Public: Judicial Review

Question 1

What is judicial review?

Answer 1

A process by which courts check the lawfulness of decisions, actions, or failures to act by public bodies, focusing on whether decisions are made correctly according to law rather than substituting their merits.

Question 2

How does judicial review differ from an appeal?

Answer 2

Judicial review examines the lawfulness of a decision-making process, not the merits; courts do not substitute their own decision but can require a decision be remade lawfully.

Question 3

List the five preliminary issues to consider before pursuing a judicial review claim.

Answer 3

Amenability, procedural exclusivity, standing, time limits, and ouster clauses.

Question 4

What is amenability in the context of judicial review?

Answer 4

Whether a decision or action is appropriate for judicial review, typically involving public law decisions by public bodies exercising statutory or prerogative powers.

Question 5

What is the significance of R v Panel of Take-overs and Mergers, ex parte Datafin?

Answer 5

Established that bodies performing public law functions, even if private in origin, are amenable to judicial review based on the nature of their functions rather than source of power.

Question 6

How do courts determine if a self-regulatory body’s decision is amenable to judicial review?

Answer 6

By assessing if the body exercises a public function with public law consequences, often using a ‘but for’ test: if Parliament would have had to regulate absent the body’s initiative.

Question 7

What is procedural exclusivity in judicial review?

Answer 7

The principle that public law decisions must be challenged by judicial review rather than private law actions, to prevent abuse of process.

Question 8

What exceptions exist to the procedural exclusivity rule?

Answer 8

Where neither party objects to using private procedure, and where the public law issue is collateral to a private law claim (e.g., Roy v Kensington and Chelsea FPC).

Question 9

What is standing (locus standi) in judicial review?

Answer 9

The requirement that the applicant has a ‘sufficient interest’ in the matter, meaning a connection to or concern with the decision challenged.

Question 10

What factors influence standing for associations?

Answer 10

Logical connection between group’s members and the decision, practicality of joint action, and that members would individually have standing.

Question 11

How did Fleet Street Casuals influence standing?

Answer 11

Advocated a liberal approach allowing pressure groups or concerned citizens to have standing to vindicate rule of law, even without direct personal interest.

Question 12

What was the restrictive approach in Rose Theatre Trust?

Answer 12

Held that a group formed to challenge a decision lacked standing because its members lacked an individual greater right or expectation than other citizens.

Question 13

How was standing liberalised in Greenpeace and World Development Movement cases?

Answer 13

Courts allowed environmental/interest groups standing based on expertise, representation of those affected, constitutional importance, absence of other challengers, and seriousness of breach.

Question 14

Can a concerned citizen have standing in judicial review?

Answer 14

Yes, if they show genuine concern for constitutional or public issues and there are no better-placed challengers; depends on facts (e.g., Rees-Mogg).

Question 15

What are the time limits for bringing a judicial review claim?

Answer 15

Must be filed promptly and no later than three months after grounds arise, with limited scope for extension if undue delay causes prejudice or is detrimental to administration.

Question 16

Are there shorter time limits for specific judicial review areas?

Answer 16

Yes: six weeks for planning decisions after 1 July 2013 and 30 days for public procurement decisions.

Question 17

What is an ouster clause?

Answer 17

A legislative provision appearing to exclude or limit judicial review jurisdiction, either totally or partially by time limits.

Question 18

How do courts treat total ouster clauses?

Answer 18

They apply a strong presumption against excluding judicial review, often interpreting such clauses narrowly to avoid ousting jurisdiction (e.g., Anisminic, Privacy International).

Question 19

How do courts treat partial/time-limitation ouster clauses?

Answer 19

They uphold them to abridge limitation periods, striking out claims after expiry (e.g., Smith v East Elloe, ex parte Ostler).

Question 20

What must be exhausted before bringing a judicial review claim?

Answer 20

Alternative remedies and processes like statutory appeals, internal complaints, or ombudsman must be considered or exhausted.

Question 21

Describe the two-stage procedure for judicial review applications.

Answer 21

1) Ex parte application for permission (leave) requiring standing, timely filing, and arguable case; 2) Inter partes hearing with full argument on grounds.

Question 22

What remedies are available in judicial review?

Answer 22

Quashing order, prohibitory order, mandatory order, declaration, injunction, and damages (subject to private law analogies or Human Rights Act breaches).

Question 23

What is a quashing order?

Answer 23

A remedy that overturns the impugned decision, requiring the public body to remake it according to correct law or procedure.

Question 24

What is a prohibitory order?

Answer 24

A remedy preventing a public body from acting or continuing to act unlawfully.

Question 25

What is a mandatory order?

Answer 25

A remedy compelling a public body to perform a public law duty imposed by law.

Question 26

Under what conditions can damages be granted in judicial review?

Answer 26

Only if damages could have been awarded in private law action or the public body breached duties under the Human Rights Act 1998.

Question 27

What is illegality in judicial review?

Answer 27

A ground of review ensuring public bodies act within powers (ultra vires), understand and apply legal limits correctly, and consider relevant factors.

Question 28

What are sub-categories of illegality?

Answer 28

Simple illegality (ultra vires), errors of law, errors of fact, abuse of discretion, and retention of discretion.

Question 29

Define simple illegality.

Answer 29

When a decision-maker acts beyond the legal power granted, e.g., exercising powers outside statutory scope.

Question 30

What is the principle of legality?

Answer 30

A statutory interpretation presumption that Parliament does not intend to infringe fundamental rights or rule-of-law principles without clear authorization (e.g., Witham).

Question 31

What constitutes an error of law in JR?

Answer 31

A mistake interpreting or applying legal rules governing the decision-maker's powers; all errors of law are reviewable if decisive, with some exceptions.

Question 32

What are exceptions to reviewability of errors of law?

Answer 32

Errors not decisive, decisions in special rule systems where finality is provided, or where legal provision is so imprecise differing interpretations are acceptable.

Question 33

What types of factual errors are reviewable?

Answer 33

Precedent/jurisdictional facts, no evidence for a fact, and mistakes or ignorance of an established fact affecting decision fairness.

Question 34

What is a precedent fact?

Answer 34

A factual finding on which the jurisdiction to decide depends; if incorrect, JR can review whether the fact exists (e.g., Khawaja).

Question 35

What is the 'no evidence' rule?

Answer 35

If a decision's factual basis has no supporting evidence, the decision can be quashed (e.g., Coleen Properties).

Question 36

When is ignorance or mistake of an established fact reviewable?

Answer 36

If there is a mistake about an uncontentious, objectively verifiable fact, not due to the applicant, and it played a material part in reasoning causing unfairness (E v SSHD).

Question 37

What is abuse of discretion?

Answer 37

When a decision-maker misuses statutory discretion by failing to consider relevant factors, considering irrelevant ones, or using power for improper purposes.

Question 38

What constitutes taking relevant or irrelevant considerations?

Answer 38

Failing to take mandatory factors into account or taking prohibited factors into account; discretionary factors may be considered if not irrational.

Question 39

What is improper purpose in abuse of discretion?

Answer 39

Using statutory power for a purpose other than that intended by Parliament (e.g., Padfield where Minister refused investigation to avoid embarrassment).

Question 40

What is retention (fettering) of discretion?

Answer 40

When decision-makers restrict their own ability to exercise discretion, e.g., rigid policies or refusing to consider exercising power (e.g., Fire Brigades Union).

Question 41

How can policy fetter discretion?

Answer 41

By adopting a rigid or blanket policy that prevents consideration of individual circumstances unless exceptions are evidenced (e.g., Brent LBC, Collymore).

Question 42

What is unlawful delegation of discretion?

Answer 42

When a decision-maker delegates statutory power to another without authorization, contrary to the intention of Parliament (except under principles like Carltona).

Question 43

What is the Carltona principle?

Answer 43

Presumption that ministers can delegate decision-making to civil servants within their department, as part of practical governance, with accountability retained.

Question 44

How does judicial review discretion on remedies act as a counterbalance?

Answer 44

Courts may tailor remedies proportionately based on applicant's interest versus public interest, avoiding overly broad relief where interest is attenuated (e.g., Walton).

Question 45

What is the Wednesbury test for unreasonableness?

Answer 45

A decision is unlawful if it is so unreasonable that no reasonable authority could ever have come to it (Associated Provincial Picture Houses v Wednesbury Corporation) fileciteturn2file1.

Question 46

How is 'irrationality' related to Wednesbury unreasonableness?

Answer 46

Often treated as a sub-category of unreasonableness: a decision so outrageous in its defiance of logic or accepted moral standards that no sensible person could have arrived at it (GCHQ) fileciteturn2file1.

Question 47

What are the three main classes of unreasonableness identified by De Smith & Jowell?

Answer 47

Material defects in decision-making process; oppressive decisions; decisions that violate constitutional principles fileciteturn2file1.

Question 48

What is a material defect in decision-making in the context of unreasonableness?

Answer 48

Failing to weigh relevant factors properly or failing to provide a coherent chain of reasoning (irrationality) fileciteturn2file1.

Question 49

Explain intensity of review in unreasonableness challenges.

Answer 49

Degree of scrutiny: higher intensity/sub-Wednesbury for fundamental rights; lower intensity/super-Wednesbury for social/economic policy fileciteturn2file10.

Question 50

How does proportionality relate to unreasonableness in JR?

Answer 50

Proportionality offers a more structured review, especially in rights cases under HRA/EU law; intensity of review may align with proportionality principles fileciteturn2file10.

Question 51

Give an example of an oppressive unreasonable decision.

Answer 51

Imposing a penalty for lawful behavior or causing excessive hardship without necessity (e.g., Wheeler v Leicester City Council) fileciteturn2file15.

Question 52

What is procedural impropriety in JR?

Answer 52

Failure by a public body to follow required statutory procedures or to act fairly according to common law fairness standards fileciteturn2file2.

Question 53

How do courts assess breach of procedural statutory rules?

Answer 53

Modern approach focuses on consequences: whether Parliament intended non-compliance to invalidate decision (e.g., Soneji, JN Cameroon) fileciteturn2file2.

Question 54

When does the duty to act fairly arise?

Answer 54

Applies to all public law decisions affecting rights/interests; extent depends on context and stakes (Ridge v Baldwin) fileciteturn2file2.

Question 55

What factors determine the level of fairness owed?

Answer 55

Nature of decision-maker, importance of interests at stake, context; more at stake implies higher fairness (Durayappah; Lloyd v McMahon; McInnes) fileciteturn2file0.

Question 56

List the elements of the 'right to be heard'.

Answer 56

Notice of case against, opportunity to make representations (written/oral as appropriate), ability to call/cross-examine witnesses if serious, legal representation when necessary, and reasons for decision if fundamental interests affected fileciteturn2file11.

Question 57

What is the importance of giving reasons in fairness?

Answer 57

No general common law duty, but desirable for accountability; required where fundamental interests at stake (Doody) fileciteturn2file11.

Question 58

What is direct bias in JR and its effect?

Answer 58

Direct personal or pecuniary interest disqualifies decision-maker automatically, invalidating decision (Dimes) fileciteturn2file7.

Question 59

What is the test for indirect bias?

Answer 59

Whether a fair-minded and informed observer would conclude there is a real possibility of bias (Porter v Magill) fileciteturn2file7.

Question 60

Give examples of indirect bias situations.

Answer 60

Pre-formed opinions, participation by someone with interest, policy bias where decision-maker committed to policy but must still consider objections impartially fileciteturn2file8.

Question 61

What are the two types of legitimate expectation?

Answer 61

Procedural (expectation of particular procedure based on promise/practice) and substantive (expectation of a tangible benefit based on assurance) fileciteturn2file3.

Question 62

How does a procedural legitimate expectation arise?

Answer 62

From an express promise that a procedure will be followed or from an established past practice (Liverpool Taxi Operators; GCHQ) fileciteturn2file3.

Question 63

How does a substantive legitimate expectation arise?

Answer 63

From an assurance/promise leading to belief of receiving a specific benefit (Preston; Asif Khan; Coughlan) fileciteturn2file3.

Question 64

What factors determine whether an expectation is legitimate?

Answer 64

Clarity, legality, representation by an appropriate agent, knowledge, reliance; context-specific (MFK Underwriting; Davies; Bibi; Walker) fileciteturn2file4.

Question 65

How are legitimate expectations lawfully frustrated?

Answer 65

Procedural: allowed if overriding public interest (e.g., national security in GCHQ) with fairness; substantive: assess fairness vs overriding interest, possibly requiring proportionality (Coughlan; Hamble Fisheries; Coughlan categories) fileciteturn2file6.

Question 66

What are Coughlan's categories for legitimate expectation frustration?

Answer 66

(a) Expectation only that policy be considered → Wednesbury review; (b) Procedural expectation → procedure must be followed unless overriding reason; (c) Substantive expectation → assess if frustration is unfair or abuse of power, weighing fairness against public interest fileciteturn2file6.

Question 67

What is sub-Wednesbury review?

Answer 67

A more intense scrutiny applied in cases affecting fundamental rights or high policy matters, where courts apply heightened review though still under Wednesbury principles fileciteturn3file3turn3file9.

Question 68

What is super-Wednesbury review?

Answer 68

A lower intensity review for social, economic, or high-policy decisions, where courts show deference and only intervene in exceptional circumstances fileciteturn3file5.

Question 69

How do decisions violating constitutional principles fit into unreasonableness?

Answer 69

Decisions that are inconsistent, uncertain, or arbitrary, undermining rule of law or equality before the law, can be quashed as Wednesbury unreasonable on constitutional grounds fileciteturn3file19.

Question 70

When is there a duty to give reasons in judicial review contexts?

Answer 70

Although no universal duty, reasons are generally required where fundamental interests are affected or where fairness demands clarity; trend shows increasing expectation to give reasons unless justified not to (e.g., Doody; Oakley) fileciteturn3file11turn3file18.

Question 71

How have courts approached reasons for decisions in planning contexts?

Answer 71

In Oakley, the Court of Appeal advocated reasons to improve decision quality and transparency, though still balanced against practical burdens fileciteturn3file18.

Question 72

What did Nadarajah and Abdi establish regarding legitimate expectation?

Answer 72

Introduced proportionality as standard for assessing frustration of both procedural and substantive expectations, weighing competing interests to justify denial fileciteturn3file10.

Question 73

How does proportionality influence legitimate expectation cases?

Answer 73

Courts assess whether denial is a proportionate response to legitimate public interest aims, with unambiguous promises and detrimental reliance making justification harder fileciteturn3file16.

Question 74

What distinguishes procedural from substantive legitimate expectations in terms of scrutiny?

Answer 74

Procedural expectations require fair process, usually fulfilled unless overriding interest; substantive expectations require structured proportionality assessment to justify overriding assurances fileciteturn3file10.

Question 75

Which cases signal increased acceptance of proportionality in unreasonableness review?

Answer 75

Cases like Daly, Pham, Youssef reflect shift towards proportionality approach for rights-related JR, indicating structured review beyond strict Wednesbury fileciteturn3file1turn3file9.

Question 76

What factors determine intensity of review under proportionality?

Answer 76

Balancing institutional competence and importance of rights or public interests: fundamental rights attract stricter proportionality, macro-policy contexts revert to Wednesbury-style review fileciteturn3file9.