Legitimate Expectation Notes

Definition: Where a public authority has issued a promise or adopted a practice representing how it proposes to act, the law requires the promise/practice to be honored unless there is a good reason not to do so.
(Nadarajah v Secretary of State for the Home Department [2005])
Applicants may enjoy a legal position beyond enforceable rights (Attorney-General of Hong Kong v Ng [1983]).

Context: The appeal involves the decision of the Secretary of State (SoS) not to 'call in' planning applications for the Paddington Cube redevelopment.
LegEx to give reasons
Legal Case: R (Save Britain’s Heritage) v Secretary of State for the Communities and Local Government [2019] 1 WLR 929, [1] highlights the argument that the SoS was legally obligated to provide reasons for the decision, which was not fulfilled.

Argument 1: The SoS should have justified the use of simplified procedures.
Argument 2: There exists a legitimate expectation for the SoS to provide reasons for not calling in the application.

From first principles, the need to give reasons for a decision not to call in applications under section 77 was debated. Common sense guided the conclusion that no general duty exists for the SoS to give reasons for such procedural decisions (see R (Save Britain’s Heritage) [2019] 1 WLR 929, [19], [30]).

Quote from Lord Falconer (2001): Emphasized a shift towards transparency by stating reasons would also be given for decisions not to call in applications in the interest of good administration (see R (Save Britain’s Heritage) [2019] 1 WLR 929, [7]).
Importantly, this established an express promise that reasons would be given. The case illustrated that such a promise could create a legitimate expectation amongst those affected (see R (Save Britain’s Heritage) [2019] 1 WLR 929, [40], [47], [51]).

What conditions must be met for a court to enforce a promise?
When will a court not enforce a promise, even when conditions are satisfied?

Applicant's Responsibility: The applicant must prove the legitimacy of their expectation, establishing that the promise was clear, unambiguous, and without relevant qualifications (Paponette v Attorney General of Trinidad and Tobago [2012]).

A legitimate expectation generally arises from a promise or practice made by a public authority (Ng v Director of Immigration [2002]).
Pre-election statement by election candidates NOT made by public authority - “" An opposition spokesman, even the Leader of the Opposition, does not speak on behalf of a public authority” (R v Secretary of State for Education and Employment, ex parte Begbie)
This doctrine is aimed at preventing unfair acts that contradict good administration (Attorney-General of Hong Kong v Ng [1983]).

Clear and unambiguous representations are essential. In cases where representations may have competing constructions, the public authority's interpretation can prevail unless deemed Wednesbury unreasonable (Ng v Director of Immigration [2002]).
Wednesbury Test: A decision must be “so unreasonable that no reasonable authority could ever have come to it” for the courts to interfere (Associated Provincial Picture Houses, Ltd v Wednesbury Corporation [1948]).
Hong Kong Television Network Ltd v Chief Executive in Council [2016]
- gov refused grant broadcasting licence due to concerns of competition → took gradual approach in granting licence
- Applicant argued the decision breached the LegExp that there is no artificial limit to the number of players in the field
- Held: Decision OK, no inconsistency between policy of no artificial limit on number of licences VS granting licence in a gradual manner over a period of time.

Two ways for LegExp claim to arise:

R (Save Britain’s Heritage) v Secretary of State for the Communities and Local Government [2019]

Express promise
LegExp generated by a practice, even without promise or assurance
- Practice must be “so unambiguous, so widespread, so well-established and so well-recognised” - occasional exception cannot argue LegExp by practice (R (Davies) v Revenue and Customs Comrs[2011])
- ‘The promise or practice…must constitute a specific undertaking, directed at a particular individual or group, by which the relevant policy’s continuance is assured’: R (Bhatt Murphy) v Independent Assessor [2008]
- “… previous practice… developed in the absence of these statutory limitations cannot give rise to any legitimate expectation that such practice would continue in the new statutory setting”: Ho v Hong Kong Housing Authority (2005) (rent review cannot be expected to be followed in the same way as inflationary times during deflationary times)

Recognised in Ng v Director of Immigration (2002).

Requirements:
1. Relevancy: Any legitimate expectation must be taken into account during decision-making. (R (Bibi) v Newham London Borough Council [2002])
2. Prima facie compliance: The promise/practice should be honored unless there are good reasons not to do so (Nadarajah v Secretary of State for the Home Department [2005]).
Courts will assess if a failure to honor a legitimate expectation could constitute an abuse of power, requiring the decision-maker to justify their deviation from the expectation (Ng v Director of Immigration [2002]).
Burden of proof: Paponette v Attorney General of Trinidad and Tobago [2012]
- Applicant first prove the legitimacy of his expectation
- Then onus shifts to the authority to justify the frustration of the LegExp - Authority has to identify any overriding interest on which it relies to justify such frustration

Abuse of Power: If the deviation from a promise is unjustifiable (R v North and East Devon Health Authority, ex parteCoughlan [2001]);
Proportionality: Considering whether the authority's decision was a proportionate response to the interest pursued (Nadarajah v Secretary of State for the Home Department [2005]).

Applicant no need show detrimental reliance.

Promise that is contrary to statute is not LegExp - “the court will not give effect to a legitimate expectation where to do so would involve the decision-maker acting contrary to law”: Ng v Director of Immigration (2002)
R v Secretary of State for Education and Employment, ex parteBegbie[2000]