PUBLIC LAW L5 - JR - Preliminary issues

Question 1

Key case for unfettered executive discretion and court willingness to limit discretionary powers? (1)

Answer 1

Padfield v Minister of Agriculture, Fisheries and Food (1968)

Question 2

What did the case of R v Secretary of State for the Environment, ex parte Hammersmith and Fulham London Borough Council (1991) provide? (1)

Answer 2

Judicial review is not the same as appeal.

Question 3

What case described the cardinal approach and what is it? (2)

Answer 3

R v Epping and Harlow General Comrs, ex parte Goldstraw (1993) - where there is an appeals system, it is likely the courts will require this system to be exhausted before allowing a judicial review application to proceed.

Question 4

What five preliminary issues have to be considered before a judicial review claim can be pursued? (5)

Answer 4

1. Amenability
2. Procedural exclusivity
3. Standing
4. Time limits
5. Ouster clauses

Question 5

When will a decision be amenable to judicial review? (4)

Answer 5

1. If it is a public law decision
2. A public law decision is a decision or failure to act in relation to the exercise of a public function (CPR 54. 1(2)(A)(ii))
3. This is satisfied is a classic public body is exercising powers is statute or secondary legislation or the royal prerogative.
4. Otherwise, it is a matter of examining the nature of the power alongside key cases concerning self-regulatory bodies, and private companies who have had services ‘contracted out’ to them by public bodies.

Question 6

What was decided in the case of R v Panel of Take-overs and Mergers, ex parte Datafin (1987)? (2)

Answer 6

It was decided that if a non-public body exercises a public law function it will be subject to judicial review. It established an authority in understanding the court’s evolving approach to amenability.

Question 7

What cases provided that self-regulatory authorities will be generally found to be exercising public functions, if the matter in question has the necessary public character? (2)

Answer 7

R v Advertisings Standards Authority Ltd, ex parte Insurance Services plc (1989) and R v Bar Council, ex parte Percival (1990)

Question 8

In what cases has been found the decision of self-regulatory authorities have not been found to be amenable to judicial review? (2)

Answer 8

R v Disciplinary Committee of the Jokcey Club, ex parte Aga Khan (1993) and R v Chief Rabbi of the United Hebrew Congregation of GB and Commonwealth, ex parte Wachmann (1993).

Question 9

What general rule did the decision of O’Reilly v Mackman establish? (3)

Answer 9

It established a general procedural rule, that judicial review was the exclusive procedure for challenging public law decisions. Private law matters were to be dealt with by ordinary action and to bring public law challenge any other way would amount to an abuse of process.

Question 10

What are the exceptions to the procedural exclusivity rule? (3)

Answer 10

1. When neither party objected to the use of private law procedures.
2. When the contested decision was collateral (arose out of some other legal claim).
3. Mixed claims involving public and private law.

Question 11

What is the key case for the exceptions to the procedural exclusivity rule? (1)

Answer 11

Roy v Kensington and Chelsea Westminster Family Practitioner Committee (1992)

Question 12

What does the case of Clark v University of Lincolnshire and Humberside (2000) demonstrate? 91)

Answer 12

How the CPR have influenced the courts’ approach to procedural exclusivity.

Question 13

When are standing, time limits and ouster clauses relevant? (1)

Answer 13

In rare circumstances.

Question 14

What does standing / locus standi mean? (2)

Answer 14

An individual or organisation must have ‘sufficient interest in the matter to which the application relates’ (s.31 (3) SCA)

Question 15

What is the key case for standing and what was provided? (3)

Answer 15

Fleet Street Casuals - it was decided that individuals or organisations which are directly affected by a public law decision will be given standing. It emphasised the importance of the close connection test between the applicant’s degree of interest and the matter in contention.

Question 16

What other categories may also be given standing? (3)

Answer 16

1. Associations and representative groups
2. Pressure and interest groups
3. Concerned citizens

Question 17

What is the rule in regard to time limits? (7)

Answer 17

1. Must be applied for promptly and no later than three months (CPR Part 54.5(1))
2. There must be no ‘undue delay’ on the part of the Claimant (Senior Courts Act 1981, s.31(6)).
3. The court can extend time.(CPR Part 3.1(2)(a))
4. Time limit factors can affect whether and what relief is granted by the court.

Question 18

What is the limitation period for a challenge to planning decisions? (1)

Answer 18

Six weeks.

Question 19

What is the limitation period for a challenge to public procurement? (1)

Answer 19

30 days.

Question 20

Are the courts likely to hold up a total ouster clause? (1)

Answer 20

No.

Question 21

Key case for ouster clauses? (1)

Answer 21

Anisminic v Foreign Compensation Commission (1969)

Question 22

When will the court uphold an ouster clause? (1)

Answer 22

When it is a partial ouster clause which abridges the limitation period.

Question 23

What must be exhausted before the court will grant permission to bring a judicial review claim? (1)

Answer 23

Alternative remedies and processes.

Question 24

What alternatives to JR are there? (3)

Answer 24

1. Statutory right of appeal
2. Internal complaints / appeals procedures
3. Complaints to the ombudsman

Question 25

What happened in R (Cowl) v Plymouth City Council (2002)? (1)

Answer 25

JR refused.

Question 26

What is the two step procedure to bring a JR claim as provided in CPR part 54? (2)

Answer 26

The application for permission and the full 'inter partes' hearing.

Question 27

When will an application for permission to bring a JR claim be granted? (4)

Answer 27

When made to the Administrative Court or relevant tribunal, when they have standing and is made within time and there is an arguable case.

Question 28

What are the discretionary remedies for JR? (6)

Answer 28

1. Quashing order, most common - overturns the impugned decision and the public body must then take the decision again. 2. Prohibitory order - prevents public body from acting unlawfully. 3. Mandatory order - compels the public body to perform a public law duty imposed by law. 4. Declaration - court may declare what the legal position is, or what rights of the parties are. 5. Injunction - order a party to perform or refrain from performing, rare mand and prohib orders do same thing. 6. Damages - only awarded if court is satisfied that damages could have been awarded in a private law action or if the public body has breached its duties under the HRA 1998.

Question 29

What remedy may be granted at the permission stage? (1)

Answer 29

An injunction to provide a form of interim relief.