiture cases aka entitled to expect more for it to be considered a fair hearing (Ridge v Baldwin)
• Claimants entitled to put case to a decision maker, know case against them, right to answer case against them (Fairmount Investments)

Question 21

Bare minimum expected of a fair hearing

Answer 21

• General duty to act in good faith and listen fairly to both sides (Rice)
• entitled to a hearing that is fair and reasonable in all the circumstances (Lloyd v McMahon)