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Question 1

What are the public authorities that can be reviewed?

Answer 1

Government departments and bodies, anything that falls within the scope of the state, the case law involved in JR is therefore very varied.

Question 2

Do the courts act as a review court of appeals court?

Answer 2

A reviews court and they will only interfere with decisions if they have been taken in an unlawful manner (it concerns the way decisions are made, not whether the decision is right or wrong) stopping them interfering with decisions of the executive.

Question 3

What does R v Cambridge Health Authority give authority for?

Answer 3

Bingham said the courts function is to rule on lawfulness of decisions only, not to interfere with the merits of the decision.

Question 4

What can JR do? Where can we find the remedies available?

Answer 4

S32 Senior Courts Act 1981 and there are 6 available:

• a quashing order - quashing a decision made
• a prohibitory order - stopping someone doing something
• a mandatory order - making a body do something
• declaration - a piece of paper saying someone has acted unlawfully
• injunction - stopping or preventing something from happening
• damages - this is rare and if it is they will be nominal

Question 5

Who can bring an application for JR?

Answer 5

Only those with sufficient interest, a legal interest.

Question 6

Which case interpreted the meaning of sufficient interest?

Answer 6

World development movement - tax payers money to build a damn. The courts looked at it due to the seriousness of the allegations and overlooked the close relationship needed. The emphasis moved from the relationship to the subject matter.

Question 7

Why would you want to limit who could bring a claim in JR?

Answer 7

So the court system isn’t flooded so only the most serious cases are heard.

Question 8

Whose decisions can be JR?

Answer 8

Public bodies, in the UK we do not have a legal definition of this. So government and government departments and anything falling under the umbrella of the state. This was restricted until the case of Datafin.

Question 9

What are the facts of Datafin?

Answer 9

A group set up between businesses to overview mergers and takeovers in the city. They would look into things if there were suggestions rules were not being followed or something went wrong. It wasn’t s up by statute. Someone wanted to complain but they would not look at it so they seemed JR. JR is normally only for those bodies which statute have gave powers but they looked into it as they carried out a public function and if they didn’t do it the government would have to. Emphasis changed from where the source of the power came from to the actual power being exercised.

Question 10

When answering an exam question on JR what is the first thing that should be established?

Answer 10

Whether the decision is subject to JR by looking at the conditions that need to be satisfied (public body, delegated powers, sufficient interest).

Question 11

Can JR be viewed as part of the separation of powers?

Answer 11

Yes as it is a mechanism which the judiciary use to exert control over the executive.

Question 12

Which decisions are susceptible to JR?

Answer 12

Not all decision are. To qualify the following conditions must be satisfied:

• the decision must be made by a public body (Aga Khan - jockey club; Datafin - mergers)
• decision must be made under delegated powers (only decisions made under delegated powers are open to JR)
• you must have permission of the court to bring the claim - is there a case to be answered and do you have sufficient interest to bring the case (locus standi)

Question 13

What is JR?

Answer 13

A discretionary mechanism by which anybody can ask the court for redress of a public authorities decision that has affected gem. It’s a check and balance within the constitution where the judiciary reviews part of the executive.

Question 14

How can a claimant bring an action where they have no direct interest in a case?

Answer 14

If there is a wider point of public interest (Greenpeace No 2).

Question 15

What are the here grounds for JR?

Answer 15

They came from the CCSU case:

• illegality
• irrationality
• procedural impropriety (contrary to the rules)

Question 16

How can you go about making an application for JR?

Answer 16

• part 54 civil procedure rules - sets out forms to use, timescales etc and is accompanied by practice directions (guidance for how CPR works)
• pre action protocol - try to get parties to settle out of court
• s31 senior courts act 1981 - sufficient interest

Question 17

Using the pre action protocol what should defemdants do before issuing a claim?

Answer 17

Write to the bodies explaining what the problem is and what they want to happen, these bodies should them reply initiating a dialogue between the parties to try and resolve the dispute.

Question 18

What happens if a pre action protocol fails?

Answer 18

They need to complete an N461 claim form and send to the administrative section of the high court asking permission to bring a claim.

Question 19

What type of things will the judge look at on the claim form?

Answer 19

• if the claim is within the time limits
• do they have sufficient interest
• we they wanting to review a public body
• has the person exhausted all other remedies

Question 20

Is there any other redress if permission is refused for bringing a claim?

Answer 20

You can ask for the matter to be reconsidered at an oral hearing. If still refused you can apply to the court of appeal for permission. There are no other remedies if that fails.

Question 21

What are the time limits imposed on bringing a claim?

Answer 21

Set out in part 54 Civil procedure rules:

• file claim promptly
• no later than 3 months after the grounds which form the basis of the claim first arose

Even if these are met it may still be refused as it has not been prompt in any event.

Question 22

Where does JR actually come from?

Answer 22

There is no single answer but there are two main theories:

• ultra vires (beyond the power)
• common law theory

Question 23

What is the ultra vires (beyond the power) theory of JR?

Answer 23

JR is a spin off of parliamentary supremacy (no body can override or set aside that which parliament does). Parliament gives powers to public bodies and the courts are allowed to review these to ensure they do what parliament have allowed them to do.

Question 24

What is the common law theory of JR?

Answer 24

This opposes the ultra vires theory. It says ultra vires doesn’t explain things adequately and isn’t accurate enough. JR doesn’t come from the implied jurisdiction from parliament, it comes from the courts themselves, from the constitutional rules. Parliament and the courts get their powers from constitutional common law rules, neither is above the other.

Question 25

Where do the grounds for Jr come from?

Answer 25

The CCSU case.

Question 26

What are the sub grounds that come within the umbrella of illegality?

Answer 26

• ultra vires
• taking into account relevant or irrelevant considerations
• unlawful delegatiOn of powers

Question 27

What is meant by a body acting ultra vires?

Answer 27

Acting beyond the powers given to them (if given powers to decide A and they decide B they have gone beyond their powers) AG v Fulham Corporation.

Question 28

Give a case example of ultra vires and the facts?

Answer 28

AG v Fulham Corporation - the bath and wash houses act allowed local authorities to produce them. Fulham were given the power to open one and decided to charge people to use he facilities. They exceeded powers by trying to get a commercial advantage of something which was supposed to be for everybody.

Question 29

What is meant by irrelevant or relevant considerations?

Answer 29

Where a body can fail to take relevant considerations into account or may take considerations that are irrelevant into account when making its decision.

Question 30

Why do public bodies need discretion to exercise their public law duties?

Answer 30

They cannot be expected to cater for every single thing a public body may have to do. The power is normally given on a discretionary basis however it is not unlimited.

Question 31

Give a case example for irrelevant considerations?

Answer 31

R v Somerset County Council - local authority given the power to manage the land as it saw fit by statute but that it had to benefit the community as a whole. Decision was made to ban hunting on the land. Local authority based the decision on morality when it should have looked at the benefit of the community as a whole.

Question 32

What did the court say about morality in the cas of R v Somerset County Council?

Answer 32

It was irrelevant to take into account in this case but should be looked at on a case by case basis.

Question 33

What is the principle that comes from when powers have been granted to someone?

Answer 33

That they cannot further delegate that power to someone else (principle of non delegation)(Barnard v National Dock Labour Board).

Question 34

Give a case example that looks at power being delegated and then again within illegality?

Answer 34

Barnard v National a Dock Labour Board - rules about when dock workers could be dismissed, it had to be done by the board, dock manager dismissed them instead, illegal.

Question 35

What did Lord diplock say about irrationality in ten CCSU case?

Answer 35

It applies to a decision that is so outrageous in its defiance of logic that no sensible person who applied his mind at the question could have arrived at it.

Question 36

What is wednesbury unreasonableness?

Answer 36

Now known as irrationality (associated pictures v wednesbury corporation). Cinemas were allowed to open on a Sunday but certain classes of children were not allowed to attend. This would affect revenue. Decision maker took into account the correct things but it was manifestly unreasonable.

Question 37

When will the courts challenge a decision as being irrational?

Answer 37

If there is overwhelming evidence that is so bad.

Question 38

When looking at the decision making process for irrationality what are the courts actually looking at?

Answer 38

The decision itself and whether it is reasonable or not. This is why the bar is set so high. It has to be SO unreasonable as they are meddling with the merits of a decision.

Question 39

What came from the Brind case?

Answer 39

It questioned whether the bar was set too high. It had to be to maintain the judiciary acting within a supervisory role, maintaining their role within the separation of powers.

Question 40

Is Jr flexible?

Answer 40

Yes, you don’t have a right to it, you have to ask permission and the remedies available are discretionary.

Question 41

What case is an example of the courts looking into some cases deeper than others?

Answer 41

Smith - lawfulness of a policy decision stating homosexuals cannot serve in the armed forces. The courts refused to interfere saying it was not irrational and deferred to parliament as both House of Parliament approved the policy, so for the courts to say it was irrational would be saying parliament was.

Question 42

Where does the classification of procedural impropriety come from?

Answer 42

CCSU. It’s about the procedure behind the decisions.

Question 43

How can you challenge a decision for procedural impropriety?

Answer 43

Decision maker has acted legally, ultra vires, acted reasonably but can still be challenged if the correct procedure has not been followed.

Question 44

How can procedural impropriety be divided?

Answer 44

Express and implied procedural impropriety.

Question 45

Give an example of express procedural grounds?

Answer 45

Procedural requirements are expressly set out in statute or the instrument that gives them the power. An example is where decision makers have to consult with particular bodies prior to a decision being taken, if they do not or it is not done adequately it may give grounds that there has been a breach of that procedural requirement.

Question 46

What came from the case of R v Soneji?

Answer 46

It got rid of the mandatory and discretionary requirements which were previously used to determine whether a rule was discretionary or not. The emphasis ought to be on the consequence of non compliance rather than looking at mandatory and directory compliance. So what is the effect of non compliance, were the consequences significant or not etc.

Question 47

How can you get implied procedural requirements?

Answer 47

If the power conferring document has no express requirements in it, the courts may imply that some form of procedure should be followed, it’s all about fairness.

Question 48

Give an example of implied procedural requirements?

Answer 48

CCSU. Challenge was that employees should have been consulted about the changes to terms of employment as they had been in the past but it was not an express requirement. It was fair to expect a consultation in this situation too.

Question 49

What are the rules of natural justice?

Answer 49

They’re about fairness, the courts will say that there are certain requirements that have to be maintained and followed in order for natural justice to be preserved.

Question 50

The rules on natural justice are founded on two branches, what are they?

Answer 50

Nemo judex in causa sua (rule against bias, no man should be a judge in his own cause) and audi alteram partem (right to a fair hearing).

Question 51

What is the key case with regards to the rules of natural justice?

Answer 51

Ridge v Baldwin - chief constable dismissed by committee for perverting the course of justice however he had been found not guilty and they decided to sack him. The rule of natural justice had not been complied with (he had not been given a fair hearing). Need to ask does justice demand a fair hearing.

Question 52

Who is subject to the rules of natural justice?

Answer 52

All public bodies and decision makers (Ridge v Baldwin).

Question 53

What are the different aspects to bias, no man should be a judge in his own cause?

Answer 53

• actual bias - proved decision maker has taken a decision because of actual bias (rare as unlikely to admit)
• financial bias
• apparent bias - actual bias cannot be proved but you can imply into the circumstances that someone has been bias (if decision maker has an interest in the decision there will be bias)

Question 54

What is the most popular bias and what is the test for it?

Answer 54

Apparent bias. Test established in R v Gough (court case jury member was brothers neighbour). We would ask if the reasonably well informed impartial person hold that there was a real danger of bias by this particular decision maker. There has to be a real danger for the decision to be challenged. Held not in this case.

Question 55

What are the different limbs to the right of a fair hearing?

Answer 55

• the right to know the case against you (enough to know what the charges are)
• the right to reasonable time to prepare your case
• the right to be heard
• the right to representation
• the right to reasons for a decision

The list is not exhaustive

Question 56

Give a case example illustrating reasonable time?

Answer 56

Polemis - ship captain pulled into harbour and was leaking oil. He was served a summons at 10:10 to appear magistrates at 14:00 that day. He requested an adjournment to gather evidence and prepare but was refused. This breached the rules of natural justice, he didn’t have enough time to prepare the case.

Question 57

What is the right to be heard?

Answer 57

It doesn’t necessarily meant the right to an oral hearing, it depends on the subject matter. The less serious the outcome, the less likely you are to be granted an oral hearing, if it can be dealt with on the papers then that will do.

Question 58

What was said with regards to oral hearings in the case of Shaffi?

Answer 58

Parole board discussing whether the risk he posed had been reduced and in order to do so you normally have to undertake courses but none were available to him and he was refused an oral hearing. Held he should have the right to be heard orally due to the circumstances of the case. It had serious consequences, he should be given the chance to express his views.

Question 59

What remedies are available under JR?

Answer 59

• quashing order
• mandatory order
• prohibitory order
• injunction
• declaration
• damages

Question 60

How would you explain the meaning of proportionality?

Answer 60

It ensures that any interference with a persons rights is no greater than is necessary to solve the problem (you must not use a sledge hammer to crack a nut).