Public Law Remedies – Judicial Review
Stewart Fairhurst
Slide 1
Welcome to the this lecture on Public Law Remedies. This lecture focuses on
Judicial Review.
Slide 2
Before an action for judicial review can occur, certain requirements need to be
met. Throughout this lecture you will learn how to bring this type of claim and
what remedies are available. You are expected to have prior knowledge of
Judicial Review from your Public Law course. In addition you will also need to
obtain a copy of Part 54 Civil Procedure Rules because it is this part which
governs Judicial Review.
Slide 3
The case of Council of Civil Service Unions v Minister for the Civil Service
[1985] AC 374, identified three heads under which judicial review might be
sought. These are:  Illegality,
 Irrationality; and
 Procedural Impropriety
I will not be going any further in to these because you are expected to know
what they are from your Public Law lectures.
Slide 4
Judicial review of an is an important and also a very useful area of law.
However there are clear limits regarding the scope of this type of remedy.
There are 4 main categories, these are: 1.
2.
3.
4.
Judicial review is only available in public law cases
It is a remedy that can only be used as a last resort
An applicant for judicial review must have sufficient interest; and finally
the applicant must act promptly.
Slide 5
A Judicial Review claim is defined by Part 54.1 (2) (a) as a claim to review the
lawfulness of (i) an enactment, or (ii) a decision, action or failure to act in
relation to the exercise of a public function. So the effect is that when you
bring this type of claim, you are challenging the lawfulness of an act of
parliament, as in the case of the pro fox hunters or you appealing against a
decision, action or omission in relation to a public function. For example you
local council may want to build a road through your garden. To overturn this
decision you could make a judicial review, especially if they have acted in
such a way which amounts to one of the grounds for type of claim.
This remedy is available against a decision, action or omission by a public
body. This is not just restricted to government agencies or the council. It can
also include non-statutory bodies which exercise a public function. For
example in the case of R v Panel on Takeovers and Mergers, ex parte Datafin
plc [1987] QB 815, it was held that a non-statutory body regulating business
dealings in the City of London was susceptible to judicial review. Examples of
bodies which can be subject to Judicial Review are, borough councils,
government ministers and even the BBC.
Not only can a decision of a public body be reviewed but also the decision of
an inferior court can be challenged. For example decisions of the Magistrates
court can be challenged using this method. However it must be noted that
Section 29 subsection 3 of the Supreme Court Act 1981 excludes Judicial
Review of the decisions of the Crown court if the decision does not relate to a
matter on indictment.
So what happens if you have a case where you feel that an appeal will be
successful. For example you intend to appeal against a decision made by the
Magistrates court regarding a point of law they have, in your opinion,
interpreted incorrectly. What do you do? Well in this situation you make an
appeal to the Crown Court or you can make a judicial review. Problems can
arise as to which process of appeal you should use. Fortunately there is
guidance on this matter. We are looking at this next.
Slide 6
The answer to this question lies with a judgement made by the Court of
Appeal in the Trustees of Dennis Rye Pension Fund and Sheffield City
Council which can be found at volume 4 of the 1997 All England Law Reports
at page 747.
The Court stated the following: 1. If it is not clear which method to use, whether judicial review or a
private law remedy, it is safer to use judicial review.
2. If a case is brought seeking a private law remedy and an action is
raised to strike out the claim, the court, before it does must ask itself
whether it is clear that permission would have been granted had the
clamant sought to bring judicial review proceedings.
3. If the claimant brings a private law claim which is more appropriate
than an application for judicial review, any application to strike the
claim out on grounds that it should be tried by judicial review will not
succeed.
4. If the claimant brings a private claim, and it is unclear whether
proceedings should have been brought by way of judicial review, the
court should consider its ability to transfer the case to the Crown Office
list instead of striking out the claim.
5. The choice made by the claimant as to which way to proceed with their
case, will not be considered an abuse of process where that choice has
no significant advantage for either party, the public or the court.
Slide 7
Basic guidance can be drawn from Section 31 (3) Supreme Court Act 1981.
This states that an applicant MUST have sufficient interest in a matter to
which the application relates.
Sufficient interest is not defined either by the Act above or the Civil Procedure
Rules, but its meaning was considered in the case of R v IRC ex parte
National Federation of Self Employed and Small Businesses [1982] AC 617
by Lord Denning MR who said: “The men are called the Fleet Street casuals. There are about 6,000 of them.
They do casual work for newspapers. They love a bit of humour. When
signing their day dockets, they do not sign their true names. Hey use fictitious
names and addresses. One favourite is Mickey Mouse of Sunset Boulevard.
But they do not sign in these names merely for fun. They use them for a
serious purpose. It is to hide their true identities so that they should not be
discovered by the taxmen. By this means the Fleet Street casuals have
defrauded the Revenue of about £1 million a year. The employers did not
know their true names. Only the unions did and the revenue had no access to
these lists. So they could not assess them for tax. This dodge was publicised
by panorama. The Inland Revenue came under great pressure to put a stop to
the practice. The unions threatened strike action if changes were made. The
Government was anxious to avoid a newspaper strike. The Inland revenue
reached a deal that they would not try to recover back taxes provided the
practice ceased forthwith.”
The National Federation challenged the legality of the Inland Revenue’s
actions. But did they have standing? Their legal rights were not affected. The
Court of Appeals decision that they had standing was reversed by the House
of Lords who felt that they did not have sufficient interest. The court in this
case also stated that pressure groups did not have sufficient standing.
In order to be heard, applicants must have the requisite standing (locus
standi). The majority of judges in the IRC case agreed that the court was
forced to consider questions of standing at:
- The permission stage; and
- At the main stage (second stage)
They tended to link the requirements of standing to the merits of the
application. The stronger the case, the greater the illegality claimed and the
more generous the courts would be in allowing people to challenge a
decision. In the IRC case the judges were divided as to whether there was the
same test of standing for each of the remedies because traditionally the
courts had been more generous in allowing certain orders than for other
remedies.
The judges were agreed that:- You did not need to have a legal interest in order to challenge; and
- Busybodies should not be allowed to challenge.
We were given some guidance by the Lord Diplock In R v IRC ex parte
National Federation of Self Employed and Small Businesses [1982] AC 617 at
page 643. He said: “The purpose is to prevent the time of the court being wasted by busybodies
with misguided or trivial complaints of administrative error, and to remove the
uncertainty in which public officers and authorities might be left as to whether
they could safely proceed with administrative action while proceedings for
judicial review of it were actually pending though misconceived”
Whether a person has an interest depended upon the strength of their
application. Subsequent cases were very generous in allowing people to
challenge illegality. The case of R v Felixstowe JJ ex parte Leigh and another
[1987] 2 QB 582 demonstrates how the court dealt with a problem concerning
the standing of one of the applicants.
“The question whether a person had sufficient interest to bring an application
for judicial review had to be decided by the court in its discretion on the facts
of the particular application. In the circumstances the applicant had failed to
show that he had a sufficient interest in the disclosure of the justices’ names
for the purpose of his article. It followed that he was not entitled on that
ground to an order for mandamus. However, he had sufficient interest
because of the public interest in the maintenance and preservation of open
justice in magistrates’ courts, which was a matter of vital concern in the
administration of justice, to seek a declaration. The declaration would
accordingly be granted.”
There has been some deviation from the guidelines laid down in the IRC
case, in that pressure groups have been heard by the court. The courts are
willing to hear pressure groups particularly if they have a record of
involvement. Each case is subjective and decided independently of each
other.
Slide 8
There is a need for the applicant to act promptly. Section 31 (6) of the
Supreme Court Act 1981 provides:
Where the High Court considers that there has been undue delay in making
an application for judicial review, the court may refuse to grant
leave for the making of the application; or
any relief sought on the application,
if it considers that the granting of 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.
CPR rule 54.5(1) states that the claim form seeking judicial review must be
filed “promptly and in any event not later than three months after the grounds
to make the claim first arose”. Therefore a claim may fail on grounds for delay
even if it is brought within the three month period.
If the three month period has already expired, the court may grant an
extension of time, but only if there is “good reason” for doing so. For further
information on this see rule 3.1 (2) (a) of the Civil Procedure Rules.
Slide 9
The procedure for seeking judicial review is contained in CPR Part 54 and PD
54. An application for judicial review has two stages:Permission to seek judicial review; and then if granted The Substantive
application for review, which is also known as the Hearing.
At the permission stage the applicant must ask for permission to apply for
judicial review. The court generally at first instance will hear this without a
hearing. The main purpose of this stage is to weed out the hopeless cases.
Where there is a hearing at the stage, the defendant or any other interested
party need turn up unless the court directs otherwise. Where the defendant or
other interested party does turn up, the court will not generally makes any
costs award against an unsuccessful claimant. If the applicant has sufficient
standing to bring the claim for judicial review and there has not been any
undue delay, the judge will go on to consider the merits of the application. The
test applied by the judge is whether the claimants application discloses an
arguable case.
Should the applicant be successful at the permission stage, the claim can
then move to he next stage. That is the main substantive application. Criminal
cases are heard by the Divisional Court, normally with two High Court judges
and civil cases are heard by the Divisional Court, normally with one High
Court judge.
The hearing involves legal argument based on the contents of the claim form
and written evidence. Since evidence is mainly written, it is rare to have a
judicial review involving the cross examination of witnesses. The calling of
witnesses will only occur if there is a genuine question of fact which needs to
be resolved and cannot be resolved on the face of the written evidence.
Slide 10
The remedies which may be granted following an application for judicial
review are set out in CPR rule 54.2. The principal public law remedies which
may be granted are: A quashing order which has the effect of quashing the decision being
challenged.
A mandatory order which has the effect of requiring the defendant to carry out
a particular public duty; most commonly, the effect is to compel a decision
maker to reconsider his decision; and finally,
A prohibiting order (which has the effect similar to that of an injunction, in that
it prevents a public body from acting or continuing to act in a way which is
unlawful.
Please note that rule 54.19 of the Civil Procedure Rules, provides that where
the court makes a quashing order, it may remit the matter to the decision
maker and direct the decision maker to reconsider the matter and reach a
decision in accordance with the judgement of the court. However where the
court considers that there is no purpose to be served in remitting the matter to
the decision maker, the court may take the decision itself.
Slide 11
In addition to the remedies available under Rule 54.2, Rule 54.3 extends the
powers of the court when considering a remedy for a judicial review claim.
These are a declaration, the effect of which is to state the law on a particular
point. For example if a decision is quashed because the decision maker
misunderstood the law, the court can grant a declaration setting out the
correct interpretation. The second power the court has under this rule is to be
able to grant an injunction.
Slide 12
A claim for judicial review may include a claim for damages but cannot be
used to claim damages alone. See rule 54.3(2) of the Civil Procedure Rules.
More than one remedy may be sought in the same application. The grant of a
remedy is discretionary. Reasons for refusing to grant a remedy sought
include matter such as: - The conduct of the applicant, so that the applicant does not deserve
assistance.
- Adverse consequences to the public as a whole.
- If no harm would have been done and had the decision maker followed the
correct procedures it would have not made any difference.
Slide 13
That concludes this lecture. Thank you for listening.