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JR preliminary process - Coggle Diagram
JR preliminary process
Amenability
general: the decision must be amenable to JR- this refers to the nature of the decision, not the nature of the body. This must be a 'public law decision' (a public body carrying out a public function e.g decisions under statutory and prerogative power
e.g. gov depts, local authorities, statutory bodies, regulatory bodies are generally amenable to JR if functions have sufficiently public character, so if there was not this regulatory body, gov would have to step in (R v Advertising Standards Authority Ltd ex parte Insurance Services plc)
CPR Part 54.1(2)(a)(ii)- a claim to review the lawfulness of…a decision, action or failure to act in relation to the exercise of a public function"
R v Panel on Take-Overs and Mergers ex parte Datafin- non-government bodies, carrying out 'public law functions' can be subject to judicial review e.g. self-regulatory body
Exceptions to regulatory bodies: Sporting R v Disciplinary Committee of the Jockey Club ex parte Aga Khan, Religion R v Chief Rabbi of the United Hebrew Congregation of GB and Commonwealth ex parte Wachmann- generally both these types are not amenable to JR
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Procedural exclusivity
General rule: O'Reilly v Mackman- JR was the exclusive procedure for challenging public law decisions. Private law matters were to be dealt with by ordinary action. To bring a public law challenge in any other way would be an abuse of the process of the court
exception: where neither party objects to use of private law route and when contested decision was collateral (rose out of or incidental to another claim)
exception: where case affects both public and private law rights, the courts can be flexible (Roy v Kensington and Chelsea and Westminster Family Practitioner Committee)
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Standing (locus standi)
General: Senior Courts Act 1981 S31(3) No application for judicial review can be made without leave of the High Court in accordance with the rules of the court… the court shall not grant leave unless it considers the applicant has sufficient interest in the matter to which the application relates
KEY CASE IRC v National Federation of Self Employed and Small Businesses aka Fleet Street Casuals Case- established 'sufficient interest test' which is a test of mixed question of law and fact and emphasized connection between applicant’s degree of interest and the matter in connection.
Sufficient interest approach: Two-stage approach- Stage One- initial permission stage- the standing test is designated to turn away those with little hope for success and vexatious litigants (busybodies, cranks and other mischief makers). Stage two- full hearing stage- standing can be reconsidered during the trial hearing. To take into account whether there is strong enough merit, taking into account proximity to the case
Associations
R v Liverpool Corporation ex parte Liverpool Taxi Fleet Operators’ Association- associations of people, representing a group of affected individuals generally are allowed standing as there is logical connection between the association and the decision challenged because the members of the association are affected.
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Time limits
CPR Part 54.5(1) states ‘A claim must be filed (a) promptly, (b) in any event, no later than 3 months after the grounds to make the claim first arose. A claim can still be refused within 3 months if not viewed as ‘prompt’
CPR Part 54.5(2) time cannot be extended by agreement between parties, although it can be extended by the court
CPR Part 3.1(2)(a). Senior Courts Act 1981 S31(6) where there has been undue delay, JR can be refused if the court considers that granting the relief sought would be likely to cause substantial hardship to or substantially prejudice the rights of any person or would be detrimental to good administration
Civil Procedure (Amendment 4) Rules 2013 provide shorter time limits for challenges to planning decisions and public procurement decisions (six weeks and 30 days)
Ouster clauses
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Courts interpret legislation with a very strong presumption that Parliament do not want to exclude JR. Anisminic v Foreign Compensation Commission- clause ‘shall not be called into question in any court of law’ was held to not prevent challenging the decision. Interpreted the determination (decision) was a ‘purported determination’ instead as the decision was illegal
Supreme Court reaffirmed in R v Investigatory Powers Tribunal where they said it was for the courts to determine the limits set by the rule of law. More explicit wording would be required to exclude judicial review
Government reaction has been to be more explicit which worked in R v Upper Tribunal where ‘super’ ouster clauses were upheld. The court only seems to accept this in limited areas and contexts though
time limit ousters
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more recently been reinforced by Civil Procedure Rule 54.5(3) which provides the normal time limit does ‘not apply when any other enactment specifies a shorter time limit for making the claim for judicial review’
other limitation by the courts: S31(2A) Senior Courts Act 1981 says courts must refuse to grant application for judicial review if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred
Remedies (discretionary)
JR only appropriate if no alternative remedy or alternative remedies have been exhausted (R v Plymouth City Council). Lack of using alternative remedies can limit interim or final remedies issued by the court
Quashing order- most common- invalidates the decision, meaning the public body will need to make the decision again, applying correct law and fair procedure
Prohibitory Order- prevents a public body from acting or continuing to act unlawfully
Mandatory Order- compels the public body to perform a public law duty imposed by law
R v London Borough of Croydon shows lack of sufficient resources for a local authority to carry out their duty does not take away their duty. The onus is on local authority to explain why a mandatory Order cannot be made.
Declaration- court may declare a legal position or what party rights are. This does not question the public body’s exercise of power and declarations can be made without any Order or alongside an Order.
Injunction- rare- Order for a party to perform or refrain from performing an act. Sometimes granted at the permission stage as a form of interim relief.
Damages- awarded only if either the court is satisfied that damages could have been awarded in a private law claim or the public body has breached it’s duties under HRA 1998
The Orders are known as ‘prerogative Orders’, specific to JR.