Flashcards in Case Law - Judicial Review Deck (51)
Judicial Review procedure is governed by two pieces of primary legislation. What are they?
s 31 of the Senior Courts Act 1981) and
by rules of court contained in Part 54 of the Civil Procedures Rules (CPR) 1998.
O’Reilly v Mackman (1983) - Procedural exclusivity
According to O’Reilly v Mackman it is abuse of the process of the court to use private law proceedings to challenge the decision of a public authority, unless the decision affects a private right.
Claimants can seek judicial review only of decisions made by public bodies. Decisions of private bodies must be challenged under private law proceedings.
Two part test to determine what constitutes a public body established by Lloyd LJ in R v Panel on Takeovers, ex p Datafin pcc 1987
Source of power test – if the body making a decision has been set up under statute or under delegated legislation, or derives its power under a reviewable prerogative power, then it is a public body.
If this part of the test is not satisfied then the court goes on to apply the second part.
Nature of power test – if the body making the decision is exercising public law functions, it may still be a public body.
R v Sec of State for Foreign Affairs, ex p World Development Movement Ltd 1995
Factors that would be taken into account when deciding whether a pressure group has sufficient standing (as outlined by the Divisional Court)
1. The need to uphold the rule of law
2. The importance of the issue raised
3. The likely absence of any other responsible challenge
4. The nature of the alleged breach of duty
5. The role of the pressure group
The courts emphasised that the fifth factor as being particularly relevant to pressure groups, pointing out the WDM’s expertise and prominence in promoting and protecting aid to developing nations. A group of local people forming a pressure group to oppose a building etc would not normally have to satisfy the facts set out in ex p WDM since they would be individually personally affected.
R v Stratford upon Avon DC ex p Jackson 1985.
The courts do reserve a discretion to extend the time limit but only for a good reason. (R v Stratford upon Avon DC ex p Jackson 1985).
Hardy v Pembrokeshire CC  – a court is not obliged to allow time extensions.
R (Kigen) v Sec of State for the Home Dept 2015, the Court stated that, due to changes which had occurred since the dec in the Jackson case, it was no longer appropriate to treat delay in obtaining legal aid as a complete answer to a failure to comply with procedural requirements. However it may still be a factor that can be taken into account.
R v Dairy Produce Quota Tribunal ex p Caswell 1990
Even if permission was granted and the case proceeded to a full hearing, a remedy could be refused if the application had been made outside the 3 month time limit.
Anisminic v Foreign Compensation Commission
Full ouster clauses will not protect decisions that were never legally valid and it’s up to the court to review the decision to decide whether it is legally valid or invalid. H of L held that the FCC had made an error of law in deciding that a purchaser of business property amounted to a ‘successor in title.’
R v Epping and Harlow Commrs ex p Goldstraw 1983
The provision of an adequate statutory remedy for an aggrieved party, such as the right of appeal, may impliedly oust the courts’ judicial review jurisdiction.
Under s 31 (4) of the Senior Courts Act 1981,
.....the Admin Court can award damages on a claim for jud review where the claimant is seeing other relief (i.e. a quashing order) and damages could have been awarded in a civil claim.
R v Knowsley MBC, ex p Maguire 1992
There is no general right in law to damages for maladministration.
s 31 (3C) of the Senior Courts Act 1981
The court must not grant permission to apply for judicial review where the improper conduct complained of would be highly likely not to have resulted in a substantially different outcome for the claimant. The court may, however, disregard this requirement for reasons of exceptional public interest.
Section 31 (6) of the Senior Courts Act 1981
allows a court to refuse a claim where it feels there has been ‘undue delay’.
CPR, r 54.5
requires that a claim form must be filled in promptly and in any case within a max of 3 months after the ground to make the claim first arose.
R v Sec of State for the Environment ex p Ostler 1977
The court had no jurisdiction to entertain an application made outside such time limit stated in the partial ouster clause whatever the claimant’s grounds.
Smith v East Ellow Rurual District Council  unlike time limits, the courts have no discretion to grant an extension even if there are good reasons for the delay when there is a partial ouster clause.
R v Richmond upon Thames LBC, ex p McCarthy and Stone (Developments) Ltd 1992.
Public authorities cannot act without legal authority/lack of a relevant power.
Vine v National Dock Labour Board 1957
There is a general rule that decision-making powers, once given by Parliament cannot then be further delegated or ‘sub-delegated’.
Carltona v Commissioners of Works 1943
Government Ministers sub delegating decision making powers to civil servants in their depts provides and exception to the general rule against delegation.
R v Adams 2020
The Supreme Court stated that the Carltona principle would not apply if
a) It was clear from the wording of the statute that the decision was one for the Minister alone or
b) The decision was a crucial one with serious consequences and placing a duty on the individual Minister to take a decision would not place an excessive burden on them.
Local Government Act 1972 s 101
Under s 101 local authorities may delegate decision making powers to committees (or to an individual officer), provided they make a formal resolution to do so.
Lavender & Sons v Minister of Housing and Local Govt 1970
Acting under the dictation of another– public bodies cannot act under the dictation of another person or body.
British Oxygen v Minister of Technology 1971.
Anyone who has statutory discretion must not shut his ears to an application and must be always willing to listen to anyone with something new to say.
Congreve v Home Office 1976
Statutory powers cannot be used for an unauthorised purpose (Using Powers for an Improper or Unauthorised Purpose)
Westminster Corp v LNWR 1905
Where there are dual purposes behind a decision, provided the permitted/authorised purpose is the primary purpose, then the decision is not ultra vires and should stand.
In R v ILEA ex p Westminster City Council 1986.
The unauthorised purpose must not have materially influenced the overall decision.
Roberts v Hopwood 1925
A public authority must both disregard irrelevant considerations and take into account relevant considerations when exercising its powers.
Padfield v Minister of Ag 1968
Irrelevant considerations should not be taken into account
Anisminic Ltd v Foreign Compensation Commission 1969
Errors of law which affect a decision will always be amenable to judicial review.
R v Sec of State for the Home Dept, e p Khawaja 1984.
Decisions based on alleged errors of fact which got to the root of a public authority’s capacity to act (‘jusridictional’ or ‘precedent’ facts) are reviewable.
Associated Provincial Picture Houses Ltd v Wednesbury Corp 1948
Test was whether having regard to relevant considerations only, the decision maker came to a conclusion so unreasonable that no reasonable authority could ever have come to it.