Public Law L5 - Preliminary issues

Question 1

What is judicial review concerned with? (2)

Answer 1

The checking of the exercise of public power. The courts should be concerned with whether a decision has been correctly made and implemented according to the law.

Question 2

What happens when statutory discretion is wide / potential for unlimited discretionary power? (1)

Answer 2

The courts have shown themselves willing to identify certain limit within which executive power must be exercised.

Question 3

Is judicial review the same as appeal? (1)

Answer 3

No.

Question 4

What is the cardinal approach? (2)

Answer 4

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 5

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

Answer 5

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

Question 6

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

Answer 6

If it is a public law decision.

A public law decision is a decision or failure to act in relation to the exercise of a public function.

This will be satisfied if a classic public body exercising powers whose source is statute or secondary legislation or the royal prerogative.

Otherwise, it is a matter of examining the nature of the power, alongside the factors identified in key cases concerning self-regulatory bodies, and private companies.

Question 7

When are self-regulatory bodies found to be exercising public functions? (1)

Answer 7

If the matter in question has the necessary public character.

Question 8

What is the general procedural rule regarding judicial review? (3)

Answer 8

Judicial review was the exclusive procedure for challenging public law decisions. Private law matter were to be dealt with by ordinary action. To bring public law challenge in any other way would amount to an abuse of process.

Question 9

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

Answer 9

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

Question 10

What is meant by standing? (1)

Answer 10

An individual or organisation must have sufficient interest in the matter to which the application relates.

Question 11

What did Fleet Streets Casuals provide? (1)

Answer 11

Individuals or organisations which are directly affected by a public law decision will have standing.

Question 12

What two stage approach has developed towards standing since Fleet Street Casuals? (4)

Answer 12

Initial permission stage - at this stage the standing test is designed to turn away those with little hope of success or vexatious litigants.
Full hearing stage- standing can be re-considered. At this stage the court will consider, in more details whether the applicant can show a strong enough case on the merits, taking into account the proximity of his connection in the case.

Question 13

What other groups of people may also be given standing? (3)

Answer 13

Associations and representative groups, pressure / interest groups and ‘concerned citizens.’

Question 14

What is the time limit to bring a judicial review claim? (4)

Answer 14

Promptly and no later than three months, no undue delay on part of the claimant, the court can extend time, time limit factors can affect whether and what relied is granted by the court.

Question 15

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

Answer 15

Six weeks.

Question 16

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

Answer 16

30 days.

Question 17

What is an ouster clause? (1)

Answer 17

It appears to exclude the jurisdiction of the court to conduct judicial review.

Question 18

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

Answer 18

No.

Question 19

When are the courts likely to uphold a partial ouster clause? (1)

Answer 19

When the ouster clause abridges the limitation period.

Question 20

What has recent legislation seen regarding the HRA 1998? (2)

Answer 20

The insertion of provisions excluding the courts’ duty to use the interpretative powers available to them under Section3 HRA 1998 when reviewing the basis on which government may have used powers provided by that legislation.

Question 21

What alternative remedies and processes should be followed before the court will grant permission to bring a judicial review claim? (3)

Answer 21

Statutory right of appeal, internal complaints or appeal procedures, complaint to the ombudsman.

Question 22

What is the three stage procedure to bring a judicial review claim? (2)

Answer 22

Application for permission, permission granted if sufficient interest and arguable case and the full ‘inter partes’ hearing.

Question 23

What should application for permission be? (4)

Answer 23

Made to the Administrative Court or relevant Tribunal and permission will be granted if they have standing , the application is made within time and there is an arguable case.

Question 24

What happens at the full inter partes hearing? (1)

Answer 24

The applicants will present the grounds to challenge the decision.

Question 25

What are the remedies for judicial review? (12)

Answer 25

Quashing order – most common remedy, it overturns the impugned decision and the public body must then take the decision again. Mandatory order – compels the public body to perform a public law duty imposed by law. Prohibitory order – prevents a public body from acting unlawfully. Declaration – can be made alone or alongside other orders, the court may declare what the legal position is, or what the rights of the parties are. Injunction – orders a party to perform, or refrain from performing a specific act, rare as mandatory and prohibitory orders do the same thing. However, sometimes granted at permission stage to provide a form of interim relief. Damages – only awarded if the 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 26

What are quashing, mandatory and prohibitory orders known as? (2)

Answer 26

Prerogative order and they are specific to judicial review.