Lecture notes
Illegality
Notes which combine the BPP study notes, lectures and points to note from tutorials. Takes you through the steps to answer an illegality question in an exam.
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By: barjees • 4 year ago
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CON & AD LAW: ILLEGALITYSTEP 1: Discuss preliminaries
Amenability (Part 54.1 CPR; Datafin; Aga Khan; Wachmann).
Procedural Exclusivity (O’Reilly v Mackman).
Standing (s 31(3) SCA 1981; Fleet Street Causals; Rose Theatre; Greenpeace; and World
Development Movement).
Time limit (Part 54.5 CPR).
Ouster Clauses (Anisminic; East Elloe).
STEP 2: What are the substantive issues?
Identify an issue.
Apply the relevant sub-categories of illegality.
Conclude on that issue.
Move to the next issue.
STEP 3: Describe 7 categories outlined by Fenwick (2003)
Simple illegality: Ultra Vires (Fulham Corporation; Westminster Corporation).
Error of law (Anisminic; ex parte Page; ex parte South Yorkshire Transport);
Error of fact: precedent fact (White v Collins); mistake as to an existing fact (E v SOS for HD;
Tameside); no evidence of a fact (Coleen Properties).
Relevant and irrelevant considerations (Fewings; Roberts; Venables).
Improper purpose (Roberts; Wheeler; Padfield; Fewings).
Fettering discretion (British Oxygen; Brent; Collymore; FBU).
Unlawful delegation (Lavender; s 101 LGA 1970; Carltona; Oldahinde).
Simple illegality – the doctrine of Ultra Vires
ULTRA VIRES: ACTING WITHOUT LEGAL AUTHORITY: i.e. ‘beyond the scope, or in excess of legal
power or authority’. E.g. where a public body acts in a way that is not legitimised by the relevant
power/statute; see cases below
AG v Fulham Corp: FC had a statutory power to provide a washhouse. It set up a commercial laundry
business instead. The DM was held to be acting outside of the four corners of the Act
But – a public body will not have acted unlawfully, provided the activity in question is
‘reasonably incidental’ to a power that it did have: Westminster Corp v London and NW Railway:
WC had power to build public toilets & this was held to implicitly include the power to build an access
tunnel under a road to access those toilets - the primary objective was to construct the public toilets,
together with proper means of approaching and exiting from them. Thus, the scheme was not unlawful
as the creation of a subway was incidental to the power
exp Witham: W wished to sue for defamation but the fee was set at £500; He sought JR of the Lord
Chancellor's decision in setting the court fees arguing that his right of access to the court was being
denied by the scale of fees. Held that the Act did not authorise the Lord Chancellor to set court fees so
high that access to court was denied, as it was a fundamental right
Errors of law - Misinterpreting the law
Where the DM misunderstands their legal powers – it could be that the (insert body) has mis-read or
mis-interpreted his own legal powers and (whatever he is supposed to be administering). Therefore this
can be seen to be an error of law comparable to the Anisminic case. The problem with this argument
is that ‘what is meant by…’. This phrase is capable of broad interpretation as with the phrase
‘substantial part of the UK’ in exp South Yorkshire Transport. In this situation therefore, the Admin
Court is unlikely to intervene as it will only get involved if the interpretation provided is outside the range
of reasonable responses
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