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Judicial Review: Standing & Procedure, Grounds are irrationality,…
Judicial Review: Standing & Procedure
Locus Standi - Legal reasoning
The application for judicial review
The basis for judicial review:
The Senior Courts Act 1981
The basis for review lies in S31 Senior Courts Act 1981 and the Civil Procedure Rules 1998
An application to the High Court for 1 or more of the following forms of relief, namely:
a) an order of mandamus, prohibition or certiorari
b) a declaration / injunction under subsection (2) or
c) an injunction under S30 restraining a person not entitled to do so from acting in office to which the section applies, will be made in accordance with rules of court by a procedure known as application of judicial review
Prerequisites for judicial review
Standing
The "Sufficient Interest Test"
Provided by R v Inland Revenue Commissioners ex parte National Federation of Self-Employed & Small Business (1982): HoL's approach was as follows. Question of whether there is standing will be examined in
2 stages:
At 1st instance, standing shall be considered when leave to apply is sought. Per Lord Scarman, to ensure that "it prevents abuse by busybodies, cranks and other mischief makers". If leave is granted, court may
At 2nd stage, where merits of the case is known - revise its original decision and decide that after all the applicants don't have sufficient interest
The Steps:
Each case must be considered on its own specific legal and factual issues. But there are some guidelines offered by Peter Cane in
An Introduction to Administrative Law (1996)
include:
Examine case law - does the applicant fall within the category of persons previously held to have sufficient interest?
Look at statute in question - this might state which people are entitled to challenge decisions
Consider nature of complaint - it might be very obvious that the applicant have / don't have sufficient interest
How serious is the "wrong"? - the more serious it is, the more likely the applicant will be entitled to have sufficient interest
Courts dislike the possibility of there being a lacuna in the legal system - is there a chance that an aggrieved person will not have an alternative means of challenging the decision in question, it increases the likelihood that the applicant will satisfy the locus standi's requirements.
R v Inland Revenue Commissioners ex parte National Federation of Self-Employed & Small Businesses (1982):
Facts: NFSSB was attempting to challenge the Revenue's grant of tax amnesty to Fleet Street casual workers on the grounds that it was illegal.
Held: HoL held that NFSSB didn't have locus standi to challenge the Revenue's decision with regard to another group of taxpayers.
Group Action: R v Secretary of State for the Environment ex parte Rose Theatre Trust Company Ltd (1990):
Facts: question was whether a company that has been incorporated for the purpose of campaigning to save the historic Globe Theatre site in London had sufficient interest / locus standi. Included in the guidelines were that:
The question of whether sufficient interest exists is not purely a matter within the discretion of the court
That sufficient interest did not necessarily entail a direct financial / legal interest
That the assertion of an interest by a person or a group does not mean that sufficient interest exists; and that
Even when there's an active campaign, that was not conclusive that sufficient interest existed. Courts ruled that company did not have sufficient interest
Public Interest Action: R v Secretary of State for the Environment ex parte Greenpeace Ltd (No.2) (1994):
Facts: Greenpeace applied for judicial review to challenge decision of the Inspectorate of Pollution to allow the siting of a nuclear reprocessing plant (THORP) at Sellafield.
Held: The Inspectorate didn't abuse its power in varying British Nuclear Fuel PLC's license.
Even though Greenpeace lost they had sufficient interest to challenge the decision. An organisation with over 400,000 supporters in the UK to bring action on behalf of all concerned with the project.
Courts declined to follow Rose Theatre but should not assume it will happen again.
Compliance with time limits
Per the Civil Procedure Rules 1998:
Action must be brought within 3 months of the decision against which review is sought. But shorter time periods can be specified in statute, and these must be complied with.
S.31(3) SCA 1981:
No application judicial review will be made unless the High Court is obtained in accordance with rules of court; and the courts will not grant leave to make sure an application unless it considers that the applicant has sufficient interest in the matter to which the application relates.
Public Authority
Amenability is regarding the question of who may be judicially reviewed
It must only be a Public Authority
Judicial review only allowed against public bodies. Such an action cannot be against a private entity
Or a Private Body that performs a public function
R v Disciplinary Committee of the Jockey Club ex parte Aga Khan (1993):
Facts: C in this case sought judicial review of the Jockey Club's decision to disqualify his winning horse from a race failing a dope test.
Held: Court held that it had no jurisdiction. Because the power of the club was derived from the agreement between parties and was a matter for private rather than public law.
Marcic v Thames Water (2003):
Under S.6 HRA1998 - Marcic v Thames Water (2003)
Public authorities are defined as including courts and tribunals and 'any person certain of whose functions are of a public nature'.
In this case a privatised sewage company was held to be a public body under S.6
Exclusivity Principle
Must be a public law in nature and not a private one. One cannot substitute a judicial review claim if a private action fails. AKA "Exclusivity Principle"
:
Per O Reilly v Mckman
- A mixed claim of public law and private law cannot be brought here
In the past C's with a mixed claim of public and private law can bring a claim directly under specific remedy (injunctions, mandatory, prohibitory etc)
But now C must go through a full process of judicial review - this complicates matters
Now under the introduction of Order 53, such claims with that nature must go through the full Judicial Review process.
O'Reilly v Mackman:
Facts: Issue for the court was whether there was an abuse of the process of court to use alternative basis to bring action. Case concerned prisoners whose remission was forfeited by the Board of Visitors.
HoL held that prisoners did not have any private law rights. The only action was through public law and any action should've been brought under judicial review.
Per Lord Diplock: "what should emerge is that his complaint is not of an infringement of any of his rights that are entitled to protection in public law but may be an infringement of his rights in private law and this is not a proper subject for judicial review, the court has power under rule 9(5) instead of refusing the application, to order the proceedings to continue as it they had begun by writ.
Decision in O'Reilly has been critised by Professor HWR Wade:
Keeping public and private law rigidly distinct
Was introduced by Lord Diplock in O' Reilly, not withstanding the Law Commission's intention that procedural reforms introduced in 1977 were not intended to create a rigid distinction between public and private law proceedings.
Exceptions to the Exclusivity principle
The harness of the exclusivity principle could operate led by Lord Diplock in O' Reilly to state that the rule would exist where the case involved both public and private law elements - specifically where public law elements was collateral (auxiliary / secondary) to the private law element
Wandsworth London Borough Council v Winder (1985):
HoL allowed a matter of public law (the lawfulness of the council's decision) to be used as a defence to private law proceedings (possession proceedings)
The more liberal approach of the procedure seen in Clark v University of Lincolnshire and Humberside (2000):
Facts: student sued her University for breach of contract after having failed her examination following unproven allegations of plagiarism
As she was outside the 3 month time limit for judicial review, CA disagreed stating that a claim would not be struck out on the basis that the applicant under contract rather than judicial review.
Flexibility
Overtime the courts have been excessively flexible in the application of procedural exclusivity rules to avoid the need for an excessively formal division where C has a legitimate reason for bringing a claim through private law even though it may have a public law element
Roy v Kensington & Chelsea and Westminster FPC (1992):
Facts: Dispute between C and D, where the fees-committee of a public health authority had failed to pay C for money he was entitled to. C sought to use private claim (breach of contract) and D sought to have it struck out on the basis that C's claim will involve showing that a decision taken by a PA was wrong hence C's claim ought to be made from judicial review
Held: HoL held that a litigant possessed of a private law can seek to enforce that right by ordinary action notwithstanding that the proceedings will involve a challenge to a public law act/decision. C relationship between the committee whether contractual/statutory conferred him the rights of ordinary action that the proceedings will involve a challenge to public law act/decision. C relationship with the allowed private law rights to remuneration according to his statutory terms of service and that bringing to enforce his rights to get remuneration did not mean its an abuse of the process.
Justiciability
Made it clear that the source of power was not determinative or whether the courts would review, but rather the matter to be decided was whether the subject matter of the application was justiciable or not
Defined non-justiciable (non reviewable):
Making or treaties (now codified)
Defence of the realm
The prerogative of mercy (R v Comptroller of Patents 1899)
The grant of honors
Appointment of Ministers
Disposition of armed forces (China Navigation Co. Ltd v AG 1932)
Dissolution of Parliament
Timeliness
A review must be brought within 3 months of date of action. This prevents delay in matters of urgency. Its either the above of to comply with the deadline under relevant statutes (specific statutes)
Exhaustion of Alternative Remedies
C must have exhausted all alternative remedies, appeals, damages etc. Judicial review has to be the final measure.
Ouster Clause
Clause inserted in delegated legislations to prevent judicial review AKA ouster clause. This is done to allow DL to have the same immunity as other parliamentary clauses. "immunity against review".
Anismunic Ltd v Foreign Compensation Commission (1969):
Facts: The Egyptian authority had nationalised property belonging to a British company. Company was later sold to the Egyptian government. The UK signed a treaty with Egypt of returning all properties taken by Egypt except Anisminic. The FCC provided compensation to those that were excluded from the treaty. FCC said that to get compensation, successors must be British citizens as Anisminic was sold to the Egyptian authorities no compensation was given. The FCC had a ouster clause that decisions of the FCC cannot be questioned by any court of law as a result that judicial review cannot be done.
Held: HoL found that ouster clause was invalid and held that decision of the FCC to be void. Judicial review was allowed.
Grounds are irrationality, illegality, procedural impropriety, natural justice, proportionality