Legitimate Expectation in Administrative Law

Griffith College - Administrative Law Lecture Notes

Lecture 6: Legitimate Expectations

Learning Outcomes

By the end of this lecture, students should be able to:

  • Explain the origin of the doctrine of legitimate expectation.

  • Discuss the development of the doctrine in Ireland.

  • Set out the legal test in Irish Law for legitimate expectations.

  • Explain each of the elements of the test.

  • Discuss whether legitimate expectation is a procedural or substantive guarantee.

  • Identify potential defenses to claims of legitimate expectation.

Key Case Law on Legitimate Expectation

Abrahamson v. The Law Society of Ireland [1996]

  • Judge: McCracken J.

    • Statement on the relationship between legitimate expectation and promissory estoppel:

    • "While there is no doubt that the doctrine of legitimate expectation is similar to and probably founded upon the equitable concept of promissory estoppel, I would respectfully suggest that it has in fact been extended well beyond the bounds of that doctrine."

Origins of the Doctrine

Schmidt v. Secretary of State for Home Affairs [1969]

  • Judge: Lord Denning M.R.

    • On the requirement for a hearing based on legitimate expectations:

    • "It all depends on whether he had some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say."

Irish Legal Test

Glencar v. Mayo County Council (No 2) [2002]

  • Judge: Fennelly J.

    • Establishes that to succeed in claiming legitimate expectation, the following must be established:

    1. A public authority must have made a clear statement or promise or adopted a position amounting to a promise or representation.

    2. The representation must be directed at an identifiable person or group.

    3. The representation must create a reasonable expectation that the authority will follow through, making it unjust to retract.

Two-Step Test for Legitimate Expectation

  1. Positive Factors: Establishment of representations that give rise to an expectation per Glencar.

  2. Negative Factors: Consideration of any circumstances precluding enforcement of that expectation due to policy changes or constraints.

Types of Representations

Direct Representations

  • Lett & Co. Ltd v. Wexford Borough Council [2012]: Confirms identifiable class targeted by relevant public authority.

Implied Representations

  • Philips v. Medical Council [1991]: plaintiff had a reasonable expectation that his application would be determined in accordance with rules dated September 1980.

    •Court held that it would be “grossly unfair to allow the Council to overturn the rules when an application was pending under these and adopt new ones which effectively make it impossible for the plaintiff to be registered”.

Established Practice

  • Ettablish practise shows implied representation

  • Council of Civil Service Unions v. Minister of State for Civil Services [1985]: Confirms a history of consultation as a basis for legitimate expectation.

  • Wiley v. Revenue Commissioners [1989]: Addresses inadequacies in establishing ongoing practices from limited occurrences - such an assumption is not justified. The doing of something on two occasions only could not constitute a practice

Authority to Make a Representation

  • South Bucks District Council v. Flanagan [2002]: Discusses fairness and authority in representations, emphasizing that lack of authority negates legitimacy.

  • Unless the person making the representation has authority, it wont be considered legitimate expectations.

Detrimental Reliance

  • Webb v. Ireland [1988]: Links to promissory estoppel requiring proof of detrimental reliance.

Enforcement of Expectation

Glencar v. Mayo County Council (No 2) [2002]

  • Asserted the importance of public interest against power exercise.

    Essentially, this case confirms that the executive cannot be "contracted out" of its duty to act in the public interest; the power to change policy remains a priority even if it results in the retraction of a prior promise.

Public Policy Considerations

Glenkerrin Homes Ltd v. DLR CC [2011]

  • A major finding of this case is that the executive has a constitutional right to modify its policies if it is statutory compliant. This case reinforces the idea that the public interest—determined by the executive—often takes precedence over individual expectations.

Statutory Limitations

Cork Opera House PLC v. Revenue Commissioners [2007]

  • Clarification that legitimate expectation cannot replace statutory authority.

Defenses to Claims of Legitimate Expectation

  • Potential defenses include:

    • Change in circumstances. -Curran v. Minister for Education and Science [2009]: Highlights public interest considerations affecting procedural benefits.

    • Errors in original representations.- Cromane Seafoods Ltd. & Anor v. The Minister for Agriculture, Fisheries and Food [2017]: Discusses misrepresentations causing illegitimate expectations.

    • Ultra vires actions.- Bates v. Minister for Agriculture, Fisheries and Food [2012]: Reiterates ultra vires consequences. Legitimate expectations will fail if ultra vires is found.