Legitimate Expectation Flashcards
(15 cards)
What is a legitimate expectation ground of JR?
Idea that the expectation of either a procedure or a benefit, arising from a representation or promise made by a public body can be protected in law
What are the two types of legitimate expectation?
Procedural legitimate expectation
Substantive legitimate expectation
When can a procedural legitimate expectation arise?
If a public body has promised or represented that a particular procedure should be followed
Where there has been an established practice for the public body to use a particular procedure
What is the three stage approach the courts have adopted to assess legitimate expectation claims?
1) Has an expectation arisen?
2) Is the expectation legitimate?
3) Has the public body lawfully frustrated the legitimate expectation
When can an expectation arise in legitimate expectation grounds for JR?
Express promise on behalf of a public authority
- Specific representation
- Representation in policy
Regular practice which claimant can continue
- ‘Settled course of conduct’
What five criteria will be considered when judging whether an expectation is legitimate?
Clarity
Legality
Agency
Knowledge
Reliance
How clear must a promise be for someone to rely upon it?
“Clear, unambiguous and devoid of relevant qualification”
If it is a practice: something “so unambiguous, so widespread, so well-established and so well recognised as to carry within it a commitment to a group of taxpayers”
Why must legality be considered in terms of legitimate expectation? What two important caveats are there to legitimate expectation?
Cannot be bound by a promise which is ultra vires
NB: - The promise giving rise to the alleged legitimate expectation does not need to be made by the person or body who may be bound by it
- An expectation can still be legitimate where the public authority in the mistaken belief it was under a statutory duty to do what it had promised to do
When will a public authority not be bound by a representation of one of its agents?
When they have acted outside their authority in making a representation
Can a person claim that they had a legitimate expectation if they had no knowledge of the representation / past practice?
Previously - knowledge was an essential pre-requisite
Now - this is an area of contention - suggested that there are two doctrines here; legitimate expectation and also a doctrine of consistency in application of policy
Is detrimental reliance needed to evidence a legitimate expectation?
Not essential - but it would be the ‘exception, not the rule, that detrimental reliance will not present’
Would not be needed where a public body departs from an established policy
Reliance now - a non-determinative factor
When can a legitimate expectation be lawfully overriden?
If there is a sufficient public interest to override the legitimate expectation
How do courts approach whether a legitimate expectation should be fulfilled or not?
Approach in Coughlan: three categories
If LE is that a public body should bear in mind a previous policy or representation - review on grounds of Wednesbury unreasonableness
If it is purely procedural - should be complied with unless there is an overriding reason not to - considered in light of fairness here
If there is a substantive LE - court will decide whether frustration was so unfair as to amount to an abuse of power
These are not sealed but represent points on a sliding scale
How has proportionality changed the court’s approach to legitimate expectation?
Makes no distinction between substantive and procedural LE and just considers a proportionality approach
When will the courts revert to a rationality approach, back from proportionality?
When considering a high-policy or macro political context
