The mechanisms of JR

Question 1

What is JR?

Answer 1

the inherent power of the HC to supervise the actions of governmental bodies according to the principles of PL

Question 2

What does JR allow an individual to do?

Answer 2

bring a claim against a decision of a lower court, tribunal or self-regulating bodies.

Question 3

What is the aim of JR

Answer 3

To ensure that decisions are made lawfully and in accordance with EU and HR law

Question 4

JR is a growing area of litigation- what is the X increase in cases

Answer 4

8 X

Question 5

What did David Cameron promise to do in 2012

Answer 5

crack down on ‘time wasting’ caused by the ‘massive growth in the industry’ in JR application- hence subsequent changes to the CPR P 54 and S 31 SCA

Question 6

Why are JR so important?

Answer 6

because one case can have a great judicial value and set precedent. So, although most are rejected, those that make it through can be very powerful.

Question 7

How does the case of R v Lecicerter JJ, ex party Barrow illustrate the importance of JR cases?

Answer 7

a claim allowed union ‘lay people’ to accompany D in poll tax payment court hearing.

Question 8

Why is the case of R (Miller) important in terms of JR

Answer 8

has great constitutional significance and implications for the process of withdrawal from the EU

Question 9

Another case which demonstrates the importance of JR cases

Answer 9

R (Harrow Community Support Ltd) v Sec of State for Defence, ruled it was not in the public interest to move an anti-aircraft missile point on a residential block of flats, for one person trying to evoke article 8 HRA.

Question 10

Why are JR different from appeals

Answer 10

• JR differ from statutory appeals, because statutory appeals are based on statute, which provides the appeal right, whereas JR ‘rights’ are based on public law principles.
• An appeal challenges the substance of the case, whereas JR is about asserting public law rights.
• The outcome is different, if you are successful in an appeal a decision will be made as to the substance of the case, whereas if successful in JR, a decision is not made, the decision is sent back to the body.

Question 11

How does JR differ from private law appeals?

Answer 11

• There is different procedures for both. The procedure for private law appeals is laid down in the ‘white book’, while JR procedure is based partly on statue, and partly on common law.
• Remedies awarded are different. In a JR case remedies awarded are usually quashing orders and prohibiting orders.

Question 12

Where is a detailed procedure for bringing a claim in JR set out?

Answer 12

Senior Courts Act 1981 and the Civil Procedure Rules.

Question 13

What S of the CPR requires that a claim be brought within 3 months of the grounds first arising

Answer 13

S 54.5 (1)(b)

Question 14

What S of the CPR requires that the claim must be brought promptly

Answer 14

S 54.5(1)(a)

Question 15

Which case indicates that Part 54.5(1) (a) and (b) are separate requirements, and that permission is a discretionary matter so may be refused

Answer 15

R (Hardy) v Pembrokeshire County

Question 16

Who is amenable to JR

Answer 16

Governmental bodies- i.e. those set up by statute, however the courts have been left the role of deciding who will be amenable

Question 17

What did R v Panel on Take-Over and Merges, ex p Detain indicate?

Answer 17

There must be a public function being performed in order to be able to bring a claim in JR.
a private body, was ruled to be subject to JR despite it having no connection to government. The panel regulated the take-over for the entire industry, it could not be opted out of, so act almost as a public body. There was a public interest function being performed, which made it sufficient to allow for judicial review.

Question 18

Which case held that there was no public function in religious bodies, it is not enough to prove a public element

Answer 18

R v Chief Rabbi, ex p Wachmann

Question 19

What is the quote regarding public functions/ when a claim can be brought in Wachmann

Answer 19

‘there must be not merely a public but potentially a governmental interest in the decision-making power in question.’

Question 20

What was the legal principle arising from R (Beer) v Hampshire Farmers’ market

Answer 20

an organization which replaces a local authority run activity on authority owned land is subject to judicial review.

Question 21

Who is it worked out if the claim concerned is an issue of public law?

Answer 21

The exclusive principle ensures that C bring the correct type of claim against a public authority.

Question 22

Where was the exlcsmuitivty principle set out?

Answer 22

O’Reilly v Mackman: A prisoner was charged with disciplinary offences while in prison.
A claim was bought in private law asserting a public law right
It was held that one may not assert a public law right against a public authority using a private law action; JR must be used instead, to protect public authorities.

Question 23

In which case did land owner tried to assert a private law challenge against a public authority. It was held that a private law action may not be brought where it would undermine a statutory process; in this case, attaining planning permission.

Answer 23

Trim v North Dorset District Council

Question 24

When will the exclusivity principle not apply?

Answer 24

Where the c is asserting a private law right against a public authoirty

Question 25

In which case did the exclusivity principle not apply (negligent advise regarding planning permission)

Answer 25

Davy v Spelthorne BC: • A public authority negligently advised Davy over his rights regarding a planning permission application. It was held the public authority could be subject to a private law action. Negligent misstatements do not concern public law rights; therefore, a claim may be brought in private law.

Question 26

Another case where the exclusivity principle did not apply (classification of a degree)

Answer 26

Clark v University of Humberside: a claim was brought by Clarke purporting that her degree had been improperly classified. The exclusivity principle was rejected. It was held that she was able to assert a public law right against a public authority in private actions if the right is specific enough to the claimant. What is more, the type of rights being asserted were contractual, which are private law right.

Question 27

Another case where the exclusivity principle did not apply (guns)

Answer 27

Steed v Sec of State for the Home Department: Following the Dunblane School Massacre, the Home Secretary banned firearms in the UK. Steed claimed compensation in private law for his guns. Could a private law claim be made in such a situation? Yes, although a public law right was being asserted against a public authority, there was no exclusivity issue as the right specifically affected the claimant. It was held it was also acceptable to use a public law right as a defence in a private law proceeding.

Question 28

What are the second category of exceptions within when the exclusivity principle will not apply

Answer 28

Collateral challenges (both civil and criminal)

Question 29

Case for collateral challenges civil

Answer 29

Wandsworth LBC v Winder: C was a tenant of a flat owned by a council who increased the rent. C continued to pay the old rent, the council then took civil action against him, and sought an eviction order against him. C sought to raise the defence (public law) that the council had abused their discretionary powers. It was held it was acceptable to use a public law right to prevent eviction in a private law action (although, ultimately he lost his case on the substance)

Question 30

case for collateral challenges criminal

Answer 30

Boddington v British Transport Police: A local bylaw prevented smoking on trains. Boddington was arrested for such an act. Was public law right available as a defence. Yes, but the claim failed. Only the express words of a statute may remove such a right to raise a public law defence.

Question 31

Why must the claimant have sufficient interest/ standing

Answer 31

In order to limit the number of potential claimants in JR proceedings, S 31(3) of the 1981 Act requires that the claimant has ‘sufficient interest’ before permission is granted.

Question 32

In which case was there not sufficient standing because there was not sufficient interest regarding publicised but confidential tax deals between third parties

Answer 32

R v IRC, ex p National Federation of Self-Employed (avoidance of tax, HMR would allow to pay 2 years back instead of 6 if stop illegal conduct)

Question 33

In which case was there held to be sufficient standing because the claimants had statutory responsibility for the matter in question

Answer 33

R v Inspectorate of Pollution and another, ex p Greenpeace Ltd (expansion of nuclear complex)

Question 34

Case where sufficient interest was found because they were the only possible C and they had sufficient legal expertise in the area and the rule of law must be vindicated given the importance of the issue

Answer 34

R v SS for Foreign Affairs, ex p World Development Movement Ltd: agreed to build a hydro-electic dam in Malyasia

Question 35

In which case was no standing found because he no longer had any personal interest in the case

Answer 35

R (Feakings) v SS Environment: A farmer had no interest In the way the ash from his slaughtered cattle was disposed of, therefore was denied sufficient interest.