Judicial Review

Public law issue?

If claimant looking to protect public law rights should do so via judicial review and not an ordinary civil claim.

TEST for does it involve a public body?

SOURCE of power - set up by statute/authority?

NATURE of power - does it exercise public law functions?

Does the claimant have sufficient interest in the claim?

Sufficient interest? Pressure groups factors.

Application for JR may still be rejected even if filed within 3 month time limit if it has been done with undue delay.

Says claimant must have sufficient interest in claim

Courts may refuse a claim where there has been "undue delay"

Claim may exceed 3 months if good reason such as waiting for legal aid.

Implied Ouster Clauses

Lord Diplock identified 3 grounds for JR - illegality, irrationality, procedural impropriety

Acting without legal authority (ultra vires)

Where involves both public and private proceedings, the public law issue can be brought up in private proceedings.

Rule against delegation

Exception of the rule against delegation.
When a government minister sub delegates within his department - convention of individual ministerial responsibility.

Local authorities can delegate to committees so long as they make a formal resolution to do so.

FETTERING DISCRETION

Acting under dictation of another

FETTERING DISCRETION

Creating a general policy and applying it too rigidly

Errors of law - in principle reviewable

Failing to take into account relevant factors AND

Taking into account irrelevant factors

Taking into account irrelevant factors

Improper purpose - not set out by Parliament (such as to raise revenue)

DUAL PURPOSE

Decision should stand if the primary purpose was the proper one

DUAL PURPOSE

Did the pursuit of an unauthorised purpose materially influence the decision?

IRRATIONALITY

"so unreasonable that no reasonable authority could ever come to it"

Applied the Wednesbury principle

Set out rules of natural justice, which are:

The rule against bias
The right to a fair hearing

DIRECT bias where there is an interest leading to financial gain

DIRECT bias where the decision maker is involved in promoting the same cause as a party in the case

Test for bias

Would a fair minded and impartial observer conclude that there had been a real possibility of bias?

Applied Magill test for bias

Duty on decision makers to act in good faith and listen fairly to both sides

Claimants should know the case against them

Hearing should be fair and reasonable

Claimants must have the opportunity to explain their conduct if they are an "accountable" public servant

SET OUT TEST FOR TYPES OF CASES AND FAIRNESS

Also example of Applicant Cases

Forfeiture Case

Legitimate Expectation Case

Where normal procedure hasn't been followed

Legitimate Expectation Case

Where Claimant has been lead to believe they will receive a benefit

There is no right to seek JR if decision is only preliminary not final

No duty for public bodies to give reasons for their decisions

Where a decision appears "aberrant"

Where there is serious impact on a person's right and personal liberty

PROCEDURAL ULTRA VIRES

Courts will consider Parliament's intention when deciding if a requirement is mandatory of directory and whether the consequence of non-compliance would have rendered it unlawful

PROCEDURAL ULTRA VIRES

If requirement is mandatory the decision will be quashed as it makes it invalid

PROCEDURAL ULTRA VIRES

If requirement is directory the decision may not be quashed

If there has been any effort to comply, some effort may amount to substantial compliance

Public bodies must act compatibly with Convention rights.

TEST where a QUALIFIED right is in breach:

1) Is the qualified right in question engaged?
2) Is there an interference with the right? (subsection 1 of relevant article)
3) Is the interference PRESCRIBED BY LAW?
4) Is the interference IN PURSUIT OF A LEGITIMATE AIM?
5) Is the interference NECESSARY IN A DEMOCRATIC SOCIETY?

Proportionality test for "NECESSARY IN A DEMOCRATIC SOCIETY"

1) Is the statutory purpose sufficiently important to limit the exercise of a fundamental right?
2) Are the measures taken rationally connected to the purpose?
3) Are the measures taken no more than necessary to meet the objective?

In absence of a claim in negligence or contract there is no right to damages