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Judicial Remedies - Coggle Diagram
Judicial Remedies
Prerogative Remedies
Quashing order
- Overlaps with that of prohibition
- This order is where you "quash" or set aside as a nullity.
- The original decision: accordingly, its both negative and retrospective in nature
R v Criminal Injuries Compensation Board ex parte Lain (1967); O' Reilly v Mackman (1983):
- Per Lord Atkin: "...whenever any body of persona having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs".
Mandatory order
- Compels the decision-maker to perform a legal duty imposed on him.
- A failure to comply with the order amounts to contempt of court
- Usually used against the Crown and can be used to enforce action by a minister or official
R v Home Secretary ex parte Herbage (No.1) (1987):
- Facts: Herbage, a mentally-ill prisoner was likely subject to extradition proceedings, was placed in a prison hospital next to mentally-ill inmates.
- Held: Judicial review could be made to obtain a mandatory order to secure proper treatment for Herbage.
Board of Education v Rice (1911):
- Facts: Board was required by S.7(3) of the Education Act 1902 to determine certain questions in order to resolve disputes between schools and local education authorities. Evidence established that the board had not addressed the correct questions and had to therefore failed to discharge its duty.
- Held: Decision was quashed and mandatory order was issued, requiring the Board to look again at the matter, addressing itself to the correct questions.
Prohibiting order
- Forbids an ultra vires act or decision
Estate and Trust Agencies (1927) v Singapore Improvement Trust (1937):
- Ordinance in Singapore provided machinery for the demolition of houses without compensation
- "whenever it appears to the Board that... a dwelling place... is in such a condition as to be unfit for human habitation".
- By using an English standard that was not a standard of unfitness for habitation the Board applied a wrong and inadmissible test and would have acted beyond their powers.
Ordinary Remedies
Declaration
- A formal statement by the court setting out the legal rights and duties of the parties
Dyson v AG (1911):
- Act required by taxpayer to make a return under penalty. It was held that the tax commissioners demand was wholly invalid where an unauthorised question was in the form of return that they required.
Gateshead Union v Durham (1918):
- Child's guardian may obtain a declaration that the county council is wrongly refusing to accept children in schools.
Injunctions
- Injunctions require or forbids the doing of an act.
R v Secretary of State for Transport ex parte Factortame Ltd (No.2) (1991):
HoL granted an interim injunction forbidding a minister from obeying an Act of Parliament (Merchant Shipping Act 1988) as it was in conflict with European Union Law.
Bradbury v Enfield London Borough Council (1967):
- The Education Act 1944 provided that, if a local education authority intends to establish new schools or cease to maintain existing schools, notice must be given to the minister, following which, public notice must be given in order to allow interested parties to comment. The Council breached the requirement of public notice and the plaintiffs sought an injunction. The Council claimed that educational chaos would occur if they were required to comply with the procedural requirements. That plea met with little sympathy in court. Lord Denning stated that:
- …if a local authority does not fulfill the requirements of the law, this court will see that it does fulfill them. It will not listen readily to suggestions of ‘chaos’. The department of education and the council are subject to the rule of law and must comply with it, just like everyone else… I can well see that there may be a considerable upset for a number of people, but I think it far more important to uphold the rule of law. Parliament has laid down these requirements so as to ensure that the electors can make their objections and have them properly considered. We must see that their rights are upheld.
Damages / Contempt
- Damages - remedy may arise suing authorities for tortious injury or breach of contract.
- Part 54.3(2) Civil Procedure Rules (1998)
- The contempt jurisdiction - M v Home Office
- Disobedience of an injunction / mandatory order = punishable with contempt
- Interference with court process, or refusal to abide by a court order