#15604 - Jr Procedure - Administrative Law

JUDICIAL REVIEW PROCEEDURE 1

If an individual wishes to sue a public body for breach of contract, he may do so in the ordinary way (i.e. there are no special rules here). The same is true if the individual wishes to issue a claim in tort. However, as against such private law claims, if an individual wants to claim in public law then two questions arise:

1. Is the defendant actually subject to the public law duties to act reasonably / fairly etc.?

2. Second, if the prospective defendant is subject to these public law duties, how, procedurally, may they be enforced?

NB: the general principle is that public law matters should be litigated bot by issuing a claim in the ordinary way, but through a special ‘judicial review procedure’.

Beatson: suggests 5 basic justifications for the existence of a specialist JR procedure.

1. the desire to create a specialist administrative law court;

2. a desire to match procedure to the type of issue;

3. to protect public authorities from harassment by unmeritorious or untimely claims

4. to underline the limited scope of judicial review;

5. to deal with locus standi.

NB: However none of these except (iii) necessarily involves the distinction between public and private law. Even regarding (iii) it could be argued that some private decisions, for example those of bodies such as the Jockey Club, deserve equivalent protection.);

ORDER 54 PROCEDURE

The origins of today’s judicial review procedure

The CPRs were introduced, beginning in 1999, in an attempt to improve the way in which civil litigation is conducted in England and Wales. Their overriding objective is to enable the courts to deal with cases ‘justly’.

Today’s JR procedure shares much in common with its predecessor, which came into being as a result of reforms introduced in 1977 and finessed in 1981. Prior to these reforms, prerogative (i.e. the remedies listed in s.52(2) above) and ordinary remedies (remedies listed in s.54(3)) were unavailable in the same proceedings and it was the obvious practical utility of making all remedies available in a single set of proceedings which was the driving force behind the reforms, this is illustrated by the following:

Law Commission No. 73, Remedies in Administrative Law, 1976:

• Cite the Frank’s Commission to demonstrate the unsatisfactory nature of the old law — Franks noted that there were two sets of remedies against administrative abuse of power which, “overlap but do not coincide, which must be sought in wholly distinct forms of proceedings, which are overlaid with technicalities and fine distinctions, but which would conjointly cover a very substantial area of the existing field of judicial control.”

• The LC recommended, in light of these difficulties, that there should be one ‘application for judicial review’, under which “a litigant should be able to obtain any of the prerogative orders, or, in appropriate circumstances, a declaration or an injunction.”

• They note that the “vital difference” from the present system would be that “the litigant’s choice of remedies in the Divisional Court would not be limited to the prerogative orders but would also … [include] a declaration or an injunction.’

Following the Law Commission’s report the bulk of proposals were brought into being by an amendment in 1977 to Order 53 of the Rules of the Supreme Court —a further amendment was brought in 1980 and the Senior Courts Act 1981 affirmed and codified certain aspects of the amendments to Order 53.

As a result of these reforms, the application for JR (the forerunner of today’s procedure) was introduced, thus making it possible to seek prerogative and ordinary remedies in the same proceedings.

Supreme Court Act 1981, ss. 29‑31

s. 29 — Mandatory, prohibiting and quashing orders.

1. The orders of mandamus, prohibition and certiorari shall be known instead as mandatory, prohibiting and quashing orders respectively.

s. 30 — Injunctions to restrain persons from acting in offices in which they are not entitled to act.

1. Where a person not entitled to do so acts in an office to which this applies, the High Court may—

1. grant an injunction restraining him from so acting; and

2. if the case so requires, declare the office to be vacant.

2. This section applies to any substantive office of a public nature and permanent character which is held under the Crown or which has been created by any statutory provision or royal charter.

s. 31— Application for judicial review.

1. An application to the High Court for

1. a mandatory, prohibiting or quashing order;

2. a declaration or injunction under subsection (2); or

3. an injunction under section 30 restraining a person not entitled to do so from acting in an office to which that section applies,

shall be made in accordance with rules of court by a procedure to be known as an application for judicial review.

2. A declaration may be made or an injunction granted under this subsection in any case where an application for JR has been made and the High Court considers that, having regard to:

1. the nature of the matters in respect of which relief may be granted by [mandatory, prohibiting or quashing orders];

2. the nature of the persons and bodies against whom relief may be granted by such orders; and

3. all the circumstances of the case,

it would be just and convenient for the declaration to be made or the injunction to be granted, as the case may be.

3. No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

4. On an application for JR, the court may award damages, restitution or the recovery of a sum due [i.e. debt] if:

1. the application includes a claim for such an award arising from any matter to which the application relates; and

2. the court is satisfied that such an award would have been made if the claim had been made in an action begun by the applicant at the time of making the application.

5. If, on application for JR, the court quashes the decision, it can also:

1. remit the matter to the court, tribunal or authority which made the decision, with a direction to reconsider the matter and reach a decision in accordance with the findings of the High Court, or

2. substitute its own decision for the decision in question.

(5A) But the power conferred by subsection (5)(b) is exercisable only if–

1. the decision in question was made by a court or tribunal,

2. the decision is quashed on the ground that there has been an error of law, and

3. without the error, there would have been only one decision which the court or tribunal could have reached.

6. Where Court considers there’s been undue delay in making an application for JR, may refuse to grant:

1. leave for the making of the application; or

2. 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.

7. Subsection (6) is without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made. [i.e. preserves the previous 3-month time limit [unless good reason] under Order 53]

s.31A —deals with the transfer of judicial review applications to Upper Tribunal

Bamforth (from SR lecture notes): the most significant thing isn't what this says, but what it doesn’t say —it tells us a lot about procedure (time limits etc.), but what’s missing is any discussion at all of the grounds on which C can get JR (e.g. Wednebsury, jurisdiction, procedural unfairness) or which bodies you can proceed against. These bodies were deliberately left out, and were left to common law to develop— the benefit of this is that courts have been able to develop this area (so things like the law on jurisdictional error have evolved at fast pace) On the other hand, this has led to the problem, still today, that there’s been persistent litigation about which bodies are subject to JR, and in relation to which activities. The uncertainties that have been in place since 1981 are still in play today—indeed the root cause of a lot of the problems that we have now are that no attempt was made to address this stuff

Issues with this procedure (Elliott)

• Applicants under the Order 53 procedure had to comply with a number of conditions designed to protect public authorities against litigation which would unduly interfere with the discharge of their public functions.

  • For example (under Order 53 r.3(2)) applicants were required to obtain the leave of the court to seek JR by applying ex parte to a Crown Office judge.

  • They also had to bring their application “promptly and in any event within three months from the date when grounds for the application first arose” unless there were good reasons for non-compliance with this requirement (Order 53 r.4(1)).

Law Commission Report No. 226 (1994) and comment

Part 54 came into force in October 2000, following the ‘Bowman Report’, which advocated (with some modifications) the implementation of many of the Law Commission’s recommendations in report 226 (1994):

LC’s recommendations:

• LC is recommending reform of the procedures and modes of relief available in JR proceedings.

• The

• The LC’s 1976 report on remedies paved the way for modern procedure in Order 53 of Rules of Supreme Court. The LC note that the procedural mechanisms introduced in 1977, revised in 1980, “have...