Chapter 1: Nature & Process of Judicial Review Flashcards

Question

1.4 Procedural exclusivity

Answer 1

Closely related to the more general question of amenability is the sub-issue of procedural exclusivity. The House of Lords decisions in O’Reilly v Mackman [1983] 2 AC and Cocks v Thanet DC [1982] 3 All ER 1135 established a general procedural rule

Answer 2

* Judicial review was the exclusive procedure for challenging public law decisions * Private law matters were to be dealt with by ordinary action * To bring a public law challenge in any other way than by JR would amount to an abuse of process of the court

Answer 3

In the case of O’Reilly itself, Lord Diplock stated that two exceptions to the principle could apply. Firstly, when neither party objected to the use of private law procedure and secondly, when the contested decision was collateral, ie it arose out of or was incidental to some other legal claim. The decision in O’Reilly has been widely criticised because potentially ‘genuine’ cases could be struck out if incorrect procedure was used.

Answer 4

A body of case law has built up around mixed claims, which are claims where the applicant’s public and private law rights are affected. Case law authorities show that where a claim involves both public and private law rights the courts are willing to be flexible

Answer 5

One of the most important decisions in this area is Roy v Kensington and Chelsea and Westminster Family Practitioner Committee (FPC) [1992] 1 AC 624. In this case, a private law claim brought by an NHS doctor was not struck out for abuse of process even though his case involved public law rights concerning the statutory framework for NHS pay. This was because there were private law elements to his case as well.

Answer 6

The Civil Procedure Rules have further diluted the strictness of the courts’ initial approach to procedural exclusivity. In the case of Clark v University of Lincolnshire and Humberside [2000] 3 All ER 752, the applicant was permitted to pursue her private claim even though it involved public law issues as well as private ones

Answer 7

The court identified that a key question was not so much strict adherence to procedural technicalities but rather whether the proceedings were being conducted justly in accordance with the general principles contained in Part 1 of the Civil Procedure Rules.

Answer 8

Note also that public law grounds can also potentially be used as a defence in private law proceedings – see for example Wandsworth London BC v Winder [1985] AC 461.

Answer 9

Even if the relevant decision is amenable to judicial review, not everyone nor every organisation can make an application. A necessary pre-condition for bringing a judicial review application is that the particular applicant has standing (or locus standi).

Answer 10

‘No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with the rules of court […]’.

Answer 11

[…] the court shall not grant leave unless it considers that the applicant has sufficient interest in the matter to which the application relates.

Answer 12

The question of standing was considered by the House of Lords in this case, often known as the ‘Fleet Street Casuals‘ case. The case lacks a clear ratio, but a series of principles can be taken from the various opinions of the law lords.

Answer 13

Lord Scarman described the ‘sufficient interest’ test as being a mixed question of law and fact and emphasised the importance of the connection between the applicant’s degree of interest and the matter in contention.

Answer 14

Lord Diplock endorsed a liberal approach to standing, including for groups, not simply directly affected individuals

Answer 15

It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the Federation, or even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped.

Answer 16

In Fleet Street Casuals the House of Lords took the view that standing was not just a preliminary issue. The merits of the case and issues of standing should be considered together at the main hearing too. A two-stage approach has since developed:

Answer 17

At this stage the standing test is designed to turn away those with little hope of success or vexatious litigants - these were described by the court in the Fleet Street Casuals case as ‘busybodies, cranks and other mischief-makers’.

Answer 18

Standing can be re-considered. At this stage the court could consider in more detail whether the applicant can show a strong enough case on the merits, taking into account the proximity of his connection to the issue in the case.

Answer 19

The Fleet Street Casuals case did not provide a definitive answer to the sufficient interest test in circumstances where groups and individuals are not immediately affected by a decision but are clearly not ‘busybodies’ or ‘mischief-makers’ either. A body of case law has developed concerning the standing rules and different categories of claimants.

Answer 20

When it comes to associations of individuals, who would themselves all be seen to have sufficient interest, the courts are generally content to allow that association standing in order to challenge a matter in the communal interest.

Answer 21

Facts: A decision was made to increase the number of taxi licences in Liverpool despite assurances to the contrary from the Liverpool Corporation. The Association, a representative group of taxi drivers, sought to review that decision. A key question for the court was whether the group, as opposed to the individual members of the group who were directly affected, had standing.

Answer 22

Facts: A decision was made to increase the number of taxi licences in Liverpool despite assurances to the contrary from the Liverpool Corporation. The Association, a representative group of taxi drivers, sought to review that decision. A key question for the court was whether the group, as opposed to the individual members of the group who were directly affected, had standing.

Answer 23

Held: The court held that the Association should have standing. There was a logical connection between the Association and the decision under challenge because its members were all affected.

Answer 24

The courts treat pressure groups differently from associations because they are unlikely to be in a position where all the membership is directly affected. Notwithstanding the liberal approach endorsed by Lord Diplock in Fleet Street Casuals, a restrictive view was adopted by the High Court in the case of R v Secretary of State for the Environment, ex parte Rose Theatre Trust Co Ltd.

Answer 25

The Rose Theatre Trust was formed to act as an interest group, campaigning to have an archaeological site ‘listed’ as an ancient monument. The group consisted of people with relevant interest and expertise. A claim was brought against the Secretary of State when he refused to list the site.

Answer 26

In refusing to grant the Trust standing, the court held that individuals, who would not individually be given standing, should not gain it collectively just because they had formed themselves into a campaigning group. This was seen by the judge as an artificial device designed to engineer this status.

Answer 27

Ex parte Greenpeace Ltd (No 2) [1994] 4 All ER 329 Standing: Standing: Given to Greenpeace to challenge a licensing decision concerning the Sellafield nuclear processing plant in Cumbria.

Answer 28

* Expertise and reputation of Greenpeace * Its genuine concern for environmental issues * Greenpeace had 2,500 supporters who lived in Cumbria and were therefore, arguably affected

Answer 29

Standing: Given to WDM to challenge the decision of the Foreign Secretary to give UK funding to the Malaysian government towards the construction of a hydro-electric dam.

Answer 30

* Importance of vindicating the rule of law * Likely absence of any other responsible challenger * Nature of the breach of the duty against which relief was sought * Prominent role of WDM in giving advice, guidance and assistance on overseas aid

Answer 31

An individual who is directly affected by a public law decision should have little difficulty satisfying the sufficient interest test. The courts have, however, had to consider those who seek to challenge decisions because they are concerned as a citizen about a particular issue, not because they are directly affected by it. The liberalising trend in the courts’ approach to standing is well reflected in this area.

Answer 32

The former editor of The Times newspaper, who had frequently written about EU membership, was held to have standing to challenge the signing of the Treaty of European Union (the Maastricht Treaty) because of his ‘sincere concern for constitutional issues’.

Answer 33

Disagreed with the approach of the court in Rose Theatre. In his view, it was not necessary for a claimant to establish that he had a greater right or expectation than any other citizen in order to be granted leave. Judicial review was not about rights: it was about wrongs, in the context of the misuse of public power. Dixon, who wished to challenge a planning permission decision was not a busybody or a trouble-maker. He was entitled to be concerned about illegality in the planning permission process

Answer 34

It is notable, however, that the courts will not necessarily allow standing if there are other better placed challengers

Answer 35

The Mayor of London was one of the parties seeking to challenge the Parole Board’s decision to allow the release of the convicted rapist, John Worboys.

Answer 36

The court accepted that the Mayor had a genuine concern for the potential danger that may be faced by women in London. Statutory duties attached to his office, and he had an interest in tacking crime and supporting its victims in the capital. However, his interest was not specific enough to the workings of the Parole Board. The Mayor’s interest was distinguished from that of William Rees-Mogg because there were more directly impacted challengers to the Parole Board’s decision, notably the individuals, DSD and NBV, who claimed to be Worboys’ victims

Answer 37

The Mayor is, of course, entitled to comment on Parole Board decisions, and any concerns he might express would attract public attention, but, in our view, he is in no different position from any other politician or, indeed, any member of the public.

Answer 38

The time limit for a judicial review application is short and strictly applied

Answer 39

A claim must be filed (a) promptly and (b) in any event no later than 3 months after the grounds to make the claim first arose. Therefore, judicial review can sometimes be refused if a claim is not filed promptly, even if it was filed within three months.

Answer 40

Stipulates that time cannot be extended by agreement between the parties, although it can be extended by the court pursuant to its general power under CPR Part 3.1(2)(a).

Answer 41

The Senior Courts Act 1981, s 31(6) makes it clear that, where there has been undue delay, judicial review can be refused if the court ‘considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

Answer 42

An ouster clause is a legislative provision which, on its face, appears to exclude (to ‘oust‘) the jurisdiction of the Administrative Court to conduct a judicial review. Such clauses are rare. However, if they do appear to apply, the courts are generally hostile towards them.

Answer 43

They are seen, in constitutional terms, as representing an insult to the rule of law. Judicial review is seen by the courts as a vitally important constitutional function, designed to ensure that the executive is kept legally to account. Moreover, it is seen as an important right for all citizens

Answer 44

The modern judiciary has responded to such threats to its jurisdiction by developing, as part of its constitutional duty of interpreting statute, a very strong presumption that Parliament does not intend to exclude judicial review. The leading case in this area is summarised below.

Answer 45

Facts: Section 4(4) of the Foreign Compensation Act 1950 provided that a determination made by the Foreign Compensation Commission (FCC) ‘shall not be called into question in any court of law’. Anisminic Ltd. wished to challenge a determination by the FCC on the grounds that it had misunderstood the legal effect of the statutory framework under which it operated and had therefore reached an illegal decision.

Answer 46

Held: The House of Lords held that the ouster clause did not prevent Anisminic from challenging the decision of the FCC. It found that, as the FCC had committed an error of law and therefore its decision was illegal, its decision was not a ‘determination’ for the purposes of s 4(4); it was only a ‘purported determination’. As s 4(4) did not apply, the ouster clause therefore did not take effect.

Answer 47

Facts: Section 67(8) of the Regulation of Investigatory Powers Act 2000 appeared to preclude judicial review of the decisions of the Investigatory Powers Tribunal (IPT). The section stated that: ‘determinations, awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court’

Answer 48

Held: The Supreme Court held that this did not exclude judicial review and re-emphasised the importance of the presumption against ousting the jurisdiction of the court. It was for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude judicial review.

Answer 49

The courts strike an appropriate balance between the inferred intention of Parliament and the rule of the law. Judicial review can only be excluded by clear or explicit words. Noting the similarity between the words used in s 67(8) and those used in the provision in Anisminic, Lord Carnwath held that more explicit wording would be required to exclude the jurisdiction of the court.

Answer 50

A partial or time limit ouster clause is a legislative provision that excludes the jurisdiction of the court once a time limit has expired. If one applies, it is therefore even more restrictive for claimants than usual, but it does not remove access to judicial review entirely

Answer 51

The courts have therefore responded to these provisions by taking them at face value and enforcing them. This was made clear by the House of Lords in Smith v East Elloe RDC [1956] 1 All ER 855. Although there was some criticism of the East Elloe decision in Anisminic, the approach was reaffirmed by the Court of Appeal in R v Secretary of State for the Environment, ex parte Ostler [1977] QB 122.

Answer 52

It has more recently been reinforced by Civil Procedure Rule 54.5(3) which provides that the normal time limit does ‘not apply when any other enactment specifies a shorter time limit for making the claim for judicial review’.

Answer 53

For example, the Civil Procedure (Amendment No 4) Rules 2013 provide shorter time limits for challenges to planning decisions and public procurement decisions. The limitation periods are now six weeks and 30 days respectively for these two areas of judicial review.

Answer 54

In recent years, there has been a significant degree of governmental criticism about the scope of judicial review. Some changes have been made, in addition to the Civil Procedure (Amendment No 4) Rules 2013, and others are planned.

Answer 55

See s 31(2A) Senior Courts Act 1981, as amended by the Criminal Justice and Courts Act 2015. The provision states that the court must refuse to grant relief on an application for judicial review ‘if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred’. This affects a claimant’s standing and access to remedies.

Answer 56

This reported in March 2021. It did not propose the wide-scale changes that some in government wished for but it appears that calls for change have not ended. To date further reform is restricted to s 1 of the Judicial Review and Courts Act 2022 relating to the effect and timing of quashing orders.

Answer 57

Judicial review is concerned with checking the exercise of governmental power. Courts and tribunals with judicial review jurisdiction are not concerned with the merits of a decision, and they do not remake the decision as an appeal court might. In judicial review the court considers whether a public law decision has been correctly made and implemented according to law.

Answer 58

Consequently, there is no absolute right to bring a judicial review claim, which can be contrasted with rights of appeal under various statutory schemes. Judicial review claimants must apply to the court for permission.

Answer 59

The first point to note is that judicial review will only be appropriate if there is no suitable alternative remedy, or alternative remedies have been exhausted. Such alternatives might include a statutory right of appeal; internal complaints or appeal procedures; or a complaint to an ombudsman. If alternative remedies are available, the court can refuse permission to bring the claim or refuse a remedy

Answer 60

The Council had offered to put the claimants’ grievance before a statutory complaints panel, but the claimants had still sought judicial review.

Answer 61

The Court of Appeal observed that insufficient attention has been paid to the paramount importance of avoiding litigation wherever possible and emphasised that, unless there is good reason, the courts should not permit proceedings for judicial review to proceed if a significant part of the issues between the parties could be resolved outside the litigation process.

Answer 62

1. Ex Parte Application of permission 2. Permission granted if sufficient test and an arguable case 3. Full inter partes hearing

Answer 63

The most common remedy. It invalidates the impugned decision, usually meaning that the public body will need to take the decision again, applying the correct law or following a fair procedure.

Answer 64

Prevents a public body from acting or continuing to act unlawfully.

Answer 65

Compels the public body to perform a public law duty imposed by law.

Answer 66

The court may declare what the legal position is, or what the rights of the parties are. This does not question the public body’s exercise of the power. Declarations can be made without any other order or alongside other orders

Answer 67

Orders a party to perform, or refrain from performing, a specific act. Injunctions are relatively rare. However, they are sometimes granted at the permission stage of the proceedings as a form of interim relief - either before or after permission is granted.

Answer 68

May be awarded but only if either (i) the court is satisfied that damages could have been awarded in a private law action or (ii) the public body has breached its duties under the HRA 1998

Answer 69

The first three remedies – quashing, prohibitory, and mandatory orders – are collectively known as the ‘prerogative orders’, specific to judicial review. These are specific to judicial review, whereas the latter three can be granted in areas of private law too. It is important to note that, as suggested above, remedies can be granted on an interim or final basis.

Answer 70

The remedies, which the court may grant, are discretionary in nature. The significance of this was an important issue in Walton v Scottish Ministers [2012] UKSC 44

Answer 71

Here, Lord Carnwath argued that, given the widening of the rules on standing in recent decades, judicial discretion on remedies should act as a ‘necessary counterbalance’.

Answer 72

On the facts Walton was unsuccessful in his challenge which related to the proposal for a new bypass for the city of Aberdeen. However, had he won the case, it may have been appropriate for the court to have taken into account what Lord Carnwath called the ‘very attenuated nature’ of his interest in the matter by granting a remedy some way short of an outright quashing of the road scheme in dispute

Answer 73

In other words, the discretionary nature of remedies can be applied in a proportionate way in order to balance the degree of individual interest in the matter against the wider public interest.

Answer 74

* A decision will be amenable to judicial review if it is a public law decision, defined in CPR r 54 as ‘a decision, action or failure to act in relation to the exercise of a public function’. * This will be satisfied if a classic public body is exercising powers whose source is statute or secondary legislation (Datafin), or the royal prerogative (GCHQ) * Otherwise, it is a matter of examining the nature of the power (Datafin), alongside the factors identified in key cases concerning regulatory bodies, and private companies who have had services ‘contracted out’ to them by public bodies

Answer 75

* The decision in O’Reilly established a general procedural rule, that judicial review was the exclusive procedure for challenging public law decisions. To bring a public law challenge any other way would amount to an abuse of process. * Subsequently, exceptions to this criticised ruling have arisen in the context of mixed cases involving public and private law claims (Roy; Clark).

Answer 76

* Standing: An individual or organisation must have ‘sufficient interest in the matter to which the application relates’ (s 31(3) SCA). * Time limits: Claims must be filed ‘promptly’ and no later than 3 months – there must be no ‘undue delay’ on the part of the claimant. The court can extend time. Time limit factors can affect whether and what relief is granted by the court. * Total ouster clauses: The courts are unlikely to uphold a total ouster clause (Anisminic; Privacy International). * Partial ouster clauses: The courts are likely to uphold a partial ouster clause which abridges the limitation period (Smith v East Elloe; ex p Ostler).

Answer 77

* Alternative remedies must be exhausted before the court will grant permission to bring a judicial review claim. * There is a two-stage test to bring a judicial review claim: (a) the application for permission, and (b) the full hearing. * There are a range of discretionary remedies that may be applied for and granted in judicial review, on an interim or final basis.

Chapter 1: Nature & Process of Judicial Review Flashcards

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