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Con And Admin Law > Administrative Law > Flashcards

Administrative Law Flashcards

(65 cards)

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1
Q

Standing for JR

A

Sufficient interest - not if interests are affected but do they have a good case

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2
Q

What makes an interested party for JR

A

Directly affected by decision

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3
Q

Things court will consider when deciding whether to admit an interested party

A 
Size of organisation and number of members affected 
Rule of law
Importance of issue
Chance of another complainant 
Nature of breach
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4
Q

Which court is JR in and which is it appealed to

A

In HC. Appeal from administrative court to court of appeal

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5
Q

When won’t permission for JR be granted

A

Not a public law matter
Other appeal options not exhausted
Not appropriate on policy grounds
Wouldn’t have been substantially different for applicant

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6
Q

Time limit for JR claim

A

Three months from grounds arising

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7
Q

How to tell if it is a public body

A

Is the source of its powers royal prerogative? If not apply Datafin

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8
Q

What did datafin say to consider

A

Is it a public body?
Source of power (not only consent)
Nature of body’s duties (public law duties)
Consequences of body’s decisions (public law sanctions)

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9
Q

What to consider when deciding if a body is a public body

A

Do it’s decisions affect the public at large
Can it’s decisions be imposed without consent
Are they carrying out functions normally performed by an organ of gov
Is there any statutory regulations or gov control

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10
Q

What does the PAP for JR require

A

C to write to D with letter before claim
D has 14 days to reply
(Organise funding here if C is using public funds)
File claim form promptly and not later than 3 months after grounds arose
Serve claim form on D and interested parties within 7 days of its issue

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11
Q

Can parties agree to extend three month JR time limit

A

No

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12
Q

Do parties always have to follow JR PAP

A

Not if they think it’s inappropriate but must say why you think this in the claim form

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13
Q

Remedies for JR

A 
Declaration of unlawfulness 
Prohibitory order
Mandatory order 
Quashing order 
Injunction 
Damages in conjunction with above but not alone ( same for restitution or sum due)
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14
Q

Illegality includes….

A 
Ultra Vires
Improper purpose
Relevant and irrelevant considerations
Lack of evidence 
Unlawfully failing to exercise a discretionary power
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15
Q

Ultra vires

A

Must not go beyond powers conferred
Empowering act will say what powers conferred
Not just if the power is conferred but also how it was used
Misinterpreted or abused power?

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16
Q

Improper purpose

A

If purpose is in statute then that is exhaustive
If not the court will imply purpose.
Cannot use power to:
Penalise conduct
Promote political and moral views
Gain and unauthorised financial advantage
Defeat the power and purpose of the act

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17
Q

What if there is more than one purpose? (Improper purpose- illegality)

A

If main purpose of valid secondary invalid purpose cannot make decision unlawful unless it significantly influenced the decision

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18
Q

Relevant and irrelevant considerations

A

If expressed in statute then that is exhaustive

If not then implied the same as improper purpose

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19
Q

Lack of evidence

A

Decisions must be based on facts and evidence before the body
Cannot ignore relevant evidence, misinterpret evidence or unreasonably make a decision which is contrary to the weight of evidence presented during decision making process LPC

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20
Q

Unlawful failure to exercise a discretionary power

A

When the body refuses to think about exercising discretion
or
When they consider exercising discretion but decide not to

Can have policy but cannot refuse to consider a type of application. Consider all on their merits. Do not rule out changing policy and listen to arguments to change it

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21
Q

What does procedural impropriety mean

A

Breach of natural justice or failure to comply with statutory procedural requirements

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22
Q

Has there been a breach of natural justice

A

Does NJ apply
To what extent
Has it been breached

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23
Q

Do the rules of natural justice apply

A

Apply to all courts and tribunals
And where an administrative body acts judicially
Judicially means any decision affecting the rights of the individual

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24
Q

What does it mean to act judicially

A

Making a decision affecting the rights of the individual

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25
How do you know to what extent the rules of natural justice apply
This depends on the type of hearing Any legit expectations National security Need to keep secrecy for public interest
26
What does natural justice mean
Impartiality and fairness
27
How do you know if the rules of natural justice have been breached
Is there a real possibility of bias and have all parties to the dispute been given a fair hearing
28
What identifies a fair hearing
Both sides have the right to be heard by an independent tribunal To have notice of charges of misconduct To be heard in answer to those charges Must be given chance to state case and challenge prejudicial info Reasonable chance to prepare case before hearing
29
What are the two types of bias
Pecuniary bias- financial interest in outcome | Personal bias- anything which makes them more favourable towards one person
30
Do you need to prove bias to show a breach of natural justice
No just that a fair minded and informed observer would see a real danger or bias
31
Does a fair trial require legal representation
Yes if it is a court or tribunal otherwise it depends on seriousness, complexity ability of party
32
Is there a right to be given reasons for a decision
No, the burden is on the person arguing that reasons should have been given to show that the proceedure was unfair
33
Relevant considerations when determining if reasons should have been given
``` Body exercising judicial function Needed for justice Otherwise decision would appear aberrant Importance of detecting errors Absence of right of appeal ```
34
What is irrationality/ wednesbury unreasonableness
So absurd that no reasonable authority could have come to it
35
What does proportionality mean
Reasonable link between the objective sought and the means used to achieve it
36
What does the court ask when considering if there has been a human rights violation
Where the rights have been breached not whether they were taken into consideration when making the decision
37
When a decision is challenge by JR under HRA for being disproportionate what must the authority show
That it had proportionate aims not that it considered proportionality in its decision
38
In what cases is proportionality considered
Is legislation compatible with ECHR Applying EU law Deciding whether to quash punishment Asked to review a decision based on unreasonableness
39
What will a court consider when human rights have been limited
Was it no more than absolutely necessary to achieve the legitimate aim
40
meaning of irrationality
so outrageous in its defiance of logic or of accepted moral standards that no sensible person could have arrived at it
41
what is included in the ground of illegality
relevant and irrelevant considerations fettering of discretion delegate decision making powers (except carltona principle and s101 LGA 1972) using powers for improper or unauthorised purpose errors of fact - primary purpose must be authorised. did the unauthorised purpose materially influence the decision? errors of law
42
what does procedural impropriety consist of
breach of statutory procedure | breach of natural justice (fair hearing or bias)
43
what is required by natural justice for a hearing to be fair
act in good faith and listen fairly to both sides
44
for a hearing to be fair does natural justice require oral hearing, cross examination of witness and reasons
not always necessary
45
when is there bias
if there is a direct interest - must quash, bias is presumed indirect interest - may or may not quash
46
what is a direct interest
financial interest, proprietary interest or personal interest regarding same cause
47
what is an indirect interest
a relative of the decision making has the interest
48
when do the rules of natural justice not apply
when the decision maker has a legislative rather than judicial function
49
do statutory prcoedural requirements always need to be adhered to
2 types: mandatory and directory mandatory - must be followed or decision is invalid for ultra vires directory - does not need to be adhered to
50
how to tell if a statutory requirement is mandatory or discretionary
court ask would parliament have intended the consequences of non-compliance with the requirement to be the invalidity of the decision
51
when does legitimate expectations apply
can apply to any of the 3 JR grounds when the authority made a specific undertaking to an individual or group that policy would continue are there compelling reasons to change policy? is there overriding public interest to justify breach of expectation?
52
pre-action protocol for JR
letter before claim 14 days to reply (unless urgent or time limit less than 3 months) permission - standing and time limits (not granted if wouldn't have been substantially different for C unless public interest) hearing of claim
53
can ouster clauses in enabling acts prevent JR
full ouster clause - prevent any challenge | partial ouster clause - prevents some challenge
54
if ouster clause imposes time limit on challenge can the court extend it
no - not for any reason
55
when doesn't an ouster clause apply
if the decision maker steps outside their permitted area the ouster clause won't apply
56
principle of procedural exclusivity
use JR for public law case | if case has public and private elements then can use private route
57
what is a public body
RP or consider nature of power and if it is exercising public law functions
58
time limits for JR
3 months planning act 6 weeks public procurement 30 days
59
can JR time limit be extended
yes for good reasons but not obliged to | can refuse if there has been undue delay
60
can you use JR if there is a statutory remedy available
must exhaust statutory remedy first
61
when won't the court grant C a remedy for JR
if the outcome wouldn't have been substantially different | unless public interest
62
remedies for JR
``` prerogative remedies: quashing order prohibiting order mandatory order non-prerogative/private law remedies injunction declaration damages ```
63
can a declaration be ignored
yes no legal sanctions
64
when will damages be granted for JR
if C is seeking other remedies and damages could have been awarded in a civil claim (means C must have a private law cause of action eg tort, contract or ECHR breach)
65
will there always be a remedy for a successful JR claim
no JR remedies are discretionary

Con And Admin Law (6 decks)

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