Creation for Application of JR

Question 1

STEPS of JR:

Answer 1

1) standing
2) scope (in PQ where multiple claimaints against same body- do scope and amenibility first to get it out of the way)
3) amenability
4) time limit
5) Grounds of Review
6) Remedy

Question 2

Scope: (who is amenable,

Answer 2

def: against whom may JR be sought

Bodies clearly amneable:
- bodies exercising statutory functions (HRA 1998 for hra claims) - find another
- bodies exercising prerogative functions (Miller-Cherry)

Non-statutory bodies:
- bodies exercising public function are amenable (Wheeler v Leicester City Council [1985]

Ex parte DPP: inferior courts are subject to JR (magistrates and High Court)

all other bodies: * ex parte DATAFIN [1987]* TEST:
- functional test: ‘but for’ test: if the decision-maker did not exist, would the state have to invent it? (In the case datafin was effectively a monopoly) (does it exercise a public function?)
- institutional test - connection with government

WHERE SCOPE IS NOT FOUND:
- ex parte Aga Khan: for breach of contract there are other adequate remedies in private law.

**HRA SCOPE: **
- Section 6: obliges public authorities to act consistently with convention rights.
- case law on JR does not determine whether a body is public authority for purpose of Act (Aston Cantlow PCC v Wallbank)

Donoghue [2002]
- case about public authority contracting out to private bodies and whether amneable under S 6 HRA 1998
- held it was a function public authority (ex parte Datafin [1987]

YL v Birmingham City Council [2008]
- held not a public authority because it was for profit for S 6 of HRA.
- remains goods law but on the facts was overturned by statute (outside of carehome context private will not be considered for HRA).

Question 3

Standing:

Answer 3

(S31 Senior Courts Act 1991)
- Sufficient interest = directly affected by decision.

Ex parte National Federation of self-employed businesses (Fleet Street) TEST for standing:
- held a mere busybody (also inssuficiently arguable case)
- said they didn’t have standing because the case was insufficiently arguable.
- Diplock disagreed: said acting in public interest should be sufficient (more liberal approach)
- they must have legitimate concern (not mere busybody) - in case it was an insufficiently arguable case
- the claimants were under tax evasion

Ex Parte World Development [1990]
- says there is no test for standing but rather factors to consider:
- the** importance** of the issue raised’
- ‘the likely absence of any other responsible challenger’
- ‘the nature of the breach of duty against which the relief is sought’
- ‘the prominent role of these applicants in giving advice, guidance and assistance with regard to aid’

Ex parte Rose Threatre Truct Co [1990] (NO LONGER GOOD LAW DON’t USE)
- difficulty arises when C is not personally affected and is acting in public interest.
- pressure group or interest group generally does not have standing to challenge a government decision unless it can demonstrate a sufficient personal or specific interest in the matter
- group had no higher standing than ordinary member of public and ordinary member of public was found not to have standing in the matter.

Ex parte Dixon:
- case with substantive public interest but lacking in sufficient interest may still be brought (but only if brought by individual) - this was example of both Miller cases.

Summary of law of standing in Common Law:
- Courts adopted increasingly liberal approach to both individual and group claims, if claimant seeking to represent public interest can demonstrate they have a real and genuine interest in the decision under challenge it will likely establish standing - context includes merit of claim, existence of better placed challengers and nature and reputation of individual or organisation in question (R (McCourt) v Parole Board [2020]

HRA STANDING:
- S 7: claims may only be brough by someone who is a victim of the act within the meaning of Art 34 ECHR

Question 4

Time Limit:

Answer 4

• Claims must be brought within 3 months after the grounds to make the claim first arose.(CPR 54.5)

Period can be shorter depending on claim and relevant legislation
- 6 weeks for planning cases (CPR, r 54.5(5))
- 30 days for public procurement cases
- 14 days for public inquiries (Inquiries Act 2005 s38)

Question 5

Judicial Review as an exclusive procedure:

Answer 5

O’Reilly v Mackman
- claims challening public law decisions must be brought via JR
- this prevents individuals from circumventing protections afforded to public authorites under JR (such as delayed claims)

Question 6

ouster clauses

Answer 6

R (Unison) v Lord Chancellor [2017]
- strong presumption that legislation does not intend access to the courts to be denied.

what will be considered an ouster clause:

R(Privacy International) v Investigatory Powers Tribunal [2019]:
- TEST: only the clearest and most ecplicit words could oust JR

R (Evans) v Attorney General 2015 UKSC:
- any decision of the executive should be subject to JR. - this extends to ouster clauses made by any actor of parliament
- Only Parliament itself can make ouster clauses.

Letters case where Evan’s thought the letters were of public interest.
It was held that executive actions are amenable to review
(Read more)

Anisminic first case for ouster clause read tomorrow.

Tribunals and Inquiries Act 1958(re-enacted 1992 s 12) provides that ouster clauses shall not prevent remedies of quashing and mandatory orders. (DOUBLE CHECK THIS)

Question 7

bars to permission

Answer 7

• insufficiently arguable case
• time
• no sufficient interest (S 31 Senior Courts Act 1993)
• no issue of ‘public law’
• if alternative remedies are available
• challenge is premature
• very costly