6. Judicial Review Remedies and Underlying Theories

What are the main judicial review remedies under the Senior Courts Act 1981?

Mandatory, prohibiting, or quashing orders; a declaration or injunction

When are damages available in judicial review?

Only if the claimant would have a cause of action in an ordinary civil claim

Are judicial review remedies granted automatically upon finding unlawfulness?

No, remedies are discretionary; a court may refuse a remedy

When must the High Court refuse relief under Section 31(2A) SCA 1981?

If highly likely the outcome wouldn't be substantially different without the conduct

When can a court disregard Section 31(2A) requirements for refusal of relief?

If it is appropriate for reasons of exceptional public interest

What is a "quashing order" and its general effect?

It nullifies a public authority's unlawful decision

How does the type of unlawfulness affect a quashing order's impact?

If procedural, the same substantive decision may be remade. If substantive, likely not

What are "prospective quashing orders"?

Orders where quashing takes effect on a specified future date, or has limited retrospective effect

What is a "prohibiting order"?

It prevents a public authority from acting unlawfully in the future

Give an example of a prohibiting order's use.

Preventing a council from issuing new taxi licenses without prior consultation (Liverpool Taxi Fleet)

What is a "mandatory order"?

It forces decision-makers to do what they are legally required to do

Why are courts often reluctant to issue mandatory orders?

Due to separation of powers and a preference for declarations

Give a case example of a mandatory order.

Forcing the Secretary of State to make new air quality plans (ClientEarth)

Should public authority resources be considered when granting a mandatory order?

Yes, but an order cannot force diversion from other mandatory allocations

What are some factors in the Imam five-factor test for granting mandatory orders?

Contingency funds, duration of breach, effect on claimant, remedial steps

What is an "injunction" in judicial review?

Similar to prohibiting/mandatory orders; can be interim relief to prevent irreparable harm

What is a "declaration" in judicial review?

An authoritative statement about a legal issue, confirming unlawfulness without coercion

When might a declaration be particularly appropriate?

When other coercive orders are inappropriate but the court finds illegality

What is the "red light theory" of judicial review?

Premised on distrust of administrative discretion, emphasizing the judicial role in preventing abuse

What is the "green light theory" of judicial review?

Focuses on enabling policy-making, preferring political accountability over court intervention

What is the "ultra vires theory" of judicial review?

Courts intervene when a decision-maker acts beyond its legal powers (derived from Parliament)

What challenge did Ridge v Baldwin pose to the "ultra vires theory"?

The court found a breach of fairness despite no statutory provision for a hearing

What is the "common law theory" of judicial review?

Judicial review principles are creations of the courts and principles of good administration

What is the "modified ultra vires theory"?

Reconciles JR with parliamentary sovereignty by implying common law principles into Parliament's general intent

Why do these theories of judicial review matter?

They explain the courts' role in shaping JR and embody normative assumptions