Traditional Judicial Review Flashcards
(18 cards)
purpose of judicial review
provides specific legal avenue to ensure government action remains within the confines of the law
Two key aspects of judicial review
- governance (accountability)
- legal scrutiny
3 main forms of governance
- legal (courts)
- political (parliament)
- quasi-judicial (ombudsmen)
Limits of traditional judicial review
- its mission is purely to look at the legality of a decision
- limited scope (lawful or not?)
2 key Functions of judicial review
- redress grievances
- accountability
Are only decisions of the government susceptible to judicial review? according to the CPR
- “decision, action, or failure to act in relation to the exercise of a public function”
- just needs to be a public body or a private body making public functions
- any person/body that exercises government power
Three main stages of judicial review
- Pre-action stage
- permission stage
- standing
pre-actions stage
- before C asks for permission to bring claim it attempts to notify potential D that they intend to bring a claim
- protocol letter
- provides opportunity for public body to correct their actions
permission stage
- C applies to court for permission to bring claim
- C serves form to D
- courts decide if C has standing/legal right to continue their claim
Standing stage
- courts need to determine there is “sufficient interest” accordint to senior courts act 1981 s31(3)
- courts have a wide discretion here
Time limit for JR
- claim must be brought within 3 months of decision/action of public body
- for planning cases time limit is 6 weeks
Remedies for JR
- quashing order (overturns illegal decision)
- prohibiting order (stops public body from taking the action)
- mandatory order (courts direct body to take positive step/make new decision)
- declaration (states clearly what the law is)
- injunctions
Procedural exclusivity
- the idea that JR is an exclusive process for claimants to bring claims against public authorities
- according to O’Reily v Mackman these matters cannot be brought by ordinary action just JR
Why might claimants try and avoid JR?
- more difficult course of action
- many steps/qualifications
What is the exception to procedural exclusivity held in Trim v north Dorset District council (2011)
-if public action interfers with private rights they can still only choose JR unless there” is a clear overlap with private law principles (e.g contract or tort)”
Exception to procedural exclusivity held in Day v Speltborune Borough Council (1984)
-if the public body acts in a way that gives rise to damages in negligence it could be pursued by private law instead of JR
Decision in Cocks v Thanet District council (1983)
-if an action by public body gives rise to private law claim but the main issue is the legality of the decision, to determine this the claimant must go through JR
Can individuals who have proceedings in private law raise a public law manner as their defence or do they have to go through JR?
- According to Wandsworth v Winder (1985) there is nothing to suggest that they cannot do this
- allowing Ds to bring claim in public law isn’t an abuse of process as Ds don’t choose in what manner they’re prosecuted so its only fair to allow them to defend in whatever manner they can
