2815253
Judicial Review
- Grounds
- ILLEGALITY
- Excess of Powers:
Ultra Vires
- beyond one's legal power or authority. "jurisdictional
errors render the decision ultra vires
- beyond one's legal power or authority. "jurisdictional
errors render the decision ultra vires
- Irrelevant considerations
- Roberts v Hopwood
- £4 minimum wage for
women. Council raised the
minimum wage due to gender.
However, this was irrelevant
to the considerations.
- £4 minimum wage for
women. Council raised the
minimum wage due to gender.
However, this was irrelevant
to the considerations.
- R v Port Talbot Council
- The applicant for a council house was bumped up a
waiting list to give him a home earlier. This is unlawful
as the only way for this to measured is an applicants
wage and need for a house.
- The applicant for a council house was bumped up a
waiting list to give him a home earlier. This is unlawful
as the only way for this to measured is an applicants
wage and need for a house.
- Roberts v Hopwood
- Excess of Powers:
Ultra Vires
- IRRATIONALITY
- Wednesbury Unreasonableness:
- if it is so unreasonable that no reasonable
person acting reasonably could have made
it (Associated Provincial Picture Houses Ltd
v Wednesbury Corporation (1948)
- if it is so unreasonable that no reasonable
person acting reasonably could have made
it (Associated Provincial Picture Houses Ltd
v Wednesbury Corporation (1948)
- GCHQ Case (1985)
- Lord Diplock in the GCHQ Case said
that this 'applies to a decision which
is so outrageous in its defiance of
logic or of accepted moral standards
that no sensible person who had
applied his mind to the question to
be decided could have arrived at it.'
- Lord Diplock in the GCHQ Case said
that this 'applies to a decision which
is so outrageous in its defiance of
logic or of accepted moral standards
that no sensible person who had
applied his mind to the question to
be decided could have arrived at it.'
- Wednesbury Unreasonableness:
- PROCEDURAL IMPROPRIETY
- Audi Alteram Partem: Right to a fair hearing
- Audi Rule
- Audi Rule
- Procedural Fairness
- RE HK
- Process to deport him was rigorous, no
time to deem legal council.
- Common Wealth Immigrants Act 2962
- Common Wealth Immigrants Act 2962
- Process to deport him was rigorous, no
time to deem legal council.
- RE HK
- Legitimate expectations
- 1
- Whether a legitimate expectation has arisen
- Whether a legitimate expectation has arisen
- 2
- Whether it would be lawful for an authority to frustrate such an expectation
- Whether it would be lawful for an authority to frustrate such an expectation
- 3
- If found that the authority has done so what remedies are available?
- If found that the authority has done so what remedies are available?
- Natural Justice and fairness and seeks to
prevent public bodies from abusing their
powers
- Procedural
Legitimate
Expectations
- Presumption that a public authority will follow a
certain procedure in advance of a decision.
- Presumption that a public authority will follow a
certain procedure in advance of a decision.
- Substantive
Legitimate
Expectations
- When an authority makes a lawful
representation that an individual
will receive or continue to receive
some kind of substantive benefit
- When an authority makes a lawful
representation that an individual
will receive or continue to receive
some kind of substantive benefit
- 1
- Rule against Bias
- Duty to give reasons
- Nemo Judex
- Nemo Judex In Parte Sua Definition: Latin:
no person can judge a case in which he or
she is party or in which he/she has an
interest.
- Nemo Judex In Parte Sua Definition: Latin:
no person can judge a case in which he or
she is party or in which he/she has an
interest.
- Audi Alteram Partem: Right to a fair hearing
- ILLEGALITY
- Remedies
- Quashing Order
- A quashing order nullifies a decision which has been made by a public
body. The effect is to make the decision completely invalid. Such an order
is usually made where an authority has acted outside the scope of its
powers (‘ultra vires’). The most common order made in successful judicial
review proceedings is a quashing order. If the court makes a quashing
order it can send the case back to the original decision maker directing it
to remake the decision in light of the court’s findings. Or, very rarely, if
there is no purpose in sending the case back, it may take the decision
itself.
- A quashing order nullifies a decision which has been made by a public
body. The effect is to make the decision completely invalid. Such an order
is usually made where an authority has acted outside the scope of its
powers (‘ultra vires’). The most common order made in successful judicial
review proceedings is a quashing order. If the court makes a quashing
order it can send the case back to the original decision maker directing it
to remake the decision in light of the court’s findings. Or, very rarely, if
there is no purpose in sending the case back, it may take the decision
itself.
- Prohibiting Order
- A prohibiting order is similar to a quashing
order in that it prevents a tribunal or
authority from acting beyond the scope of its
powers. The key difference is that a
prohibiting order acts prospectively by telling
an authority not to do something in
contemplation. Examples of where
prohibiting orders may be appropriate
include stopping the implementation of a
decision in breach of natural justice, or to
prevent a local authority licensing indecent
films, or to prevent the deportation of
someone whose immigration status has been
wrongly decided.
- A prohibiting order is similar to a quashing
order in that it prevents a tribunal or
authority from acting beyond the scope of its
powers. The key difference is that a
prohibiting order acts prospectively by telling
an authority not to do something in
contemplation. Examples of where
prohibiting orders may be appropriate
include stopping the implementation of a
decision in breach of natural justice, or to
prevent a local authority licensing indecent
films, or to prevent the deportation of
someone whose immigration status has been
wrongly decided.
- Mandatory Order
- A mandatory order compels public
authorities to fulfill their duties.
Whereas quashing and prohibition
orders deal with wrongful acts, a
mandatory order addresses wrongful
failure to act. A mandatory order is
similar to a mandatory injunction
(below) as they are orders from the
court requiring an act to be performed.
Failure to comply is punishable as a
contempt of court. Examples of where a
mandatory order might be appropriate
include: compelling an authority to
assess a disabled person’s needs, to
approve building plans, or to improve
conditions of imprisonment. A
mandatory order may be made in
conjunction with a quashing order, for
example, where a local authority’s
decision is quashed because the decision
was made outside its powers, the court
may simultaneously order the local
authority to remake the decision within
the scope of its powers.
- A mandatory order compels public
authorities to fulfill their duties.
Whereas quashing and prohibition
orders deal with wrongful acts, a
mandatory order addresses wrongful
failure to act. A mandatory order is
similar to a mandatory injunction
(below) as they are orders from the
court requiring an act to be performed.
Failure to comply is punishable as a
contempt of court. Examples of where a
mandatory order might be appropriate
include: compelling an authority to
assess a disabled person’s needs, to
approve building plans, or to improve
conditions of imprisonment. A
mandatory order may be made in
conjunction with a quashing order, for
example, where a local authority’s
decision is quashed because the decision
was made outside its powers, the court
may simultaneously order the local
authority to remake the decision within
the scope of its powers.
- Damages
- Damages are available as a remedy in
judicial review in limited circumstances.
Compensation is not available merely
because a public authority has acted
unlawfully. For damages to be available
there must be either: (a) A recognised
‘private’ law cause of action such as
negligence or breach of statutory duty or;
(b) A claim under European law or the
Human Rights Act 1998.
- Loss of livelihood
- Economic Loss
- Loss of livelihood
- Damages are available as a remedy in
judicial review in limited circumstances.
Compensation is not available merely
because a public authority has acted
unlawfully. For damages to be available
there must be either: (a) A recognised
‘private’ law cause of action such as
negligence or breach of statutory duty or;
(b) A claim under European law or the
Human Rights Act 1998.
- Injunction
- An injunction is an order
made by the court to stop a
public body from acting in
an unlawful way. Less
commonly, an injunction
can be mandatory, that is,
it compels a public body to
do something. Where there
is an imminent risk of
damage or loss, and other
remedies would not be
sufficient, the court may
grant an interim injunction
to protect the position of
the parties before going to
a full hearing. If an interim
injunction is granted
pending final hearing, it is
possible that the side
which benefits from the
injunction will be asked to
give an undertaking that if
the other side is successful
at the final hearing, the
party which had the benefit
of the interim protection
can compensate the other
party for its losses. This
does not happen where the
claimant is legally aided.
- An injunction is an order
made by the court to stop a
public body from acting in
an unlawful way. Less
commonly, an injunction
can be mandatory, that is,
it compels a public body to
do something. Where there
is an imminent risk of
damage or loss, and other
remedies would not be
sufficient, the court may
grant an interim injunction
to protect the position of
the parties before going to
a full hearing. If an interim
injunction is granted
pending final hearing, it is
possible that the side
which benefits from the
injunction will be asked to
give an undertaking that if
the other side is successful
at the final hearing, the
party which had the benefit
of the interim protection
can compensate the other
party for its losses. This
does not happen where the
claimant is legally aided.
- Decleration
- A declaration is a judgment by the Administrative Court which clarifies
the respective rights and obligations of the parties to the proceedings,
without actually making any order. Unlike the remedies of quashing,
prohibiting and mandatory order the court is not telling the parties to do
anything in a declaratory judgment. For example, if the court declared
that a proposed rule by a local authority was unlawful, a declaration
would resolve the legal position of the parties in the proceedings.
Subsequently, if the authority were to proceed ignoring the declaration,
the applicant who obtained the declaration would not have to comply
with the unlawful rule and the quashing, prohibiting and mandatory
orders would be available.
- A declaration is a judgment by the Administrative Court which clarifies
the respective rights and obligations of the parties to the proceedings,
without actually making any order. Unlike the remedies of quashing,
prohibiting and mandatory order the court is not telling the parties to do
anything in a declaratory judgment. For example, if the court declared
that a proposed rule by a local authority was unlawful, a declaration
would resolve the legal position of the parties in the proceedings.
Subsequently, if the authority were to proceed ignoring the declaration,
the applicant who obtained the declaration would not have to comply
with the unlawful rule and the quashing, prohibiting and mandatory
orders would be available.
- Discretion
- The discretionary nature of the remedies outlined above means that
even if a court finds a public body has acted wrongly, it does not have to
grant any remedy. Examples of where discretion will be exercised against
an applicant may include where the applicant’s own conduct has been
unmeritorious or unreasonable, for example where the applicant has
unreasonably delayed in applying for judicial review, where the applicant
has not acted in good faith, where a remedy would impede an authority’s
ability to deliver fair administration, or where the judge considers that an
alternative remedy could have been pursued.
- The discretionary nature of the remedies outlined above means that
even if a court finds a public body has acted wrongly, it does not have to
grant any remedy. Examples of where discretion will be exercised against
an applicant may include where the applicant’s own conduct has been
unmeritorious or unreasonable, for example where the applicant has
unreasonably delayed in applying for judicial review, where the applicant
has not acted in good faith, where a remedy would impede an authority’s
ability to deliver fair administration, or where the judge considers that an
alternative remedy could have been pursued.
- Quashing Order
- Time Limits
- The applicant MUST have exhausted all appeals
- Negotiation?
- Time Limits can be lifted in extreme cases: Death, extreme illness, etc.
- No later than 3 Months after the grounds have arose
- The applicant MUST have exhausted all appeals
- LOCUS STANDI: Standing to have involvement in the case
- Eg. someones friend would not have Locus stand
- Relevant Locus stand would need to be proved
- R v Inland Revenue Commissioners
- You have to be directly affected in order to have sanding
- You have to be directly affected in order to have sanding
- Eg. someones friend would not have Locus stand
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