JR 1 - Nature and process Flashcards
(39 cards)
What is judicial review concerned with?
Checking the exercise of public power
Should courts be concerned with the merits of a decision?
No - should be concerned with whether such a decision has been correctly made and implemented according to law
Will judicial review effectively work like an appeal?
I.e. can courts substitute their decision for that of the decision maker
No - but can direct that decision be made again in the correct manner
What are the 5 main preliminary issues that must be considered befoe a judicial review claim can be pursued?
- Amenability
- Procedural exclusivity
- Standing
- Time limits
- Ouster clauses (where relevant)
What decisions are amenable to judicial review?
Generally - only public law decisions
What is a public law decision?
I.e. a decision amenable to judicial review
A decision, action or failure to act in relation to the exercise of a public function (usually through exercise of some form of statutory power)
Can public law decisions include prerogative powers?
Yes
Can associations with no direct statutory powers be subject to judicial review?
E.g. Panel of Takeovers and Mergers
If they exercise a governmental-type function
E.g. Panel regulates important aspect of national economic life
So when will a body ultimately be amenable to JR?
- If source of power is a statute
- If they exercise a public law function with public law consequences
What is the ‘but for’ test in deciding if a body’s decisions are subject to JR?
If an authority had not already been in existence, PARL would have to regulate activity in question = decisions subject to JR
Will self-regulatory authorities - e.g. ASA or Bar Council - be subject to JR?
Insofar that their functions have the necessary public character
When would self-regulatory authority decisions not be amenable to JR?
Where they give rise to private rights/nature e.g. Jockey Club, religious matters
Will a private company - who GOV has ‘contracted out’ to for services - be amenable to JR?
If its services are subject to specific statutory underpinning (e.g. a direct on-going statutory duty under the Mental Health Act to provide treatment facilities) but not if the power is purely contractual (provision of housing accomodation)
What is the general procedural rule re procedural exclusivity?
JR is exclusive procedure for challenging public law decisions whereas private law matters to be dealt with by ordinary action
* To bring public law challenge in any other way than by JR = abuse of process by court
Subject to exceptions
What are the exceptions to the procedural exclusivity rule?
- When neither party objected to use of private law procedure
- When contested decision was collateral (it arose out of or incidentally to some other legal claim)
What happens where a litigant asserts a private law right which incidentally involved the examination of a public law issue?
I.e. the two mix
E.g. Roy - doctor’s pay (provided for under NHS statutory regulations) was reduced as he was not devoting sufficient time to NHS work - brought a private action claiming breach of contract, which FPC sought to strike out as abuse of process as judicial review was the correct procedure
Will not be an abuse of the process of the court where claimant has private law rights e.g. right to be paid for work done
What does it mean that an applicant for JR needs to have standing?
The applicant must have sufficient interest in the matter to which the application relates
Must apply to court for permission first
When will individuals or organisations clearly be given standing?
Where they are directly affected by a public law decision
Otherwise is a mixed question of law and fact and connection between applicant’s degree of interest and matter in contention
Can an association of individuals, rather than one individual alone, have standing?
E.g. association of taxi drivers opposing new licenses
Yes - if a logical connection between association and decision under challenge because members affected
Logical to have a joint case rather than several individual ones
If individuals without standing band together to form a larger group, will this change their status?
No - cannot engineer status by forcing multiple individuals into a group
Will a pressure group be granted standing?
More likely if it is the case that without the group, the people it represented may not have effective way to bring issues/the expertise to make a claim - resulting in a less well-informed challenge
E.g. Greenpeace - had genuine concern for env and 2,500 supporters in CUmbria - matter would otherwise had to have been brought by individual living close to area with far less expertise than the group
What factors will contribute to the decision to grant standing to a pressure group?
- Importance of vindicating rule of law
- Likely absence of other responsible challenger
- Nature of breach of duty (seriousness of matter)
- Prominent role of applicants in giving advice and assistance (expertise of challengers)
Can an individual have standing if the connection between them and the issue is not a personal/immediate one?
A ‘concerned citizen’ whose interests are not directly impacted
E.g. ex parte Rees-Mogg - editor of the Times who had frequently written about EU membership had sincere concern over the signing of the Treaty of the European Union
Yes - out of sincere concern (important to rule of law)
Will turn on facts of the case and if there are any more directly interested challengers
What is the time limit for a judicial review application?
- Promptly; and
- In any event no later than 3 months after the grouns to make the claim first arose
I.e. can be refused even under 3 months if not filed promptly
