JR - Procedural Impropriety & Legitimate Expectation Flashcards
(16 cards)
When is a decision amenable to JR?
When it is a public law decision, i.e. a decision made in the exercise of a public function
What is procedural exclusivity in JR?
It means public law issues must generally be brought by judicial review, not private action. However, exceptions exist for mixed claims
What is the test for standing in JR?
the claimant must have a “sufficient interest” in the matter.
What is the time limit for bringing a JR claim?
claims must be brought promptly and in any event within 3 months of grounds arising. Shorter limits apply to planning (6 weeks) and procurement (30 days).
What does “illegality” mean as a ground for JR?
The decision-maker must correctly understand and apply the law regulating their power (GCHQ). Includes ultra vires acts, errors of law/fact, abuse and retention of discretion.
What is simple illegality (ultra vires)?
When a public body acts outside its statutory or legal powers. Example: Fulham Corp tried to run a laundry service instead of providing washhouses.
When is an error of law reviewable in JR?
Since Anisminic, all errors of law are potentially reviewable unless they are not decisive, relate to a private code, or are based on broad, imprecise statutory terms.
What types of factual error are reviewable?
Precedent fact: Fact must exist before power arises (Khawaja)
No evidence: Decision based on unsupported fact (Coleen Properties)
Established fact mistake: Ignorance or misapprehension of a clear, objective fact (E v SSHD)
What are the two types of abuse of discretion?
- Considering irrelevant or ignoring relevant factors (ex p Venables)
- Using a power for an improper purpose (Padfield)
What is the Wednesbury test?
A decision is unreasonable if no reasonable authority could ever have come to it
When will courts apply higher vs lower intensity review?
High intensity (sub-Wednesbury): Fundamental rights at stake
Low intensity (super-Wednesbury): Social/economic policy
What is procedural ultra vires?
A breach of statutory procedural rules (Aylesbury Mushrooms). Modern approach looks to Parliament’s intent
When does the common law duty to act fairly arise?
Always. Fairness varies with context and individual impact
What are the two types of legitimate expectation?
(a) Procedural: Expectation of process
(b) Substantive: Expectation of benefit
How can a legitimate expectation arise?
- Express promise
- Regular past practice (GCHQ; Unilever)
Expectation must come from a public body (not opposition party)
Can a legitimate expectation be lawfully frustrated?
Yes, if doing so is justified (e.g. national security; macro-policy). Substantive expectations may only be overridden if frustration is proportionate
