#10352 - Jr - BPC Civil Litigation

JR

• = review of manner in which decision made i.e. process corrupted (NOT error of law and / or fact)

• applications brought in admin court (AC) office of QBD (HC)

PARTIES AGAINST WHOM JR LIES

• crown only a nominal party

• JR lies against

  • public + quasi public bodies

  • inferior courts: mags'; coco (rare, usually appeal); election courts; coroners courts

  • upper tribunal

• applications for JR of decision of upper tribunal

  • if upper tribunal refuses permission to appeal decision of first-tier tribunal

    • must bring claim within 16 days of notice to refuse permission to appeal (r54.7A(3))

LOCUS STANDI

• C must have "a sufficient interest in the matter to which the application relates"

  • direct / personal interest

  • ? general interest (pressure groups etc,) - depends on relationship between C + complainant; extent of C's interest; relief sought (less likely to be held to have standing if mandatory order)

PUBLIC LAW

Decision susceptible to JR

• = decision OR refusal by R to make decision

• decision must affect another person by altering private law rights OR depriving other person of benefit

• C CANNOT manufacture a 'decision' by engaging in correspondence with targeted R

Issues of public law

• general rule

  • = abuse of process to bring ordinary claim (i.e. NOT to bring JR action) when public law rights infringed claim will be struck out

• exceptions

1. public law decision is collateral issue in private law claim

2. claim involving challenge to public law decision dominated by consideration of C's private law rights

3. no party objects to matter being brought by ordinary claim

4. claim framed in tort, without raising live public law issue

5. validity of public law decision raised as a defence

GROUNDS

• procedural impropriety

• Wednesbury unreasonableness

• legitimate expectation (to benefit / right notice + reasons for withdrawal)

• illegality

• (apparent / actual) bias

• natural justice (know case against, no-one judge in own case, right to be heard)

REMEDIES IN JR

• can claim following in alternative OR in addition to one another:

1. quashing order

   • reverses decision; AND

     1. remits matter with direction to of inferior court, tribunal, PA to reach decision consistent with AC's finding; OR

     2. substitutes its own decision.

   • if judgment subject to an appeal

     • + permission sought for quashing order AC may adjourn application until appeal determined

     • + permission granted for quashing order AC may stay proceedings to which JR claim relates (r54.10(2))

2. mandatory order

   • requires inferior court, tribunal, PA to carry out duties

   • appropriate for wrongful INaction

   • disobedience = contempt of court

3. prohibitory order

   • restrains inferior court, tribunal, PA from acting outside jurisdiction

   • N.B. cf quashing order, but to prevent wrong decision being taken in first place

4. declaration

   • decision of court on real Q of law OR rights, between parties with real interest in getting it resolved

   • discretionary

   • can be granted against Crown

5. injunction

   • regulate future relationship between parties; OR

   • special type: injunction restraining a person from acting illegally in public office (s30 SCA 1981) (r54.2)

   • granted if just + convenient

   • interim injunction can be granted in pending JR proceedings

   • can be granted against Crown only to protect EU law rights

6. money awards (damages)

   • only recoverable in conjunction with other JR remedy - NOT freestanding (r54.3(2))

   • money awarded if could've been in ordinary proceedings

When JR procedure must / may be used

• must be used if seeking:

1. mandatory order

2. prohibiting order

3. quashing order

4. injunction restraining a person from acting in office in which he is NOT entitled to act (i.e. acting unlawfully) (s30 SCA 1981) (r54.2)

5. any of above AND injunction / declaration (r54.3(1))

• may be used if seeking:

1. declaration

2. injunction (r54.3(1))

JR PRE-ACTION PROTOCOL

• should follow unless D has no legal power to change decision OR application urgent

• procedure

1. letter of claim

1. ID issues

2. seek to establish if litigation can be avoided

2. D's reply

1. usually within 14 days

2. if can't comply with time limit, send interim reply proposing extension

3. contents

   1. whether application conceded in full / part OR disputed

   2. if appropriate new decision OR fuller reasons OR address points of dispute

   3. enclose documents requested by C OR explain why NOT provided

STAGE 1: PERMISSION STAGE

• permission always required (r54.4)

• = filter for frivolous applications

• if error in paperwork, court may allow amendment (emphasis on substance NOT form)

Time limit for filing claim form

• time limit

  • promptly + in any event within 3 months of judgment, order or conviction (r54.5(1), PD 54A para 4.1)

  • decision of SoS OR LA planning decision = 6 weeks (r54.4(5))

• extension of time limit

  • CANNOT be extended by agreement (r54.5(2))

  • court may extend if good reason, applying OO (r3.1(2)(a))

• the promptness requirement - delay

  • court may refuse application (filed within 3-month limit) if NOT prompt if granting relief would:

1. be likely to cause substantial hardship to OR prejudice rights of any person (including general public); OR

2. would be detrimental to good admin, including effect on other potential applicants (SCA s31(6))

   • (promptness probably does NOT apply to EU directive rights)

Issuing JR claim form N.B. = part 8 claim

• JR claim form must state:

1. name + address of:

   1. any person C considers to be 'interested' (re: PA)

2. all parties to proceedings (re: court, tribunal) (PD 54 para 5.1)

3. that C is requesting permission for JR

4. any remedy claimed AND any relief sought under HRA (PD 16 para 15.1(2))

5. HRA issues / remedies: details of ECHR right infringed + details of infringement

6. HRA declaration of incompatibility: details of legislative provision + incompatibility

7. HRA claim founded on finding of unlawfulness by other court / tribunal: details of finding; +

8. HRA claim founded on judicial act infringing ECHR right: details of act + lower court / tribunal

(r54.6, PD 16 para 15, PD 54A)

• JR claim form must include OR be accompanied by:

1. statement of C's grounds for JR

2. statement of facts relied upon

3. any application to extend time for filing claim form; +

4. any application for directions (PD 54A para 5.7)

• JR claim form must be accompanied by:

1. any written evidence in support of: claim OR application to extend time

2. copy of any order C seeks to have quashed

3. claim re: court / tribunal: approved copy of reasons for its decision

4. copies of any documents C relies on

5. copies of any relevant statutory material; +

6. essential reading list + page references for passages relied upon (PD 54A, para 5.7)

• when the claim is issued must

1. file 2 copies of paginated + indexed bundle containing documents required by PD 54A paras 5.6 + 5.7) (PD 54A para 5.9 + r54.6(2))

Service of claim form

• must serve JR claim form + documentation above on D + other interested parties within 7 days after date of issue (r54.7)

Acknowledgement of service

• anyone served with the claim form who wishes to take part in JR proceedings must:

1. within 21 days after service file AoS (r54.8(2)(a)); AND

2. within 7 days after filing serve AoS on C + other interested parties (r54.8(2)(b))

N.B. CANNOT extend time limits under r54.8 (r54.8(3))

• contents of JR AoS

  • must

1. set out summary of grounds on which claim contested; +

2. give names + addresses of other persons filer considers to be 'interested'

• failure to file JR AoS

  • person who fails to file AoS CANNOT take part in permission hearing unless court allows (r54.9(1))

  • CAN take part in JR hearing if when get order, serve written evidence within 35 days to contest claim OR support it on additional grounds ref: r54.14 (r54.9(1)(b)

    • failure to file may be taken account re: costs (r54.9(2))

Granting permission

• considering whether to grant permission

  • papers considered by single judge, WITHOUT a hearing unless A requests a hearing

  • test: is there arguable case for granting relief claimed (on material available)?

• permission granted

  • judge's order + reasons served on C, D + any other person who filed AoS (r54.11)

  • court will give reasons (r54.10)

  • court may give case management directions (r54.10) (see STAGE 2 below)

• permission refused on papers - reconsideration at a hearing

  • C may request for decision to be reconsidered at hearing unless court records that app totally without merit (r54.12(3), (7))

  • C must apply within 7 days of service of refusal of permission

  • C, D + any other person who filed AoS given at least 2 days' notice of hearing date

  • attendance at hearing

    • neither D nor any other interested person expected to attend unless court orders otherwise (PD54A para 8.5)

    • if do attend, AC will NOT generally order costs against C

• permission refused at hearing - appeal to CA N.B. JR always heard in Admin Court

  • APPEAL: HC CA for permission to appeal

    • permission to appeal refused END

    • permission to appeal granted

      • consider whether will allow appeal (i.e. overturn refusal to grant permission)

        • appeal granted back to Admin Court to consider permission Admin court consider permission again; OR

        • appeal granted CA make order granting permission for JR Admin court hear JR

Setting aside permission

• once granted, other parties CANNOT apply for permission to be set aside (r54.13)

STAGE 2: SUBSTANTIVE HEARING

Case management directions

• if permission granted, court may give directions e.g. service of claim form + evidence on other persons; for proceedings to be heard by div court

• claims under HRA

  • court may give directions on giving notice to Crown OR for joining Crown as party (PD 54A para 8.2)

Contesting...