Grounds for Judicial Review

Question 1

What is judicial review?

Answer 1

Method by which courts can review or scrutinise actions of executive.

Courts exercise a supervisory jurisdiction, meaning that generally the courts are not concerned about merits of the decision, but its legality.

JR allows courts to ensure public authorities act according to law, thus protecting the rule of law.

Question 2

What is JR designed to protect ad safeguard?

Answer 2

JR allows courts to ensure public authorities act according to law, thus protecting the rule of law.

Question 3

Explain the requirement that JR put be against a public body.

Answer 3

Only available as mechanism against public bodies such as:

Secretaries of state;

Local government (including councils);

Agencies set up by government under statute or royal prerogative.

Question 4

Can JR be exercised against charities?

Answer 4

No.

Question 5

What is the effect of an existence of a contract between the parties on potential JR proceedings?

Answer 5

If contract exists between parties, courts determine the matter is regulated by private not public law.

Contracts are therefore unable to be subject to JR.

Question 6

List the procedural stages for a JR claim.

Answer 6

1) The permission stage; and then if successful;

2) The full hearing stage.

Question 7

Summarise the JR pre-action protocol.

Answer 7

Claimant must send letter to potential defendant identifying the issues of dispute and D should (or can) respond within 14 days.

Question 8

Summarise the JR permission stage.

Answer 8

C applies to the court for permission to continue claim for JR.

Usually decided prima facie on claim and defence papers. Hearing may e required if matter is complex.

Question 9

What is the main ground for refusal at the permission stage?

Answer 9

Court has discretion to refuse permission if they believe, even if JR claim is successful, it is highly likely outcome for the Claimant would not be substantially different.

Question 10

Is there a time limit for brining a JR claim?

Answer 10

Matter must be brought promptly, but no later than 3 months after the issue arose.

Question 11

What is the procedural exclusivity rule?

Answer 11

JR is available only for public law cases.

This principle means that public law issues must be brought via judicial review rather than private law proceedings.

Question 11

Explain the exception to procedural exclusivity.

Answer 11

Cases involving issues of both public and private law can be resolved in private law.

Question 11

Give an example of a mixed private and public law matter which could be resolved through private law in accordance with the procedural exclusivity exception.

Answer 11

Doctor not paid in full be use public authority considered he had not carried out the amount of work required under the contract.

Question 12

True or False: JR cannot resolve factual disputes.

Answer 12

True.

If there are issues of fact these should not be considered in a JR claim.

JR claims are designed to assess and review issues of law.

Question 13

At what stage in JR proceedings is it determined whether the claimant has standing to bring the claim?

Answer 13

The permission stage.

If C has no standing, the c claim will be rejected.

Question 13

Do groups or associations have standing to bring a JR claim?

Answer 13

Not usually.

An exception may be made if the group or association are reasonable, well resourced, have sufficient expertise and it is unlikely there is an alternative claimant.

Question 14

true or False: JR should be used as a last resort.

Answer 14

True.

This is particularly important if case is suitable to be heard by a tribunal.

Question 14

List the grounds for judicial review.

Answer 14

Illegality;

Procedural impropriety;

Unreasonableness;

Breach of legitimate expectations

Question 15

List the possible elements for a JR claim based on the ground of illegality.

Answer 15

Error of law

Specific legal duty;

Unlawful delegation of power;

Irrelevant considerations; and

Ultra vires.

Question 16

Explain the error of law ground for a JR claim based on illegality.

Question 17

Explain the ultra vires ground for a JR claim based on illegality.

Answer 17

When. a public authority acts outside the powers, contrary to the act of parliament giving them the power to act.

This will be a matter of statuary interpretation to determine whether the act is outside the scope of the power given.

Question 18

What is an ouster clause?

Answer 18

A clause within state giving a public authority a certain power, attempting to shield it from potential JR.

Courts interpret these strictly, and have decided that provided the decision has been made awfully, it ay not be challenged.

Courts do however remain willing to determine whether a decision has been made lawfully.

Question 18

Where there is an ouster clause, what will the courts do?

Answer 18

An ouster clause does not always mean it cannot be challenged in court.

The court will likely hear the case to determine whether it was indeed legal.

Question 19

Give an example where the court may review an act which contains an ouster clause.

Answer 19

Woman refused street market licence.

The local authority decision would likely be heard by a court to determine whether it was a decision made legally.

Question 20

Explain the ‘failure to comply with a specific legal duty’ ground for a JR claim based on illegality.

Answer 20

States often require that when public authorities act, they comply with certain duties (such as the Public Sector Equality Act).

Question 21

What is the public sector equality duty?

Answer 21

Requires public authorities to take equality consideration into account.

They must therefore show due regard to the following:

1) elimination of discrimination against those with protected characteristic;

2) Advancing equality of opportunity/ fostering good relations between those who share protected characteristic and those who don’t;

3) Removing or minimising disadvantages suffered by those sharing protected characteristic.

Question 22

Define obligation to give due regard.

Answer 22

This is not a requirement to achieve a specific result.

It merely requires the authority to show it has been considered as part of decision making process.

Question 23

Explain unlawful delegation of power group d for JR (under the illegality ground).

Answer 23

Once a power is delegated it cannot be delegated again without being approved by act of parliament.

Question 24

Explain irrelevant considerations group d for JR (under the illegality ground).

Answer 24

Public authority must only take into account relevant considerations.

What is relevant will depend on the act granting the power to the public authority.

Question 25

List the procedural impropriety grounds for JR.

Answer 25

Mandatory/ directory requirements.

Right to be heard;

Rule against bias;

Duty to consult;

Duty to give reasons.

Question 25

Give an example of an irrelevant consideration.

Answer 25

If there was an act giving local authority power to manage land for their development, benefit and improvement of an area.

If local authority banned hunting under the guise of this act because they believed it was cruel, this would be an irrelevant consideration under the act.

Question 26

Explain the mandatory and directory requirements ground for JR (under the procedural impropriety ground).

Answer 26

Procedural requirements are either mandatory or directory.

Mandatory requirements must be followed and if they are not, the decision is invalid.

Directory requirements are requirements which should be followed, but failure to do so does not always invalidate the decision.

Question 27

How do you determine whether a requirement is directory or mandatory.

Answer 27

The language used in the act (eg must or shall); and also

Whether anyone would be caused injustice or hardship if the requirement is not followed.

Question 28

Explain the right to be heard (a common law ground which if not followed could be a ground for procedural irregularity).

Answer 28

depends on the decision being taken.

Eg forfeiture cases (ie someone is losing a right) at the very least they should be given the opportunity to hear the case against them ad respond.

If a person is making an application (into acquire a new right) the right to be heard may be less important, but still must be followed.

Question 29

give a overview of the rule against bias.

Answer 29

Natural justice requires decision by unbiased decision makers, and if not followed the decision may be deemed procedurally irregular.

there are three rules against bias:

• actual bias;
• automatic disqualification rule;
• apparent bias.

Question 30

Explain the three rules against bias.

Answer 30

1) Actual bias - present when decision maker makes decision which is motivated by bias. Almost impossible to prove.

2) Apparent bias - the test is whether a ‘fair minded and informed observer, informed of the facts, would conduced there was a real possibility of bias;

3) Automatic disqualification rule - if a decision maker has a financial interest, they will be automatically disqualified from hearing the case. If they have a non-financial interest closely connected to the issues raised by the decision, they are also automatically disqualified.

Question 31

Explain the common law duty to consult (which if not followed may give rise to procedural irregularity).

Answer 31

Arises in the following situations:

1) There is statutory duty to consult;

2) There has been a promise to consult;

3) There is an established practice to consult;

4) Where failure to consult would lea to conspicuous unfairness.

Question 32

Explain the duty to give reasons.

Answer 32

No general common law duty to give reasons, but there is an exception where:

1) subject mat tea or interest is important (eg personal liberty), fairness requires reasons to be given; and

2) If decision appears unusual, fairness may require reasons be given so person subject to decision can establish whether decision can be challenged (because something has gone wrong).

Question 33

Explain the ground of legitimate expectations.

Answer 33

This can arise where public body has given rise to belief power will be exercised in a certain manner, either due to:

1) An explicit promise or assurance; or

2) Previous action by the public body.

Question 34

What happens if one of the grounds for legitimate expectation arises?

Answer 34

The court may require public body to be bound by legitimate expectation and give effect to it.

Question 35

Give an example of the breach of legitimate expectation.

Answer 35

Local authority informed local taxi group they will increase the exiting limit of 300 licences, and consult them before raising the limit.

Local authority then removes list entirely without consulting.

Legitimate expectation of the group that they would be consulted would be breached, and the decision to remove the limit is therefore unlawful.

Question 36

Can a legitimate expectation be created by previous actions of a public body?

Answer 36

Yes.

Question 37

What is substantive legitimate expectation?

Answer 37

Courts may be willing to give effect to a substantive legitimate expectation (rather than a procedural one) if the promise is made by a public authority, is particularly important and has been made only to a small number of individuals.

Question 38

Giver an example of substantive legitimate expectation.

Answer 38

Woman seriously injured in accident promised a place in residential care home for life.

Five years later they try to remove the woman.

Court rules health authority could not close the care home. promise was made to a small number of individuals. The consequences to the health authority were likely to only be financial, outweighed by the interest in upholding the promise made to the woman.

Question 39

Summarise the ground of unreasonableness and irrationality (for JR).

Answer 39

The terms are used interchangeably.

Decision would have to be considered so outrageous its outside the power of decision maker and can’t be considered lawful.

Considerable latitude is given to the decision maker.

Question 39

What is the test for unreasonableness?

Answer 39

Decision must have been so outrageous in its defiance of logic, or of accepted moral standards, that no sensible person who applied their mind to the question could have arrived at it.

Question 40

Where deciding whether a decision is unreasonable and there is a question involving the HRA, what is the different test which is applied?

Answer 40

The proportionality test which comprises the following three requirements

1) Is the object of the policy sufficiently important to justify limiting a fundamental right;

2) Are the measures designed to meet the legislative objective rationally connected to it; and

3) Is the interference with the right no more than necessary to accomplish the objective?

Question 41

List the remedies available for a successful JR claim.

Answer 41

1) Quashing order;

2) Mandatory order;

3) Injunction;

4) Declaration;

5) Prohibiting order.

Question 42

What is a prohibiting order?

Answer 42

Orders D not to act in a particular manner.

Question 43

What is a quashing order?

Answer 43

Renders the initial decision void.

Position would then be that the decision were never made, and a new decision will be required.

Question 43

What is a mandatory order?

Answer 43

Orders D to act in a particular manner.

Question 43

What is the remedy of a declaration?

Answer 43

It declares the decision or action complained of was unlawful.