Judicial review: Procedure Flashcards
Quashing orders
Set aside unlawful decisions
Not useful if you want to fully stop a body from passing another decision of the same type: although the court may make a quashing order, it is not the most appropriate remedy as it would not prevent the local authority from passing another resolution and increasing the number of licences.
Mandatory order
Direct a public body to take an active step i.e. force the local authority to consider the woman’s application lawfully.
Damages in judicial review
A claimant can only be awarded damages if they can establish that their private law rights have been infringed. However, damages are not available purely for the infringement of a public law right (ex p Maguire).
Time limit to bring a claim for judicial review
The woman must bring her claim without undue delay, promptly and within three months of the decision to refuse her licence but the court can extend these time limits if there is a good reason.
Conditions needed to fulfil to bring a judicial review case relying on breach of human rights (Article 9)
The man must have sufficient interest in the claim and be a victim of the local authority’s decision. He must apply promptly, without undue delay and within three months of the local authority’s decision.
Seek judicial review of a decision
In order to seek judicial review of a decision, there must be a public body carrying out a public function. Here, the Commission is empowered to grant licences, so both elements are satisfied (ex p Datafin). The Commission is therefore amenable to judicial review.
Answer was:Yes, because the Commission is amenable to judicial review claims, and the NWA does have sufficient interest to apply for judicial review.
A prohibiting order
Prohibiting order = prevent the local authority following through with their resolution (R v Liverpool Corporation ex p. Taxi Fleet Operators
Courts have set out a number of factors which they will consider when deciding whether a pressure group has standing
The nature of the alleged breach of duty; the importance of the issue raised; the role of the pressure group; the need to uphold the rule of law and the likely absence of any other responsible challenger.
What is a public body
Public bodies = carrying out a public function, provided to the public by the state. Authority to make decisions, and take action derives from parliament with respect to Acts of Parliament, delegated legislation (Orders, Regulation and Rules) as in the case of the GMC, secondary or ‘royal prerogative powers’ as in the case of the Passport Office. Please also note definition of public authority under s6 (3) of the HRA.
Quick Q:
Due to a lack of police resources Parliament passes an Act extending the period of detention without charge for those arrested for very serious offences to a maximum of six months. Very serious offences are defined in the Act as murder, manslaughter and rape. A man has been arrested for wounding with intent after he is alleged to have stabbed another man. The victim was hospitalised and is likely to suffer long term, life-changing injuries. The man has now been detained without charge for a month. He intends to apply for judicial review of his detention on the basis that the police have no power under the Act to detain him.
What remedy or remedies should the man apply for?
A quashing order and damages.
Option A is correct. The police will have no power to detain the man under the Act (or under PACE) for a month. The Act only applies to ‘very serious offences’ and wounding with intent is not included in the definition of these. The man will want the decision to keep him in detention quashed plus damages for the tort of unlawful imprisonment.
Option B is wrong because a prohibiting order will ensure that the police refrain from keeping the man in detention further but will not compensate him for the time he spent in custody.
Options C and D are wrong because the man does not want the police to perform a duty, but to refrain from unlawful activity.
Option E is wrong because, although the man wishes to obtain a quashing order, he is also entitled to damages for false imprisonment and so should claim these.
Can an ouster clause protect a decision by a public body from challenge
In Anisminic the House of Lords held that ouster clauses would not protect decisions that were ‘nullities’. Assuming that counsel’s opinion correctly indicates there are valid grounds for challenge, the ouster clause will not protect the decision from challenge. However, the company must comply with the time limits and must seek permission promptly and without undue delay (SCA 1981, s 31) and in any event within three months of the date of the decision (CPR, Part 54). As the company has waited for ten weeks without good reason, it is probably guilty of undue delay so will not be granted permission to bring a claim.
Pressure groups can challenge in judicial review
Quick Q:
A local charity that is exclusively dedicated to opposing the reduction in local hospital services wishes to challenge a decision made two months ago by the Secretary of State for Health to close the geriatric wing at the local hospital.
Which of the following statements best describes whether the charity can bring a claim for judicial review?
The charity does have standing and must bring its claim for judicial review promptly and no later than three months from the date of the decision.
Option E is the correct answer, as it is highly likely that a charity dedicated exclusively to opposing the reduction in local hospital services would have standing to bring a claim for judicial review, and the usual time-limit for judicial review of a maximum of three months in which to bring the claim would apply.
Options A to D are wrong as they do not accurately reflect the position on standing and the time limit as would likely apply on the given facts.
In the case of R v Secretary of State for Foreign Affairs, ex p World Development Movement Limited [1995] 1 WLR 386, the Court of Appeal set out five factors that the court should consider in deciding whether a pressure group has standing to bring a judicial review claim:
The need to uphold the rule of law;
The importance of the issue raised;
The likely absence of any other responsible challenger;
The nature of the alleged breach of duty; and
The role of the pressure group.
Applying these here, it is to be expected that the charity will have standing.
As to timing, a claim form for judicial review must be filed promptly, and in any case within a maximum of three months after the ground to make the claim first arose.
Datafin source of power test.
Answer:The client must establish the decision maker is a public body by reference to its source of power or nature of power.
Explanation:The client can only bring a judicial review against a public body and the tests for this are the Datafin source of power test and nature of power test. The DKLB was given its decision-making powers by the Act and therefore satisfies the Datafin source of power test.
Time limit for claims under the planning acts
6 weeks from the date of decision
Does cross-examination take place in judicial review?
While cross-examination is unusual in judicial review, if there are critical factual issues which mean cross-examination is necessary then the courts may order this.
