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Exam Notes for Public Law B
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01 JUDICIAL REVIEWNature of JR
1. General principles
JR comprises the inherent power of the High Court supervise the actions of
governmental bodies according to the principles of public law
Purpose: To ensure that administrative policy & decision-making is carried out fairly &
in accordance with the law
JR compared with an appeal
- An appeal assesses the basis / merits of a decision; JR examines the legality /
procedure by which a decision was reached (General Medical Council v Michalak)
- Outcome: Even if one wins in a JR, the court won’t make a decision, but instead will
grant him a special remedy
JR compared with a private law action
- Procedure: Entirely separate court process by which one initiates JR
- Remedies: Special remedies are available in JR (e.g. prerogative orders); A claim of
damages is usually transferred to private law proceedings
Application / Claim for JR
2. Legislative basis
Order 53
- Secondary legislative basis
Senior Courts Act 1981, s 31
- Primary legislative basis
Civil Procedure Rules, Part 54
- Supplements the SCA 1981
Scope of an application / claim for JR
3. What sorts of persons / bodies are subject to JR?
R v Panel on Take-overs & Mergers, ex p Datafin
- Fact: The Panel is a private body which regulates the acquisition & mergers industry
in London (cannot be “opted-out” of) Datafin made a complaint that a company had
breached the Panel’s code of conduct The Panel refused to take action
- Held: A JR claim could be made against a private body
- Principle: Private bodies which effectively perform public law functions are subject to
JR
R v Chief Rabbi, ex p Wachmann
- Fact: Wachmann was exiled from the Orthodox Jewish religion by the Chief Rabbi
due to suspected adultery
- Held: A JR claim could not be brought to examine the decision to exile Wachmann
- Principle: A religious organisation is not subject to JR as it has no connection to the
government / no governmental interest
, R v Disciplinary Committee of the Jockey Club, ex p Aga Khan
- Fact: Aga Khan’s horse was disqualified for suspected cheating
- Held: A JR claim could not be brought to challenge the disqualification
- Principle: A claim can only be made in private law where it concerns contractual
relationships (the court didn’t want to intervene in a sporting event through JR)
Obtaining leave / permission
4. Procedure
Part 54.4, CPR
- “The court’s permission to proceed is required in a claim for JR whether started
under this Section / transferred to the Administrative Court”
Part 54.12, CPR
- (1) Permission decision without a hearing (written procedure)
- (7) If “totally without merit” No hearing allowed
Part 54.11A, CPR
- Permission decision where court requires a hearing
s 31(3), SCA 1981
- No application for JR shall be made unless the leave of the High Court has been
obtained in accordance with rules of court; & the court shall not grant leave unless the
applicant has a sufficient interest in the relevant matter
1st stage: Permission stage
- Paperwork: Written procedure
- Only about 20% cases obtain permission to proceed
- Acts as a filter stage to protect public bodies from undeserving claims (by only
allowing robust claims to proceed)
2nd stage: Merit stage
- Where a claim is found to be “totally without merit” = Bound to fail (R (Grace) v SoS
for the Home Department)
Exclusivity of an application / claim for JR
5. General principles
A person who is seeking private law remedies may use JR procedures to bring a claim
(Part 54.3, CPR)
The Exclusive Principle: One cannot assert a public law right against a public body
with a private law action; The JR process exists to ensure that public bodies are
protected from a flood of litigation Exclusive procedure (O’Reilly v Mackman)
- The Principle was expressly endorsed in Trim v North Dorset District Council
6. When the Exclusive Principle doesn’t apply
Where one is asserting private law rights
- Tort rights
Davy v Spelthorne BC: It was held that a negligent misstatement is a private
law right under tort Not governed by the Principle
- Contractual rights
Clark v University of Humberside: It was held that claim was made on a
contractual basis Not governed by the Principle
, - Certain statutory rights
Roy v Kensington & Chelsea FPC: It was held that some statutory rights are
treated as private law rights Not governed by the Principle
Steed v SoS for the Home Department: A private law claim may be made
although a public law right was being asserted against a public authority,
because the right specifically affected C No exclusivity issue
Where one uses a public law right to defend a legal proceeding being brought against
him (only the express words of a statute may limit / remove such a right)
- Civil proceedings
Wandsworth LBC v Winder: A public law right may be asserted in the defence
of a private law claim
- Criminal proceedings
Boddington v British Transport Police: A public law right may be asserted in the
defence of a criminal proceeding
Standing (the right / capacity to bring an action / to appear in a court)
7. R v IRC, ex p National Federation of Self-Employed
Fact: Fleet Street Newspapers avoided paying income tax for temporary workers by
paying the workers in cash & giving them false names on accounts HMRC
negotiated that if the Newspapers stopped this unlawful practice, they would only
request the previous 2 years’ income tax to be paid, rather than the 6 years which
statute required Agreement leaked to the public The Federation claimed JR on
the lawfulness of the decision not to act in accordance with the law
Held: No sufficient interest
Principle:
- Lord Wilberforce (majority): Relevant factors in considering whether an applicant has
sufficient interest:
(1) The powers of the respondent
(2) The position of the applicant in relation to those powers
(3) The substance of the breach
- Lord Diplock (dissent): No test, just use discretion; Clear words of statute
8. R v SoS for the Environment, ex p Rose Theatre Trust
Fact: A campaign group wished the SoS to prevent building works on the historic
Shakespearian Rose Theatre site SoS refused the group’s request to designate the
site, pursuant to statutory powers, a site of historic significance, which would prevent
building works The group incorporated & brought a JR claim against the decision
not to designate the site
Held: No sufficient interest
Principle:
- Not every person can seek to enforce every public duty
- Sufficient interest is not purely a matter of discretion
- A direct financial / legal interest is not required
- Incorporation does not per se create standing (if no individual member has standing,
the group will not have standing)
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