#14779 - Grounds - BPC Judicial Review

INTRODUCTION 2

The Four Main Grounds 2

Why do Claimants have to plead specific grounds? 2

Drafting Grounds for Judicial Review 2

What Grounds are Available? 3

ILLEGALITY 4

IRRATIONALITY 6

Mistake of Fact 6

Exceptions: 6

Convention Rights Cases: Factual Determinations 6

PROCEDURAL IMPROPRIETY 8

Intervention without prejudice? 8

Duty to Act Impartially 9

Apparent Bias 9

Requirement of fairness (‘Natural Justice’) 10

Article 6: The Right to a Fair Hearing 11

Legitimate Expectation 11

Preliminary Issues 12

Court’s process of determination 12

Factors in the Balance – Substantive legitimate expectation 12

A Worked Example: ex parte Coughlan [2001] QB 213 13

Legitimate expectation examples: 13

PROPORTIONALITY 15

Other Grounds 16

It is important to start by putting your grounds for review in context, they are going to be set out in the documents as attached you the N461 Claim Form with the heading ‘Detailed Statement of Grounds’. The purpose of the grounds is to set out clear reasons why the decision or action being challenged was unlawful. The ground of review boils down to the lawfulness of the decision. The phrase ultra vires is often used in the JR context, this means outside or beyond powers. Your job as acting for C is to persuade the Court that the public body had gone on beyond its powers and the corresponding bodies decision is, therefore, unlawful.

1. Illegality

2. Irrationality

3. Unfairness

4. Proportionality (ECHR)

The C is limited to these established grounds but there is wide scope for finding arguments within them.

Case law has developed grounds of challenge in judicial review cases.

1. Parties are restricted to these grounds;

2. Your credibility as an advocate requires that you understand what the grounds are and how to formulate them;

Your ability to spot strong grounds depends on understanding them fully.

3. Your grounds should set out (See CPR r8.2(b)(ii) and CPR r54.6(1)) and reflect the proper legal basis for the challenge (don’t say one thing and mean another).

Risk – High Court refuses permission / remedy if you fail to formulate within previously recognised categories of legal error

The risk in failing to draft credible grounds is that your claim fails. It is not the judges duty to discern your grounds from vague and undirected argument(s), its your duty to make it clear and credible.

• It must be given proper thought;

• There are no shortcuts to preparation. If you marshall the facts and law properly, they will lead you to your grounds;

• Always check statutory framework and case law to ensure that you are on the correct path;

• ‘Tried and Tested’ is always best;

Case law availability – if an argument has worked in the past, it is very likely to work again.

• Make it easy for the Judge;

• Avoid the scattergun approach -don’t plead weak grounds just to fill the page;

Do not plead every ground which is arguable

• Use JR language not appellate language;

Be precise in the allegations under the grounds

• Avoid merely alleging that a decision is wrong – need to state “The decision is unlawful because …”

This is because High Court does not generally review factual decisions

The main JR grounds were developed through case law. In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410D, one of the questions before Court were whether the common law prerogative powers were amenable to review, the Court decided that they were and stated that:

“… the principles emerging from Judicial Review case law so far, one can conveniently classify under three heads the grounds upon which the administrative action is subject to control by Judicial Review … The first ground I would call “illegality”, the second “irrationality” and the third “procedural impropriety”. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognised in the Administrative Law of several of the members of the European Union Economic Community but to dispose of the instant case, the three already well established heads that I have mentioned will suffice … ’

Lord Diplock

Definition: “The decision-maker must understand correctly the law that regulates his decision making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state s exercisable.”

Lord Diplock – Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374

Examples of Sub-Categories/ Overlapping Categories:

1. Misdirection in Law

Incorrectly applying the law to the facts at hand.

To establish whether an illegality ground is open, first find the source of the decision maker(s) power

• Statutory Provision

Check whether the maker has complied with the Statute in exercising that power.

Check the decided case laws and judgments available.

Judgements usually set out how the power is to be applied.

2. Ultra Vires

Ignoring or exceeding limitations on powers imposed by statute.

The decision is unlawful but for the specific reason that the decision maker has gone beyond its powers for eg. imposing restrictions on the C that it had no power to do

3. Errors of Jurisdiction

Where the decision-maker is not entitled to enter on the decision in question.

Where a decision is made by an individual who was not in power to do so under a scheme of delegation

4. Adopting an unlawful policy/failure to follow an established policy without good reason

Overlaps with legitimate expectation, for eg. C will have a legitimate expectation that a standard policy will be followed and Ds failure to do so will be unlawful

5. Exercising a discretion contrary to the purpose for which intended.

Decision maker cannot use its powers to make decisions contrary to the intended outcome of the statute which gives them those powers

6. Fettering Discretion (either by being dictated to by a 3rdparty or through rigid application of a set of rules/criteria)

A decision maker has a discretion on whether or not to take a particular course of action. They cannot artificially rule out taking a particular course, there must be good reason for not exercising their discretion to take it. For eg. influence by a third (3^rd) party will not be a good reason

7. Taking irrelevant considerations into account / ignoring relevant considerations

Appropriate where the decision maker has included factors in its decision making process which they really shouldn’t have. Or alternatively, it has ignored material factors that should have influenced that decision.

8. Acting in a way that is incompatible with an ECHR right.

Usually pleaded as a distinct ground for review.

Definition: “By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness” ... It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system …”

Lord Diplock – Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374

“If a decision on a...matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere...but to prove a case of that kind would require something overwhelming.”

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

If a decision is concluded on irrational facts of the case, it may be unlawful. This is not the same as an appeal where the argument would be that the Court reached the wrong decision on the evidence, but rather, the decision was unlawful because of the way in which the facts were used in the decision making process.

The Administrative Court is concerned with the decision-making process and does not normally consider claims which dispute the D’s version of the facts.

1. Findings of fact that are ‘irrational’;

2. Facts that trigger the decision maker’s power do not exist;

3. The inclusion of a factual error in decision making amounting to an ‘irrelevant consideration’;

4. Clear mistake of fact (where determining the fact is essential to an error of law);

5. Convention Rights cases.

Where a right under ECHR is at stake, the Court does have the power to conduct its own assessment of the facts :

• R (Wilkinson) v Broadmoor Hospital [2002] 1 WLR 419

Where a mental patient challenged the forcible administration of medical treatment, the court was entitled to reach its own view as to the merits of the medical decision and whether it infringed the patient's human rights. Accordingly, it was appropriate that medical witnesses attend and be cross-examined. In so requiring, the provisions of Art.6 of the Convention would be met

• R (Al Sweady) v SS for Defence [2010] HRLR 2 (6 Claimants)

An Iraqi C sought an investigation into alleged violations of their rights under Arts 2, 3 and 5 by British Troops in Iraq in 2004.

• 1^st C contended that his nephew had been murdered whilst being...