#14847 - Legitimate Expectation - Comparative Public Law

Legitimate Expectation

UK & EU Law

Definition

• Something said or done by administration has generated legitimate & hence justified expectation that the C will receive certain benefits (procedural or substantive or both)

Categories of case

1. Generalised policy – gov seeks to change policy but individual claims legitimate expectation created (contentious)

   • Niazi [2008] EWCA Civ 755 – Laws LJ shows unwillingness to allow C to base case on ‘category 4’ = shift from one general policy to another

2. Generalised policy – gov seeks to deviate in particular instance without changing policy

3. Individualised representation falling short of actual decision

   • May include policy applicable to more restrictive group

4. Decision made by public body from which it seeks to resile

Reasons for protection & concerns about doctrine

• Rationales

  • Fairness

  • Efficiency – trust in government promoted if individuals can rely on policies & unequivocal representations

  • Equality

  • Reliance

• Concern — Danger of ossifying/stagnating public policy

  • BUT always open to public body to rely on supervening public interest requiring departure from expectation – evaluate on case by case basis

  • BUT even if court finds legitimate expectation, judgment is temporally limited & doesn’t fix public policy on that issue for all time

    • Eg can only be invoked by those that acted in reliance while policy in place

Crucial issues arising in legitimate expectation cases

• Is representation/policy sufficiently definitive to give rise to legitimate expectation?

  • 90% of cases fall on basis that no legitimate expectation – but doesn’t follow that courts are being too harsh

• If legitimate expectation is established – What test for review should be used when gov seeks to act in contravention of legitimate expectation?

  • EG assertion of public interest

  • Coughlan [2001] QB 213

    • If the test is unreasonableness in the Wednesbury sense, then

      • Government would basically always win

      • Would leave no room for substantive review, if review for Wednesbury unreasonableness would yield same result

        • Except in cases where government simply asserts no reasonable expectation and issue doesn’t arise

    • Heightened Wednesbury

    • Proportionality: Nadarajah [2005] EWCA Civ 1363 (no HL authority on the point yet)

Matters particular to UK law

Intra vires determinations

• Pre-Coughlan – Courts recognised procedural legitimate expectation but equivocal about recognising substantive legitimate expectation

  • Richmond – Laws LJ

  • Hargreaves – substantive legitimate expectations a ‘heresy’

• Coughlan [2001] QB 213 – Sedley LJ on legitimate expectations – recognised legitimacy of substantive legitimate expectations

  • PC says shows ‘malleability’ of CL

  • Had to distinguish Hargreaves (CoA) & Findley (HL) which both denied existence of the doctrine

    • Where only expectation that C had was that would be treated fairly in accordance with the rules in place at the time – essentially Wednesbury unreasonableness

      • = Harbury’s, Findley

  • Looked to decisions which didn’t use the terminology ‘legitimate expectation’ but could be justified on that basis

    • Preston (HL); HTB per Denning LJ – where representations by public bodies & court considered that representations were binding

    • Explained that reason was that representation had created legitimate expectation

      • Interestingly cf the private law – haven’t adopted Waltons v Maher as founding estoppel as a sword // Aus hasn’t adopted legitimate expectation

      • No need for reliance in public law legitimate expectation

• Post-Coughlan

  • HL adopted doctrine: Reprotech per Hoffman LJ

    • Bibi [2002] 1 WLR 237

    • Begbie [2000] 1 WLR 1115

    • Nadarajah [2005] EWCA Civ 1363

    • Niazi [2008] EWCA Civ 755 – Laws LJ shows unwillingness to allow C to base case on ‘category 4’ = shift from one general policy to another

Ultra vires determinations

• If representation is ultra vires the public body – under UK law does not create illegitimate expectation

• Can be ultra vires as

  • Action represented ultra vires the public body in general

  • Representer not authorised to make the representation/do the act promised

    • Courts more forgiving in this category

• PC thinks this is too draconian – should balance public interest with harm to individual

  • Distinction between intra vires & ultra vires is a flexible one

    • If court minded to be sympathetic, will treat as intra vires: eg Bibi [2002] 1 WLR 237 (representation was probably ultra vire but treated as intra vires – recognised by CoA to a certain extent – Counsel for the government didn’t take the point)

Matters particular to EU Law

• Meaning of concept, types of case & rationales are the same

Questions arising – similar to UK

• Is representation/policy sufficiently definitive to give rise to legitimate expectation?

  • 90% of cases fall on basis that no legitimate expectation – if anything EU is tougher

  • EU gives more weight to ‘prudent trader’ rule – ie if reasonable trader could or should have foreseen changes that would disappoint an expectation, then no actionable legitimate expectation

    • IE looks to representee (obligation to foresee changes) as well as representer (definitive nature of representation)

    • EU is primarily an economic organisation – claims primarily brought by traders

• If legitimate expectation is established – What test for review should be used when gov seeks to act in contravention of legitimate expectation?

  • Government can plead public interest rationale & courts can review that rationale: eg milk case in 120/86 Mulder [1988] ECR 2321

  • Precise test is not clear – looks to be proportionality/balancing test but not explicit

Notable characteristics of Caselaw

• Court has not distinguished between procedural & substantive legitimate expectations

• CF UK –

  • significant in intra vires / ultra vires distinction

  • procedural expectations recognised first, then after much hesitation, substantive legitimate expectations

• No such historical difference in ECJ decisions

• Categories

  • More ‘category 1’ cases (formal decisions from which public body seeks to resile)

    • no retrospective withdrawal of expectation – often not prospective either

  • Category 3 cases (policy not varied but deviation in particular case) – there is a free-standing argument on similar grounds based on equality of treatment

  • Even more reluctant to recognise ‘category 4’ (variation of general policy) than UK

Ultra vires determinations

• Decision cases – court has made clear since 1950s that will take a balancing exercise (different from UK)

  • Eg public authority makes decision – then tries to go back on basis that ultra vires – court will balance

• Representation cases – ultra vires representation cannot found legitimate representation (same as UK)

• Difficult to reconcile the distinction between the two

  • Final decision cases give stronger normative entitlement – stronger expectation of rights

  • BUT final determination also makes clearer whether ultra vires or not

    • Representation will probably be less sharply defined/focussed

Practical note – C can plead right rather than legitimate expectation

• BUT in EU, most of claimants are relying on economic legitimate expectation – more difficult to reconceptualise as a substantive right – courts reluctant to recognise as property right (despite broad formulation in the charter)

France

Doctrine of legitimate expectations — rejected

• Siguiri (CE, 1929) (company set up to mine in colony — public controversy — administration withdrew mining licence without warning — had broad discretion to do so — not illegal withdrawal done in an ‘abusive’ manner — drawing on private law ‘abuse of right’ — illegal — annulled)

  • LE case but not approached on that basis

  • Subsequently interpreted by academics to mean legitimate expectation to be handled fairly — akin to procedural legitimate expectation

    • Seems more likely to be pragmatic approach

    • BUT similar to Preston (“abuse of power”) drawn on in Coughlan

• Principle of confiance légitime recognised by TA Strasbourg in Entreprise Transports Freymuth (1994)

  • F imported refuse from Germany

  • 1975 law provided for prohibition of refuse by agreement between States

  • 1990 regulation introduced need for authorisation for import – but did not prohibit any particular category

  • F obtained authorisation

  • 1992 regulation prohibited importation of certain categories of refuse

    • Exception allowed importation provided there was a scheme for sale & disposal, but no such scheme in place at the time

  • F claimed loss of 1/3 of profits & sought damages

HELD

• TA — Breach of legitimate expectation – that 1990 regulation would not be suddenly changed with immediate effect & without transitional provisions

  • Narrow exception — but interestingly focuses on shift in policy

  • Syndicat national de la meunerie a siegle (prices for rye fixed in 1947, said would apply til 1952 — less favourable policy adopted in 1950 — producers had relied on policy irrelevant, can change freely — no remedy)

• Nancy CAA, allowing appeal — did not “destroy any hope” or any “promise” but merely ended danger to environment for reasons of public interest — but didn’t disavow principle in whole

• CE — dismissed further appeal

• Resisted in CE in Rouquette (1999) (social security change — LE arose only if implementing EU law — no reference to such a principle in French law)

Principle of “legal certainty”

• Principle of legal certainty: KPMG (2006) (CE invalidating whole code regulating company auditors — ethics code affecting certain contractual obligations — no transitional provision...