W5 - JR Preliminaries

Question 1

Preliminary stages

Answer 1

1. Public law issue
2. Public body: amenability
3. Sufficient interest
4. Time Limit
5. Ouster provisions

Question 2

Public law issue

Answer 2

Where the case raises purely public law issues, JR procedure should be followed rather than ordinary private law procedure (O’Reilly)
eg. CPO, grant/refusal of a licence, grants

Question 3

Public body

Answer 3

Two stage test (Datafin) -

• source of power (set up under statute, delegated legislation or derives power under a reviewable prerogative power)
• nature of power (exercising public law functions) eg Beer

Question 4

Sufficient interest

Answer 4

s31(3) Senior Courts Act 1981

• Standing if they are directly affected by the decision
• Being interested, even if for good reasons, is not the same as having a sufficient interest (Fleet Street Casuals)

Pressure group => 5 factors outlined (World development Movement):

• importance of the matter
• likely absence of other challengers
• need to uphold the RoL
• role of the pressure group
• seriousness of the alleged breach of duty

Question 5

Time Limits

Answer 5

• Claim must be made promptly within a max of 3 months (Rule 54.5 CPR) and without undue delay (s31(6) Senior Courts Act 1981)
• Planning cases reduced to 6 weeks
• Public procurement cases (involving public sector contracts) reduced to 30 days
• Claim may be rejected even if within the 3 months if there has been undue delay (Finn-Kelcey)
• Courts may be willing to extend the time limit if there is a good reason (Jackson) but this is in very exceptional circumstances (Hardy)
• No longer appropriate to treat delay in obtaining legal aid as a complete answer (Kigen)
• Remedy could be refused if application made outside the 3 months even if extension granted (Caswell)

Question 6

Ouster clasues

Answer 6

• full ouster clauses will not protect decisions that were never legally valid (Anisminic)
• May be possible to exclude JR by use of very clear and explicit words (Privacy International)
• partial ouster clauses limiting the time for making a JR application are more likely to be valid (Ostler) but courts would have no discretion to grant an extension even if there were good reasons for the delay (Smith)
• Provision of an alternative right of appeal may operate as an implied ouster clause and => JR will not be available (Goldstraw)