Procedural Impropriety

Question 1

What is procedural impropriety?

Answer 1

Lord Diplock in GCHQ- ‘failure to act with procedural fairness’

Question 2

What values does PROCEDURAL FAIRNESS reflect? instrumental/non instrumental

Answer 2

instrumental: it helps to ensure accurate outcomes
Non-instrumental: fairness, the rule of law and non-arbitrary existence of public powers/authorities

Question 3

Traditional Approach- Mandatory- makes a decision VOID or Directory? case law

Answer 3

Mandatory- Bradbury v Enfield LBC 1967- legal error- merging schools without given notice
Directory- Coney v Choyce 1975- minor shift from statute, since notice was given through letters, but wasn’t posted at the main entrance

Question 4

Modern Approach- significance of the error, first suggested in Australian Case Project Blue Sky Inc#

Answer 4

Compliance with statute/ discretion/ consequences of decision
Jeyeanthan 2000- an appeal for a rejected claim- no injustice was caused to Jeyeanthan- pure technicality

Question 5

What are statutory consultations and what criteria must they follow?

Answer 5

Contributions to policy formation and decision-making- consult before making a decision
ex parte Gunning 1985 principle, endorced in Moseley 2014- must be done when proposals are in a formative stage- a case regarding the Council Tax Reduction Scheme, where taxpayers were not consulted
must give sufficient reasons
adequate time must be allowed for the response- varies depending on context

Question 6

The Rules of Natural Justice- fairness- case law

Answer 6

Ridge v Baldwin 1964- dismissed, equals to no pension rights- required
Lloyd v McMahon- 1987- depends upon character of the decision making body
Ex parte Doddy 1994- dependent on context of the decision

Question 7

Hear the other side- audi alteram partem principle

Answer 7

Notice of the case against you
Reasons for the decision
right to an Oral Hearing
What does justice demand in the context of the case?

Question 8

Notice of the case against you- first part of ‘audi alteram partem’

Answer 8

the factors that may lead the public body to make a decision not in your favour- ex party Fayed 1998- unless the applicant knows the areas of concern it will be impossible for him to make it out of his case- Lord Woolf
Bank Mellat 2- serious consequences of the decision

Question 9

A duty to give reasons- audi alteram partem’

Answer 9

No general duty at common law, although statutes will often require reasons to be given
Or
it comes down to context
ex parte Doddy 1994- serious negative effects of the decision

Question 10

Oral Hearing- audi alteram partem

Answer 10

aspects of cases which are better explained in person Osborn v Parole Board 2013

Question 11

What are the requirements of an oral hearing?

Answer 11

ex parte Tarrant 1985

Question 12

Legal Representation

Answer 12

Ex parte Hone 1988

Question 13

Witness Cross-examination

Answer 13

Ex parte St. Germain No 2

Question 14

Sufficient time to prepare

Answer 14

ex parte Polemis 1974

Question 15

Reluctance of courts to act as a legislature- no duty to consult at common law

Answer 15

BAPIO case and Plantagenet Alliance LTD
Court should not contravene Parliament’s intentions by adding a further procedure as such consultation exercise

Question 16

No notice given makes a decision void or claimant can claim damages

Answer 16

Baggs Case 1615- expelled from Corporation- no hearing had taken place
Cooper- demolition of a building

Question 16

What is actual bias?+ case law

Answer 16

A decision maker has an interest of his own in the outcome of the decision- Re Medicaments and Related Classes of Goods No 2

Question 17

What is not bias?

Answer 17

ex parte McCarthy- solicitor of defendant and clerk were from the same firm. Yet no unfairness was found during the proceedings.

Question 18

Automatic Disqualification Rule- can be financial or non-financial

Answer 18

Financial Interest- must be more than de minimis- Dimes Grand Junction Canal case
Non-Financial- judge in his own cause- Pinochet No2

Question 19

What is apparent bias?

Answer 19

A probability, danger or possibility of bias- R v Gough

Question 20

What is not apparent bias?- as appears to a fair minded observer

Answer 20

Porter v Magill 2001- places public confidence at the heart

Question 21

What is the ‘fair minded observer’?

Answer 21

Gillies case- assumed to be aware of ‘all the facts that are capable of being known by members of the public’

Question 22

Is meant to place public at the heart, but likely results are that it reflects the views of the judge?- case law

Answer 22

Taylor v Lawrence- judge found in favor of the claimant
Stubbs v The Queen- found apparent bias on the part of the judge who heard an appeal from a criminal trial