Public 1 Nature and Process of Judicial Review

Preliminary Issues to Judicial Review

Amenability, Procedural Exclusivity, Standing, Time Limits, Ouster Clauses

Amenability

Necessary to determine whether the decision or action being challenged is appropriate for the judicial review process

General Rule for Amenability

Only public law decisions are amenable to judicial review

GCHQ Case

Decisions taken in the exercise of prerogrative powers also amenable to judicial review

R v Panel on Take-overs and Mergers, ex parte Datafin

Decisions by body performing public law functions or governmental type functions can be amenable to judicial review

R v Advertising Standards Authority Ltd, ex parte Insurance Services plc

Court held that a regulatory authority that made a decision akin to a public law function was amenable to judicial review

R v Bar Council ex parte Percival

A decision of the bar council was found to be subject to review

R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan

A sports authority’s work was deemed not to be governmental and therefore their decision was not amenable to judicial review

R v Chief Rabbi of the United Hebrew Congregation of GB and Commonwealth, ex parte Wachmann

Decisions of religion were not governmental and therefore were not amenable to judicial review

R v Servite Housing & London Borough of Wandsworth, ex parte Goldsmith

Housing association was found not to be exercising a public function as its relationship with the council was purely contractual and not dependent on statutory controls

R (on the application of A) v Partnerships in Care

Managers of a private psychiatric hospital were exercising a public function as their services were subject to specific statutory underpinning

O’Reilly v Mackman

Established the general procedural rule that only public law decisions could be subject to judicial review

Roy v Kensington and Chelsea and Westminster Practitioner Committee

A private law claim brought by an NHS doctor was not struck out as it related to public rights in the statutory framework of NHS pay

Clark v University of Lincolnshire and Humberside

Applicant was permitted to pursue her private claim even though it involved public law issues as well as private ones

Wandsworth London BC v Winder

Public law grounds can also potentially be used a defence in private law proceedings

Standing

The particular must have standing or locus standi (sufficient interest in the matter to which the application relates)

IRC v National Federation of Self-Employed and Small Businesses

Sufficient interest test is a mixed question of law and fact, there should be a liberal approach to allowing applications to be heard

Two Stage Approach to an Application

Initial Permission Stage and Full Hearing Stage

Initial Permission Stage

Designed to turn away those with little hope of success or vexatious litigants

Full Hearing Stage

Application is considered in more detail taking into account the strength of case and proximity of applicant’s connection to the issue

R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators’ Association

Associations of individuals who were themselves seen to have sufficient interest will generally be allowed standing to challenge a matter in the communal interest

R v Secretary of State for the Environment, ex parte Rose Theatre Trust Co Ltd

Individuals who would not individually be given standing should not gain it collectively just because they have formed themselves into a campaigning group

Ex parte Greenpeace Ltd

Standing given to Greenpeace due to expertise and reputation, genuine concern and supporters in the relevant area

Ex parte World Development Movement Ltd

Standing given to WDM due to importance of vindicating the rule of law, absence of any other responsible challenger, nature of the breach of duty and prominent role of WDM in the field

R v Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg

Former editor of the Times who had frequently written about EU membership held to have standing due to his sincere concerns for constitutional issues

R v Somerset County Council ex parte Dixon

Judge agreed that it was not necessary for a claimant to establish that he had a greater right of expectation that any of citizen to be granted standing

R (DSD and NBV) v The Parole Board

Court held that mayor did not have standing to seek judicial review for release of rapist John Worboys as genuine concern was not specific enough and there were more directly impacted challenges ie his victims

Time Limits

CPR Part 54.5(1) - the claim must be filed a) promptly and b) in any event no later than three months after the grounds to make the claim first arose

CPR Part 54.5(2) (extension)

Time limit cannot be extended by agreement of the parties but can be extended by the Court

Anisminic v Foreign Compensation Commission

Courts held that where a determination is made in error of law, it is illegal and therefore not a determination and so the ouster clause did not apply

R (Privacy International) v Investigatory Powers Tribunal

Courts will interpret ouster clauses will a presumption against ousting

R v Secretary of State for the Environment, ex parte Ostler

Courts will take time limit ouster clauses at face value and generally enforce them

Civil Procedure (Amendment No 4) Rules 2013

The limitation periods for are 6 weeks for planning decisions and 30 days for procurement decisions

Exhaustion of Alternative Remedies

Judicial review will only be appropriate if there is no suitable alternative remedy or alternative remedies have been exhausted

R (Cowl) v Plymouth City Council (Practice Notice)

Courts will avoid litigation where possible for example putting the case before a statutory complaint panel

Procedure for bringing a judicial review claim

Ex parte application for permission, permission granted if sufficient interest and arguable case, full inter partes hearing

Remedies

Quashing Order, Prohibitory Order, Mandatory Order, Declaration, Injunction, Damages

Quashing Order

Invalidates the impugned decision, usually meaning the public body will need to take the decision again

Prohibitory Order

Prevents a public body from acting or continuing to act unlawfully

Mandatory Order

Compels the public body to perform a public law duty imposed by law

Declaration

Court may declare the legal position or the rights of the parties but this does not question the public body’s exercise of the power

Injunction

Order a part to perform or refrain from performing a specific act

Damages

May be awarded if the court is satisfied that damages could have been awarded in private law action or the public body has breached its duties under HRA 1998

Prerogative Orders

Quashing, Prohibitory and Mandatory Orders

Walton v Scottish Ministers

Remedies are discretionary and should be applied to balance the degree of individual interest in the matter against wider public interest