Judicial Review

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To ensure...

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public bodies and officials act within their legal powers.

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to stop them....

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acting outside the same (ultra vires).

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Could also say the function of the courts is to...

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enforce common law standards of good administration and prevent misuse and abuse of power.

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Availability of JR

What are the requirements

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1. Amenability

2. Procedural exclusivity

3. Standing

4. Time limits

5. Possible presence of an ouster clause.

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Amenability

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Only public law decisions are amenable.

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This normally means a public...

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body carrying out a public function.

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What is important to this decision regarding the body?

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The source of its power. Was it created by/exercising power pursuant to statute. Then it is amenable.

e.g.

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Prerogative powers

case:

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GCHQ

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BUT

can include bodies whose power comes from other sources -

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Self-regulatory bodies - R v Panel of Take-overs and Mergers, ex parte Datafin

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R v Panel of Take-Overs and Mergers, ex parte Datafin

Private body exercising public functions = amenable.

City of London's self regulator of what it says on the tin.

Claimant complained about a decision.

Was going to be set up by government anyway. (Unlike the FA)

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Lloyd LJ:

"If the body is exercising a public law function, or if the exercise of its functions have public law consequences, then that may be sufficient to bring the body within the reach of judicial review."

here, for instance - panel regulated an important aspect of national life and = exercising a 'governmental type' function

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Civil Procedure Rules Part 54 1(2)(a)(ii)

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can review a decision or action 'in relation to the exercise of a public function'

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Application of Datafin

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Regulatory bodies are generally found to be exercising public functions:

case:

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R v Advertising Standards Authority Ltd, ex parte Insurance Services Plc/R v Bar Council, ex parte Percival

a bit more shaky =

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R v FA, ex parte Footy League

appeared to be a public function but was deemed not to be subject to judicial review. (possibly because there were not judicial remedies available/the FA had done its job??)

ALSO:

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R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan

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Clubs decision wasn't subject to Judicial Review.

"In the present case the remedies in private law available to the Aga Khan seem to me entirely adequate."

Public but NOT governmental

Horse failed urine test. By joining the club, had agreed to their rules. Long and short, can't decide now he doesn't like them.

also:

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R v Chief Rabbi of the United Hebrew Congregation of GB and the Commonwealth, ex parte Watchmann

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Internal affairs of religion = private and not subject to Judicial Review.

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What creates problems?

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Contracting out.

R v Servite Houses and London Borough of Wandsworth, ex parte Goldsmith

R (on the application of A) v Partnership in Care

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ex parte Goldsmith

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Care home closed 3 years after (Wandsworth council???) told some residents it would be for life. Not amenable because the care home had a commercial contract with Wandsworth... (could be brought against Wandsworth? "the local authority's statutory obligation to provide residential accommodation had ended when the local authority had made its arrangements with the housing association. That was because the statutory obligation on the local authority had been to make arrangements to provide residential accommodation, rather than to provide that accommodation itself. There being no other statutory underpinning of the housing association's functions, what the housing association did as a result of the arrangements which it had made with the local authority was a matter for private law."

c.f.

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R(on application of A) v Partnership in Care

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Private psychiatric hospital.

Ward changed to a psychiatric ward.

= claimant not receiving required treatment.

"change the focus of the ward was an act of a public nature. Decisions as to the form which treatment for a particular patient should take are clinical decisions for the psychiatrists (not challenging this) but whether facilities can and should be provided, and adequate staff made available, to enable the treatment which the psychiatrists say should take place is another matter entirely. Subject of specific statutory underpinning directed at the hospital: the statutory duty imposed by regulation 12(1) of the 1984 Regulations on the hospital to provide adequate professional staff and adequate treatment facilities was cast directly on the hospital as the registered person under the Registered Homes Act 1984."

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JR and Human Rights

HRA 1998 s 6(1)

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to be liable to a claim in relation to the obligation in the HRA the body must be a 'public authority'

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Public 'bodies' (JR) vs Public 'authorities' = separate but large overlaps

case:

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Aston Cantlow & Wilmcote..... v Wallbank & Another:

distinguishes PAs. not determinative but can help. Hybrid / core PAs.

Here hybrid and the matter under consideration = private in nature.

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Procedural Exclusivity

Judicial review is the exclusive procedure for challenging public law decisions and that private law matters were to be dealt with by ordinary action.

case

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O'Reilly v Mackman

Prison riot, solitary confinement. Claimed no fair hearing following ordinary action. Courts said had to be judicial review (normally) when a public authority infringed rights protected by public law.

also

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Cocks v Thanet DC

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Did local authority have a duty to house the homeless?

House of Lords said aye. 2 issues:

1. public law duty to act lawful and apply the relevant statutory provisions. This done then -

2. Where private rights depend upon prior public law decisions then JR process should be used.

Here would be an abuse of court process to allow Cocks to seek relief other than by JR.

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O'Reilly, even within the decision, criticised because:

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it might strike out legitimate cases. So, exceptions were introduced:

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If neither party objected to the use of private law procedure.

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If a challenge to a decision (JR) arose collaterally, incidentally to another claim.

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Mixed Public/Private Law

case

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Roy v Kensington & Chelsea & Westminster Family Practitioner Committee:

Dr Rog = GP for NHS. Paid under statutory regulations. FPC entitled to reduce pay if thought doctor wasn't doing enough NHS (20%).

He brought a private action against them. FPC said = abuse of process.

judge said:

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Lowry

If exclusively a public right issue then JR but

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"where a litigant was asserting a private law right which incidentally involved the examination of a public law issue" then not debarred from following ordinary action.

clarified in:

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Trustees of Dennis Rye Pension Fund v Sheffield City Co.

Plaintiff trying to recover cash for repairs he'd done.

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following Roy: 'should focus on the consequences of following each course of action'

Woolf - if the applicant is uncertain:

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then JR should be favoured. Can always transfer elsewhere but the time limit if it is JR =

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3 months (or promptly (even faster!))

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Influence of Civil Procedure Rules

Student:

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Clark v University of Lincolnshire and Humberside:

alleged plagiarism. (zero on grades) Claimed for breach of contract. Said hadn't been allowed to explain. They said abuse of process. Should've gone for JR but was past time limit.

Court of Appeal said though it was a matter concerned with public law it was possible to pursue the matter in contract as well.

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Raising Public Law as a Defence

case:

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Wandsworth London BC v Winder:

Winder (council tenant) thought he was paying too much rent. Decided to pay as much as HE thought was reasonable. Council sued. Defence = they were acting unreasonably (Wendesbury). Council tried to strike out as an abuse of process (because he hadn't challenged under JR, just refused to pay). House of Lords rejected their argument. He hadn't chosen the process, was only defending himself against their process.

also

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Boddington v British Transport Police

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Defendant smoking on train. Challenged the by-law prohibiting this. Court said challenging by-law was allowed in criminal proceedings unless explicitly stated by Parliament.

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Standing

Who can appeal?

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Senior Courts Act 1981

Applicants with 'sufficient interest'

case:

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IRC v National Federation of Self-Employed and Small Business (Fleet Street Casuals):

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1. 'permission' stage - courts check prima facie case and applicants relation to it.

2. At main hearing standing may be considered if respondent feels there is a lack of sufficient interest. Then it will be considered in more detail.

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Details of Fleet Street Casuals

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Federation had no standing to challenge IRC's decision to overlook some taxes owned by the Casuals.

Law Lords said had no standing this time but would have in cases of exceptionally grave and widespread illegality.

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Pressure groups = problem because should prevent more or less anyone bringing important things to the attention of the court.

case:

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R v Secretary of State for Environment, ex parte Rose Theatre Trust Co.:

Interpreted standing restrictively. Wanted archaeological site listed. Said they didn't have standing. Judge said there's standing if statute gives greater rights/expectations than others. (not true here). It being a group doesn't = more rights.

this has been criticised in:

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R v Secretary of State for Environment, ex parte Greenpeace:

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Greenpeace had standing. The national and international nature of it, its general environmental concern, thousands of local supporters and the fact that without Greenpeace the people wouldn't have had an effective way to go to court.

also

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R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd:

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grant to Malaysia for a dam. Given standing. Were vindicating the rule of law. There was an absence of another responsible challenger. The nature of the breach of duty. The prominent role of applicants in giving advice, guidance and assistance on overseas aid.

also

R(Corner House Research) v Director of Serious Fraud Office - Gave standing to the two campaigning organisations.

i.e. Rose Theatre is being stepped away from.

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Individuals

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Doesn't have to be stuff that affects their interests, can also be a concerned citizen about a public issue.

case

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R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Rees-Mogg:

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former editor of the times brought it. Used to write a lot about the EU. Court said did have standing to challenge the Treaty of the EU (Maastricht Treaty) because of 'sincere concern for constitutional issues'.

also

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R v Somerset County Council, ex parte Dixon

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planning permission for a quarry. Against Rose Theatre they said he didn't have to prove had a greater right/expectation to have standing.

said:

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JR is not about...

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rights, but about wrongs in misuse of public power. Dixon wasn't a busy body or trouble maker. Was allowed to be concerned.

What's important here?:

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Rule of Law, it lessens the need for

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sufficient interest

case:

Walton v Scottish Ministers:

may be times anyone has sufficient interest.

But:

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R v SoS for Home Department, ex parte Venables and Thompson:

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Tariff sentencing. Murderers themselves have standing.

c.f.

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R v SoS for Home Department, ex parte Bulger:

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father had no standing. In criminal cases only the crown and the defendants have standing.

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Standing + HR

HRA test for 'victim' can be used for standing.

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check flowchart!

case:

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Director General of Fair Trading v Propriety Association of GB:

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association for pharmacy manufacturers weren't victims but they DID have standing under JR....

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Time Limits

HRA exception

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Golder v UK:

only restrict time if there is a legitimate aim and it is proportionate.

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Ousters

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More or less not allowed in JR.

Anisminic v Foreign Compensation Commission

decision can't be 'called into question in court'. Not allowed.

also

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Time limit ousters can work:

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Smith v East Elloe RDC:

They are taken at face value.

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There is no JR where

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there is an alternative route.

IRC, ex parte Preston:

Use the tax appeal process.

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Procedure for bringing JR:

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Civil Procedure Rules part 54:

1. Apply to Administrative Courts... standing? sufficient interest?

2. main court - grounds for challenge presented.

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Remedies

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prerogative orders:

a. quashing order (undo it)

b. prohibitory order (don't do it)

c. mandatory order (do it)

d. declaration (statements of legal position)

e. injunction (don't/do a specific act)