Judicial Review

Question 1

In which court does JR happen?

Answer 1

the Administrative Court, a branch of the High Court

Question 1

What court decisions are amenable to JR?

Answer 1

public law decisions only

Question 2

Which types of organisations have been found to be not generally amenable to judicial review?

Answer 2

Religious and sporting organisations

Question 3

procedural exclusivity

Answer 3

to bring a public law challenge in any other way than by JR would amount to an abuse of process of the court

Question 4

Court’s approach to procedural exclusivity for mixed claims

Answer 4

where a claim involves both public and private law rights, the courts are willing to be flexible

Question 5

a public law decision

Answer 5

‘a decision, action or failure to act in relation to the exercise of a public function’

Question 6

Standing

Answer 6

An individual or organisation must have ‘sufficient interest in the matter to which the application relates’

Question 7

Two-stage approach to determine standing

Answer 7

Initial permission stage - at this stage, the standing test is designed to turn away those with little hope of success or vexatious litigants

Full hearing stage

Question 8

Standing for associations

Answer 8

Associations can challenge a matter in the communal interest

Question 9

Are NGOs/pressure groups given standing?

Answer 9

there is a strong, if not ‘automatic’ presumption that ‘respectable’ pressure groups will be granted standing in representative actions

Question 10

Ex parte Dixon conclusion on standing

Answer 10

deemed 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 is about public wrongs and holding bodies to account over their misuse of power.

Question 11

Time limits for JR

Answer 11

Must be filed promptly / no later than 3 months after the grounds to make the claim first arose
judicial review can sometimes be refused if a claim is not filed promptly, even if it was filed within three months. Can be no ‘undue delay’ from claimant.

Question 12

Can time limit for JR be extended?

Answer 12

The time limit cannot be extended by agreement between the parties, although it can be extended by the court pursuant to its general power

Question 13

How do the courts view ouster clauses?

Answer 13

Ouster clauses are seen as an insult to the rule of law → the courts will apply a very strong presumption that Parliament does not intend to exclude JR

Question 14

Shorter time limits to make challenges for planning decisions and public procurement decisions

Answer 14

planning decisions - 6 weeks
public procurement decisions - 30 days

Question 15

Will the courts uphold ousters/partial ousters?

Answer 15

The courts are unlikely to uphold ouster clauses but are likely to uphold a partial ouster clause which abridges the limitation period

Question 16

“not substantially different test”

Answer 16

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”

Question 17

Judicial review is only appropriate if

Answer 17

there is no other suitable, available remedy or if alternative remedies have been exhausted

Question 18

Quashing order

Answer 18

most common remedy for JR; invalidates the decision, usually meaning that the public body will need to retake the decision in a lawful way ie following the prescribed procedure

Question 19

Prohibitory order

Answer 19

prevents a public body from acting or continuing to act unlawfully

Question 20

Mandatory order

Answer 20

compels the public body to perform a public law duty imposed by law, often within a set timeframe

Question 21

Damages can only be awarded for JR if

Answer 21

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 HRA 1998

Question 22

Remedies in public law are

Answer 22

discretionary

Question 23

Burden to prove to court that a mandatory order is not necessary

Answer 23

onus is on the authority to explain to the court why a mandatory order should not be made to compel it to comply with its duty

Question 24

"decisive" in the context of an error of law means

Answer 24

BUT for the error concerned, the decision would have been different

Question 25

3 types of error of fact susceptible to JR

Answer 25

Precedent Facts No evidence for a Fact Ignorance or Mistake of an Established Fact

Question 26

No evidence for a fact

Answer 26

The finding of fact is not supported by evidence

Question 27

Categories of illegality

Answer 27

Simple illegality (pure ultra vires), errors of law, errors of fact

Question 28

How can a public body fetter its own discretion?

Answer 28

If a public body hampers its own ability to properly exercise a discretionary power

Question 29

How do the courts respond when public decision-makers adopt policies in relation to the exercise of their discretionary power?

Answer 29

The courts will not allow a decision-maker to 'bind' or 'fetter' its discretion by adopting a rigid or ‘blanket’ policy, so that the outcome of a particular case is decided in advance, or made without proper exercise of discretion in response to individual factors

Question 30

the Carltona principle

Answer 30

Where discretion is conferred on a government minister, the courts will presume, in the absence of evidence to the contrary, that the minister is allowed to delegate his discretion to officials (civil servants) within his department, even if the statute does not expressly say so

Question 31

When can the courts interfere on grounds of unreasonableness? (Wednesbury)

Answer 31

if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it

Question 32

Classes of unreasonableness (3)

Answer 32

Material defects in the decision-making process Oppressive decisions Decisions that violate constitutional principles

Question 33

The Tameside duty (duty to make adequate enquiry)

Answer 33

Decision makers have a duty to take reasonable steps to put themselves in a position to be able to make a rational decision.

Question 34

High intensity review

Answer 34

Decisions affecting fundamental/human rights

Question 35

Low intensity review

Answer 35

Decisions concerning broader policy questions

Question 36

The courts tend to be reluctant to interfere with the decisions of

Answer 36

democratically elected officials on questions of policy

Question 37

The courts are reluctant to review decisions relating to what kind of policy?

Answer 37

social and economic policy - Wednesbury unreasonableness threshold continues to apply

Question 38

'super-Wednesbury’

Answer 38

areas of policy decision-making, which are deemed to be political and not within the proper ambit for judicial review (other than in exceptional circumstances)

Question 39

'sub-Wednesbury'

Answer 39

In some circumstances, the courts are increasingly willing to exercise a more intense degree of scrutiny when assessing the reasonableness of a decision e.g. fundamental human rights

Question 40

doctrine of proportionality

Answer 40

the means employed by a decision-maker to achieve a legitimate aim must be no more than is necessary to achieve that aim.

Question 41

Orthodox position on proportionality

Answer 41

not a ground for review under domestic (UK) law

Question 42

Current status of proportionality as a ground for JR

Answer 42

Judges have recognised that UKSC needs to conduct an authoritative review if Wednesbury unreasonableness is to be replaced by proportionality

Question 43

procedural impropriety

Answer 43

concerns a public decision-maker’s failure to follow correct statutory procedure and/or act fairly in a more general sense, as measured against common law standards

Question 44

Modern approach to procedural impropriety

Answer 44

Courts are more flexible - the judiciary focuses on the consequences of the non-compliance with the requirement and considers whether, in light of those consequences, Parliament could have intended that the outcome of that non-compliance should be the invalidity of the decision

Question 45

Rule on fairness - the more you have to lose...

Answer 45

the higher the fairness

Question 46

Common law rules affecting fairness

Answer 46

the other side must be heard / no one should be a judge in their own cause (bias)

Question 47

How do the courts approach potential breaches?

Answer 47

they focus on the consequence of breach and not on the language in the statute

Question 48

what fairness demands will depend upon the

Answer 48

context of the case

Question 49

Impact of direct bias on a decision

Answer 49

Direct bias will invalidate the decision

Question 50

Indirect bias test from Porter v Magill

Answer 50

whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased

Question 51

When would the duty to act fairly give way to necessity?

Answer 51

if only one person is empowered to decide a question, then they cannot be disqualified for bias, because no decision could be made