Judicial Review: Nature and Process

Judicial Review (JR)

Definition

Purpose of JR

To ensure public power is exercised lawfully, rationally, and fairly

JR and Merits

JR does NOT assess whether the decision was good or bad, only whether it was lawful

Preliminary Issues in JR

Five threshold issues that must be satisfied before a JR claim can proceed

Amenability

Whether the decision or body is suitable to be reviewed by judicial review

Procedural Exclusivity

Public law challenges must normally be brought by JR, not ordinary private actions

Standing

The claimant must have a sufficient interest in the matter

Time Limits

Claims must be brought promptly and within strict deadlines

Ouster Clauses

Provisions attempting to exclude or limit judicial review

Amenability

Public Function Test

Public Decision

A decision involving the exercise of public power affecting the public

Public Bodies

Government departments, local authorities, inferior courts, tribunals, statutory bodies

Prerogative Powers

Decisions made under prerogative powers are still amenable to JR

Source vs Function Approach

Courts look at the nature of the power exercised, not just its source

Statutory Power

Automatically amenable to JR

Public Law Consequences

Even non-statutory bodies may be reviewable if their actions affect the public

R v Panel on Takeovers and Mergers (Datafin)

A self-regulatory body was subject to JR because it performed a governmental-type function with public importance

Datafin Principle

Bodies exercising public law functions may be reviewable even without statutory origin

Self-Regulating Bodies

May be amenable to JR if their functions have sufficient public character

Ex parte Insurance Services

JR allowed where Parliament would likely have intervened if the body did not exist

Jockey Club Case

JR refused where powers were contractual and not governmental

Contracting Out

Private companies delivering public services are not amenable to JR if powers are purely contractual

Procedural Exclusivity

Rule

Abuse of Process

Bringing public law challenges outside JR may be an abuse of court process

Exceptions to Procedural Exclusivity

Allowed where parties do not object or public law issue is collateral

Roy v Kensington

A genuine private law claim can proceed even if public law issues arise incidentally

CPR Influence

Courts now focus on justice and avoiding abuse rather than rigid procedure

Clark v University

Private law action allowed despite public law issues; more generous time limits applied

Standing

Definition

Permission Stage

Claimant must show a prima facie case of illegality

Fleet Street Casuals

Standing depends on connection between claimant and issue plus seriousness of illegality

Who Has Standing

Directly affected individuals

Associations

Groups acting on behalf of members with sufficient interest

Pressure Groups

Allowed where legality must be tested and no better challenger exists

World Development Movement

Standing granted due to rule of law importance and expertise

Concerned Citizens

May have standing if no directly affected challenger exists

Time Limits for JR

Must be brought promptly and within 3 months

Promptness Requirement

Delay can defeat a claim even within 3 months

Court Discretion on Time

Courts may refuse claims causing prejudice or harming good administration

Abridged Time Limits

Planning cases: 6 weeks; Public procurement: 30 days

Ouster Clause

Definition

Total Ouster Clause

Presumed invalid as contrary to rule of law

Partial Ouster Clause

Time-limit clauses restricting access but not removing JR entirely

Exhaustion of Alternative Remedies

JR is a last resort; other appeal routes must be used first

Refusal of Permission

Courts may refuse JR if issues could be resolved outside litigation

JR Procedure

Permission Stage

JR Procedure

Substantive Hearing

Quashing Order

Sets aside unlawful decision and requires reconsideration

Prohibiting Order

Prevents unlawful action by public body

Mandatory Order

Compels a public body to perform a legal duty

Declaration

Clarifies legal position and rights of parties

Injunction

Orders a party to act or refrain from acting, often interim

Damages in JR

Only available if private law damages or HRA breach applies

Discretionary Remedies

JR remedies may be refused or shaped to balance public and private interests