Nature and process of JR Flashcards
(25 cards)
What is judicial review?
Looking at whether a decision made by the government has been made correctly, and implemented according to law
What are the five preliminary issues that need to be considered before a JR claim can be pursued?
Amenability
Procedural exclusivity
Standing
Time limits
Ouster clauses
What does amenability mean in terms of JR preliminaries?
Only public law decisions are amendable to JR - meaning a claim to review the lawfulness of a decision, action or failure to act in relation to the exercise of a public function
Includes the use of prerogative powers
When will a private body be amendable to judicial review?
When exercising a governmental type function
Or a self-regulatory authority
If a decision has a statutory underpinning, as opposed to a duty being purely contractual - contracted out
What is the general procedural rule regarding exclusivity?
JR is the only procedure through which public law decisions should be challenged
Private law matters must be dealt with by ordinary action
Bringing a public law challenge in any other way than JR would be an abuse of process by the court
What are the exceptions to the procedural exclusivity rule?
If neither party object to the use of private law
If the contested public decision is collateral i.e. arose out of some other claim {mixed claims}
When does an applicant have standing for a judicial review claim?
Applicant must have sufficient interest in the matter to which the application relates
in particular - consider the importance of the connection between the applicant’s degree of interest and the matter in contention
When will an association be given standing?
If it is an association of individuals, who would themselves all be seen to have sufficient interest
Common for representative groups
Liberal approach now encouraged for groups
What key principle about the limitation of standing emerges from case law?
A group of individuals with no particular connection when considered on an individual basis, do not have any greater connection if they unite
When might a representative group be given standing, that otherwise might not be?
If it is highly important in vindicating the rule of law
Absence of any other responsible challenger
Nature of breach of duty
Prominent role of applicants
How has the liberalising trend towards standing been shown?
Approach to individuals who have a particular concern for issues
What is the time limit for JR?
Short and strictly applied
Must be filed promptly and in any event no later than 3 months after the grounds to make the claim first arose
Can time limits for JR be extended by agreement between the parties? What about the court?
Not by the parties
Yes, it can be extended by the court - if not allowing the claim would be ‘detrimental to good administration’
For which two areas are there abridged time limits for JR claims?
Planning decisions - 6 weeks
Public procurement - 30 days
What is an ouster clause?
A clause which excludes the jurisdiction of the court to conduct a JR
How do courts approach ouster clauses?
Hostile towards them - seen as a challenge to rule of law and courts have developed a presumption that Parliament did not intend to exclude JR
Only the most explicit wording could oust the jurisdiction of the court
How do the court approach partial ouster clauses?
Partial ouster - a provision which seeks to exclude the jurisdiction of the court once the time limit has expired
Courts are responsive to these - reinforced by the CPR
What must have been exhausted before any JR claim can be brought?
All alternative remedies
What are the two stages of an application for permission for judicial review?
Application for permission - only granted if an application has standing and is made within time, and there is an arguable case
Full inter partes hearing
What remedies can an applicant for judicial review receive that are specific to JR?
Quashing order - overturns decision, and public body must then take the decision again, implying the correct law or following a fair procedure
Prohibitory order - prevents a public body from acting or continuing to act unlawfully
Mandatory order - compels the public body to perform a public law duty
What remedies can an applicant for JR receive that are not exclusive to JR?
Declaration - court may declare what the legal position is / what the rights of the parties are
Injunction - sometimes granted as a form of interim relief
Damages - can be awarded by only if a) the court is satisfied that damages could have been awarded in a private law action or b) the public body has breached its duties under the HRA
How does the court approach which remedies to issue for JR?
All remedies are discretionary in nature
Increasingly as standing has widened - remedies may be where narrowing will take place
Now applied in a proportionate way in order to balance the degree of individual interest in the matter against the wider public interest
Can courts extend time limits?
Yes if general limits of 3 months, promptly and without undue delay
NO if a partial ouster clause
When are damages available in public law?
Never for a breach of public law - only incidental claims e.g. trespass
