#14846 - Standing Remedies - Comparative Public Law

Standing & Remedies

Major issues

UK

• Public <> private divide –

  • no rigid divide in courts, no rigid divide in substance (eg mostly private law principles applied to determine liability of public bodies)

  • BUT distinct procedures and remedies for public law

• Standing not a major issue, but remedies & procedures are controversial

EU

• Standing a major problem (extremely narrow), but remedies & procedures are fairly well accepted

  • Direct (individuals before EU courts under art 263, can appeal up to ECJ)

    • Very difficult to get standing

  • indirect challenges (initiated in national courts – but national courts cannot rule on validity – makes reference under art 267 to ECJ)

    • Query whether this form of access compensates for difficulties in direct challenges

• But can’t just transplant UK standing laws – different context…

France

• Rigid divide between public & private law – different courts & distinct law – tribunal de conflit determines

UK law

Remedies

• Certiorari (renders void ab initio), mandamus (show duty on part of public body), prohibition – exclusive to public law

• Declarations, injunctions, habeas corpus, damages

• All remedies discretionary

Procedure

• Section 31 of Senior Courts Act; CPR 54

• 2-stage process (unlike EU where direct access)

  • Permission –

    • Must show

      • arguable case & reasonable chance of success –

      • standing – if have ‘sufficient interest’: s 31 SCA

        • relaxed standard re individuals, essentially applied only to remove vexatious litigants

      • within 3 month time-limit - generally strictly applied

    • appears to dispense with about 40% of cases

  • Full hearing –

    • Cross-examination and discovery are discretionary

• Justification for these restrictions

  • Protect public bodies & allow them to fulfil their public functions without undue disturbance

  • Apart from standing, no restriction in law on who could sue – unlike contract, etc, where only party to contract could sue

Principle of exclusivity – connection between process & remedies

• On move away from prerogative writs – principle of procedural exclusivity required all public law claims to go through that route: O’Reilly v. Mackman [1983] 2 AC 237

• Exceptions

  • When parties agree

  • Collateral attack – opting out of s 31 (where cause of action has public law element, can opt out but can’t get public law remedies) – particularly attractive in light of time limits

    • Where action primarily private law – eg contract claim against public body = primarily private

      • Roy v. Kensington & Chelsea FPC [1992] 1 AC 624 (dispute about Doctors’ contracts primarily private law – can opt out of s 31 procedure)

    • Where raised as a defence – procedural protection is to prevent abuse of process – if public law matters are being raised as defence, cannot be abuse of process

      • Boddington v. British Transport Police [1999] 2 AC 143 (by-law preventing smoking in certain carriages of train – passenger fined for smoking – challenged validity of by-law in defence raised in defence so could opt out // but by-law turned out to be valid so defence was ineffective)

        • Procedural matter went all the way to the HL before the substance could be heard

  • Various other exceptions developed – shifting to abuse of process analysis – ie unless abuse of process, then special procedure protections for public bodies not necessary – see Clark v. University of Lincolnshire & Humberside [2000] 1 WLR 1988

• Created difficult rules & exceptions about public<>private divide

Standing

• Standing – if have ‘sufficient interest’: s 31 SCA

• Permission stage <> full hearing | individuals <> groups

  • Permission stage – low standard used to eliminate vexatious litigants

    • Rationale – allows JR to expose questionable activity & for JR to be used as political platform without necessarily allowing to go to full hearing

      • BUT doesn’t seem like an argument for lenient standing

  • Can also arise at full hearing: R. v. IRC, ex parte National Federation of Self-Employed [1982] AC 617

    • May raise whether the best-placed litigant

Permission stage

• Individuals – generally standing granted unless vexatious

• Groups – easier than at full hearing – very rare not to get standing –

  • cf Al Haq (not granted standing – justiciability issue as well – Palestinian interest group challenged UK decision to give money to Israel – only challenge open was a constitutional one – from that point of view the only sufficient interest would be of a UK citizen no standing)

Full hearing

• Individuals – where indirectly affected by decision –

  • R. v. IRC, ex parte National Federation of Self-Employed (Fleet Street Casuals Case) [1982] AC 617 (freelance journalists signing off with pseudonym to avoid tax – IRC reached tax settlement with journalists – Federation miffed because their honest members were paying tax – challenged validity of settlement ‘fusion’ approach to standing – consider likelihood of action being brought/being successful)

  • Bollinger (?) decision (victims’ family seeking JR of sentence of offender – teenagers killing toddler – perceived mandatory life sentence too harsh – sought JR no standing)

• Groups – inconsistently dealt with

  • Link to individuals

    • “associational” standing – bringing challenge on behalf of some of its members

    • “representative”/”surrogate” standing – group bringing challenge on behalf of others – because group better placed

    • generic public interest claims

  • More likely to get standing where group closely linked to interested individuals

    • R. v. Inspectorate of Pollution, ex parte Greenpeace (No.2) [1994] 4 All ER 329 – members of Greenpeace lived in affected area

    • Child Poverty Action Group Case – representing people that are otherwise unlikely to have interests represented in courts

  • Or if have statutory responsibility

    • Eg Human Rights Commission, statutory body for protection of animals

    • OR if a responsible & recognised group – if longstanding group, consulted by government, etc

  • Groups can’t bring ss 7&8 HRA challenges for damages – the victim must be the litigant

  • Many insufficient interests don’t combine to make a sufficient interest – R. v. Environment Secretary, ex parte Rose Theatre Trust [1990] 1 QB 504

EU Law

Procedure – Direct <> Indirect challenges

Direct challenges

= individuals before EU courts under art 263, can appeal up to ECJ

• Very difficult to get standing

• Art 264 – if action unlawful, remedy is action is annulled (ab initio)

• Art 264(2) – Court may decide which aspects of decision are ‘definitive’

  • • Case C-51/92 P Hercules Chemicals[1999] ECR I-4235 (breach of duty to allow access to documents in competition law case – normal consequence would be to annul – Ct looked at consequences of lack of access – said lack of access not

  • Temporal limits can be imposed on annulment –

    • Legal certainty reasons – Case C-378/00 Commission v EP and Council [2003] ECR I-937, [73]-[77] – budget measures – suspended decision making invalid until new measures came into place

    • Questionable reasons – Kadi – freezing assets – measure breached procedural protections in Kadi I – but unless temporal limitation, assets would be liquidated/removed – quashing suspended for 3 months while procedural protections could be put in place

• Certiorari only – no mandamus – Up to institution to decide how to respond to annulment – decision is simply annulled and then institution to react – have to bring separate action to recover money

  • Case T-104/02 Gondrand Frères [2004] ECR II-3211, [20] (anti-dumping levies found to be unlawful – Court annulled decision – but cannot order money to be repaid – Commission must determine course of action)

    • Commission has duty under art 266 to respond to judgment

    • If no action can bring action under art 265 (action for inaction) – have to go back to court to seek restitution

• Interim injunctions arts 278 & 279

  • Likelihood of success; urgency of need of measure & (mostly) whether loss irreparable

Indirect challenges – art 267

= initiated in national courts – but national courts cannot rule on validity – makes reference under art 267 to ECJ

• Query whether this form of access compensates for difficulties in standing direct challenges

• Invalidity in indirect challenge has erga omnes effect – determination in respect of one state is sufficient for other States to see as invalid

  • Case C-228/92 Roquette Frères SA [1994] ECR I-1445, [17]

  • Case 112/83 Société de Produits de Maïs [1985] ECR 719

• When directives struck down as unlawful

  • First time a directive struck down in Digital Rights Ireland (data retention directive unlawful – has erga omnes effect – all States can see as unlawful – directive unlawful – but ECJ can’t comment on invalidity (as a matter of EU law) of implementation measures, that is a matter for the domestic courts)

    • NB – most countries repealed before legal challenge came along <> UK provided separate statutory basis to shore it up

• Court generally

  • Voids ab initio for parties before court and others with litigation in process

  • Void from that point forward for everyone else – avoids knock-on consequences for third parties

• Interim injunctions arts 278 & 279

  • In indirect challenges – National courts cannot comment on validity of EU measure (must refer to ECJ) – but can give interim injunction pending reference to ECJ

  • National provisions for injunctions apply

Standing – Art 263

Direct challenges

Tests for standing

• EU Institutions (member states, Parliament, European Central Bank) – have automatic standing

• Individuals

  • Only have standing to...