#16121 - Standing - Administrative Law

Procedure under Part 54 3

Beatson, Matthews and Elliott – Chapter 14 3

Permission to Proceed 4

Textbook 4

Manning, Salmon and Brown, Judicial Review Proceedings, A Practitioner’s Guide, Chapter 18 4

Beatson, Matthews and Elliott – Chapter 15 4

Statutes 6

Criminal Justice and Courts Act 2015, ss84-88 6

Critique 7

Parliamentary Joint Committee on Human Rights Report (HL 174 HC 868, 2013-2014), parts 2 and 6 7

Craig, UK, EU and Global Administrative Law: Foundations and Challenges, p 158-166 8

Standing 8

Textbook 9

Craig, Chapter 25 9

Beatson, Matthews and Elliott – Chapter 15 9

Cases 11

Summaries 11

Gouriet v Union of Post Office Workers (1978) 11

R v IRC ex parte National Federation of Self-Employed (1982) 12

R v HM Treasury ex parte Smedley (1985) 12

R v Felixstowe JJ ex parte Leigh (1987) 12

R v Secretary of State for the Environment ex parte Rose Theatre Trust (1990) 12

R v Secretary of State for Employment ex parte EOC [1995] 1 AC 1 12

R v Inspectorate of Pollution ex parte Greenpeace (No 2) (1994) 12

R v Secretary of State ex parte World Development Movement (1995) 13

R v Somerset CC ex parte Dixon (1997) 13

R (Bulger) v Secretary of State for the Home Department (2001) 13

R (Feakins) v Secretary of State for the Environment, Food and Rural Affairs (2003) 14

R (Al-Haq) v Secretary of State for Foreign and Commonwealth Affairs (2009) 14

Walton v The Scottish Ministers (2012) 14

Notes 14

Gouriet v Union of Post Office Workers (1978) (NOFL) 14

R v IRC ex parte National Federation of Self-Employed (1982) 15

R v HM Treasury ex parte Smedley [1985] QB 657 17

R v Felixstowe JJ ex parte Leigh (1987) (NOFL) 18

R v Secretary of State for the Environment ex parte Rose Theatre Trust (1990) 18

Cane, “Statutes, Standing and Representation” [1990] PL 307 (Comment on Rose Theatre Trust) 19

R v Secretary of State for Employment ex parte EOC (1993) 20

R v Inspectorate of Pollution ex parte Greenpeace (No 2) (1994) 20

R v Secretary of State ex parte World Development Movement (1995) 21

R v Somerset CC ex parte Dixon (1997) 21

R (Bulger) v Secretary of State for the Home Department (2001) (NOFL) 22

R (Feakins) v Secretary of State for the Environment, Food and Rural Affairs (2003) (NOFL) 23

R (Al-Haq) v Secretary of State for Foreign and Commonwealth Affairs (2009) (NOFL) 23

Walton v The Scottish Ministers (2012) 23

R. v. Social Security Secretary, ex parte Child Poverty Action Group [1990] 2 QB 540 25

*R. v. Foreign Secretary, ex parte Rees-Mogg [1994] QB 552 25

Articles 25

Summaries 25

Cane, 1995 25

Loveland 25

Schiemann, 1990 25

Schiemann, 1996 26

Harlow, 2002 26

Notes 26

Cane, ‘Standing Up for the Public’ [1995] PL 276 26

Loveland 28

Schiemann, “Locus Standi”, 1990 29

Schiemann, 1996 31

Law Comm 226, p41-44; 48-51 31

Standing under the HRA 32

BEATSON, MATTHEWS AND ELLIOTT – CHAPTER 15.7.7 32

Miles, “Standing under HRA 1998” 32

Summary 32

Notes 33

JRP – Judicial Review Proceedings

PLP – Private Law Proceedings (ordinary proceedings)

PLR – Private Law Right

CPR – Civil Procedure Rules

JR – Judicial Review

SCA – Senior Courts Act 1981

RoL – Rule of Law

PA – Public Authority

Origins of Judicial Review Procedure

• Part 54 requires claimants to use the judicial review procedure if a prerogative remedy (Part 54 (2)) is sought, but can choose either the judicial review procedure or ordinary procedure if only ordinary remedies (Part 54(3)) are sought.

• Procedure is designed to protect authorities against litigation that would unduly interfere with the discharge of their public functions:

  • Claimants must obtain leave of the court by applying ex parte to a Crown Office judge (Senior Courts Act 1981, s31(3); Order 53, r3(2))

  • Claimants must avoid delay and apply within three months unless there is good reason for non-compliance (Order 53, r4(1))

  • Courts often unwilling to resolve disputes of fact: reluctant to grant discovery (to allow applicants to check the accuracy of evidence relied on by minister) unless it’s false or inaccurate: R v Secretary of State for the Environment ex parte Islington LBC

  • Courts reluctant to allow cross-examination to test the accuracy of evidence by affidavit: Lord Diplock, O’Reilly v Mackman

• Thus claimants often prefer ordinary procedures to judicial review, but this escape was sealed off by O’Reilly v Mackman

Nature of judicial review procedure

• Part 54, Civil Procedure Rules came into force in 2000 and retained much of the old procedure:

  • Standing requirement (s31(3) SCA 1981)

  • Avoid delay and in any event within three months (CPR 54.5(1))

• Changes:

  • Need to obtain leave remained, but a Pre-Action Protocol was introduced to require interaction between claimant and defendant before a claim is issued

• Thus, many of the conditions restricting the availability of judicial review in Order 53 remained, as did much of the court’s reluctance to permit discovery and cross-examination:

  • CPR 54.1(2)(e) says that the judicial review procedure means Part 8, and CPR 8.1(2)(a)) says that Part 8 applies to claims that are ‘unlikely to involve a substantial dispute of facts’. On this basis, Sher v Chief Constable of Greater Manchester denied permission to seek judicial review of lawfulness of claimant’s arrest because it raised ‘potentially complex disputes of fact’

  • Disclosure is possible but not required unless the court specifically orders it (CPR Practice Direction 54A, para 12.1)

  • CPR won’t encourage greater disclosure because it was designed to save court time and speed up litigation (Cornford, 2005)

• However, there is suggestion of a more liberal approach in cross-examination in human rights cases: R (Wilkinson) v Broadmoor Hospital allowed cross-examination to resolve a dispute of fact (claim concerned articles 2, 3, and 8 – medical treatment against claimant’s will)

  • R (N) v M said that Wilkinson shouldn’t be regarded as for routine application in all human rights cases, but it has been used subsequently, eg. Al-Sweady

• Conclusion: apart from alterations to permission stage and greater willingness to order disclosure and cross-examination in human rights cases, judicial review procedure has stayed much the same as Order 53

• JR requires permission of High Court, governed by Part 54, part 54 Practice Directions and SCA s31

• Permission is required whether or not JR is taken under Part 54 (CPR r54.4)

• Part 54 must be used where C is seeking a quashing order, mandatory order, prohibiting order or injunction under SCA s30; where only a declaration or injunction is sought, Part 54 is optional. If only damages are sought, Part 54 cannot be used.

• Strict time limits must be observed unless there is good reason, which might be:

  • Caused by obtaining legal aid

  • Where A tried to obtain a remedy by other means

  • Communications with proposed D

  • Lack of knowledge of a reviewable decision

• Though the most important consideration in each case would be the overall reasonableness of delay

• Test for permission:

  • Court must be satisfied that there is an arguable case for review, and C has sufficient interest in the subject matter of claim (standing)

• Appeals:

  • Non-criminal applications – A may appeal to CoA, which may grant leave to appeal to SC (Burkett)

  • Criminal applications – No right of appeal to CoA

• The Pre-Action Protocol

  • Is before the JRP proper has begun; adherence isn’t obligatory but courts will normally expect compliance and can take non-compliance into account when giving directions in proceedings or making orders for costs (para 7)

  • Codifies good practice: Cs must send a letter before claim to D outlining grounds of compliant, D must reply within 14 days with letter of response.

  • Encourages interaction between parties before matter reaches court – thereby promoting recourse to alternative dispute resolution (negotiation/mediation)

• Permission Stage

  • C must secure permission (leave) by CPR 54.4 if he wants to litigate, before proceeding onto substantive hearing

  • Purpose of permission stage:

    • Helpful to PAs: Act as a filter to ensure that only serious issues go to substantive hearing (prevents unnecessary distraction for public bodies by the prospect of litigation)

    • Helpful to courts: Allows for efficient management of caseload, saving judicial resources by rejecting cases with little prospect of success

    • Helpful to Cs: provides quick and inexpensive mechanism to obtain the opinion of Admin Court

  • Criticisms of the permission stage:

    • Wrong in principle because it involves treating PAs more favorably than other litigants (Wade and Forsyth)

    • Little empirical evidence that it is practically effective (Bridges, Meszaros, Sunkin)

    • Difficult to apply consistent principles

• Reform of the permission stage

  • CPR Part 54 made significant changes, influenced by Bowman’s proposals concerned with the increasing workload of the Admin Court (and delays caused)

  • Main changes:

    • Courts will normally consider permission without a hearing (Part 54A 8.4)

      • Efficient use of judicial resources

    • Permission stage changed from ex parte procedure (involving only C) to inter partes procedure (involving both C and D) by requiring C to fill in a claim form including a question for the court, and D has an opportunity to respond.

      • Reinforces the Pre-Action Protocol’s encouragement of alternative dispute resolution

      • Prevents post-permission settlement (using permission as a...