Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
74 Cards in this Set
- Front
- Back
E Judicial review
|
|
|
When a Public body or official, given power by Parliament through a Statutory instrument exceed their authority or misinterpret the instrument a person can challenge through a
|
Judicial review
|
|
Complaints against Public Bodies or Officials are started in
|
the Administrative Court within the High Court
|
|
what are the other procedures apart from rights of appeal used to correct errors in reviewing the decisions of the courts
|
(i) complaints procedure
|
|
(ii) judicial review
|
|
|
what is the fuction of the complaints procedure:
|
(i) allows redress through a non court process
|
|
(ii)the complaints procedure is a statutory requirement for some public bodies
|
|
|
why does it happen and what is the procedure of judicial review
|
(i) if a public body with delegated powers is thought to be acting ultra vires (outside of its remit)
|
|
(ii) complaint taken to Administrative Court through judicial review within the High Court
|
(iii) the High Court acts in a supervisory function regearding public bodies with delegated powers
|
|
What is a public body
|
any authority or post which performs a public function
|
|
Judicial review
|
|
|
the claim to review the lawfulness of an enactment or decision, action or failure to act in relation to the exercise of a public function is called
|
Claim for judicial review
|
|
Judicial review allows
|
people with sufficient interest in a decision or action by a public body to ask a judge to review the lawfulness of:
|
|
Grounds for Judicial review
|
|
|
(i) an enactment; or
|
(ii) a decision, action or failure to act in relation to the exercise of a public function
|
|
A Judicial review is not an appeal against the merits of a decision but grounds for judicial review is considered under two procedures:
|
(i) procedural ultra vires and;
|
|
(ii) substantive ultra vires
|
|
|
what refers to procedural ultra vires and substantive ultra vires, doctrine of proportionality
|
Grounds for judicial review
|
|
three recognised grounds for judicial review are
|
illegality, irrationality, procedural impropriety
|
|
What refers to a failure of an individual or body to follow established procedure in exercising a power
|
procedural ultra vires
|
|
what refers to an action of something or someone is not authorised by the enabling legislation
|
substantive ultra vires
|
|
what refers to the idea that there should be reasonable relation between a decision and its objectives
|
the doctrine of proportionality
|
|
what is applied under HRA 1998 law regarding decisions of a public body
|
the doctrine of proportionality
|
|
Private and Public law remedies refers to
|
the two categories of remedy open to anyone to challenge the decisions or actions of administrative institutions or public authorities
|
|
The private law remedies:
|
(i) Declaration: this is a definitive statement, by the High Court or county court, of what the law is
|
|
(ii) Injunctions: an injunction seeks to prohibit behaviour or a mandatory injunction seeks to stop a current action or redress a past action
|
(iii) Damages: can only be made in conjunction with the other private remedies
|
|
prerogative orders
|
refers to an order used against an individual minister of state and they are:
|
|
(i)quashing orders (certiorari) involve the examination of the validity of decisions by inferior courts, tribunals and other bodies
|
(ii) A prohibitive order (prohibition) is a premptive and prescriptive and acts to prevent invalid decisions from being taken
|
|
(iii) A mandatory order (mandamus) frequently used with a quashing order to instruct an inferior court or public body to carry out a duty laid before them
|
|
|
a private individual only need issue a writ against a public body and does not require
|
the approval of a court
|
|
the House of Lords decided in O'Reilly v Mackman (1982) that issues relating to public rights could only be enforced by the means of the judicial review procedure and it would be an abuse of process to issue a writ in relation to an alleged breach of public duty or resposibility
|
|
|
F Access to justice
|
|
|
Funding in civil matters
|
|
|
what refers to legal advice for those who are not able to pay for it
|
Legal help
|
|
You may have to pay towards Legal Help if you win or keep money or property in:
|
(i)a family case
|
|
(ii)a medical negligence case
|
(iii)a personal injury case.
|
|
what refers to cases in which the CLS will pay for a solicitor or adviser to speak for you in court
|
Help at Court
|
|
You can receive Help at Court:
|
|
|
(i)where you have agreed you owe money to someone but
|
need to sort out when and how the debt is to be paid
|
|
(ii)where you disagree about the amount of rent or mortgage arrears you owe and;
|
your lender or landlord has taken legal action to repossess the property.
|
|
(iii)where it can be shown that having someone to speak on your behalf
|
is appropriate and of real benefit to you
|
|
(iv)if it's reasonable for
|
Help at Court to be provided
|
|
(v) if it's considered to be cost-effective to attend a hearing, rather than
|
simply writing a letter on your behalf.
|
|
Legal help and Help at Court come under the same criteria but
|
can be applied for seperately
|
|
What helps with all the costs of taking certain types of non-criminal (civil) cases to court. It includes representation by a solicitor or barrister.
|
Legal representation
|
|
The types of case that you might be able to get help with under Legal Representation include:
|
(i)a housing case, including eviction, repairs and rent arrears
|
|
(ii)a debt case
|
(iii)consumer problems, for example, if you were claiming compensation for faulty goods or services
|
|
(iv)an appeal to the Employment Appeal Tribunal (but not for representation at an Employment Tribunal)
|
(v) a judicial review case in the High Court
|
|
(vi)mental health review proceedings
|
(vii)an immigration or asylum case before the First-tier Tribunal and in some High Court cases
|
|
(viii)the costs of mediation in non-family cases. For more information about Family Mediation, see under headin
|
|
|
You will get Legal Representation if you or your partner receive:
|
(i)income support
|
|
(ii)income-related Employment and Support Allowance
|
(iii)income-based Jobseeker's Allowance
|
|
(iv)guarantee credit part of Pension Credit.
|
(v)You can also get Legal Representation for an asylum and immigration case if you get government asylum support.
|
|
If you don't get any of these benefits your income and capital will be looked at to see if you can get Legal Representation.
|
(i)If your gross monthly income is over £2,657, you will not get Legal Representation.
|
|
(ii)If your gross monthly income is £2,657 or less, your disposable income will be assessed.
|
(iii)If you have a monthly disposable income of £733 or less, you will qualify for Legal Representation.
|
|
Extra costs you may have to pay towards Legal Representation
|
|
|
If winning a case:
|
(i)If you get money or property as a result of work carried out through Legal Representation, your solicitor will use this money to pay their bill and you will get what's left. This deduction is called the statutory charge.
|
|
In some cases, payment of the statutory charge can be postponed if:
|
(i)the property you won in the case is your home or the home of your dependants
|
|
(ii)the money you won in the case is to be used to buy a home for yourself or your dependants.
|
|
|
If losing a case
|
(i)If you lose your case, you may be ordered to pay the legal costs of the other side if the court considers this would be reasonable.
|
|
Funding in criminal matters
|
|
|
The CDS administers three levels of service in criminal matters:
|
(i) advice and assistant
|
|
(ii) advocacy assistant
|
(iii) representation
|
|
What provides initial advice by a solicitor, but does not cover representation in court
|
advice and assistance
|
|
Advice and assistance is similar to
|
Legal Help
|
|
Advice and assistance only covers any legal work before
|
any charge is made
|
|
If charged in a police station anyone is entitled to representation regardless of income from an
|
on call duty solicitor obtained through the Defence Solicitor Call Centre
|
|
If a person were appearing in court for the first time they would be entitled to representation
|
from a court duty solicitor
|
|
What covers the cost of a solicitor preparing the case and initial representationin certain types of criminal proceedings in both magistrates' court and the Crown Court
|
Advocacy assistance
|
|
What covers the cost of a solicitor preparing the defence and representation in court proceedings of the magistrates' court and the Crown Court, through to the trial
|
Representation
|
|
a barrister is covered by representation as well as giving
|
advice on any possible appeals
|
|
Are Appeals are funded seperately
|
yes
|
|
to obtain representation a solicitor has to
|
complete relevant CDS form
|
|
the CDS make the final decision on funding
|
|