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BPP PGDL - Public Law II Lecture Notes
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Covers subject matters from lectures 1 through 4, up to Legitimate Expectation.
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Public Law II PGDL1-Pagers for Exam
03/04/24
Nature and Process of Judicial Review: Five Limitations, Procedure, Remedies
Amenability: Per CPR Part 54.1(2)(a)(ii), JR is a ‘claim to review the lawfulness of a decision,
action, or failure to act in relation to the exercise of a public function.’ Since GCHQ, this
includes exercise of prerogative powers.
Test = But for a self-regulating authority, would Parliament have intervened to
regulate? (R v Advertising Standards Authority Ltd, ex parte Insurance Services plc
(1989) and R v Bar Council, ex parte Percival [1990]).
In ex parte Datafin [1987], the Court established that decisions of self-regulatory
bodies may still be amenable to JR, despite no legal personality and no direct
statutory powers.
Question is whether the body is performing a public law function.
Purely private regulatory bodies such as sporting or religious institutions will not be
amenable (e.g., ex parte Aga Khan [1993] and ex parte Wachmann [1993]).
Public Services that have been contracted out to private providers are complicated.
Where public bodies have discharged their duties by contracting in a private
party, the relationship may be relegated to a purely contractual commercial
relationship (e.g., ex parte Goldsmith [2001]).
Where private entities provide services on the basis of ongoing statutory or
public permissions, the court may find a continuing statutory duty rendering
disputes amenable to JR (e.g., R v Partnerships in Care [2002]).
Procedural Exclusivity: Secondary to Amenability, the courts have established the
Administrative Court as the exclusive procedure for matters of JR.
Challenging public functions in private courts is generally an abuse of process (Cocks
v Thanet DC [1982]). This can be a useful defence to private law proceedings
featuring public issues (e.g., Wandsworth London BC v Winder [1985]).
Exception – Mixed Claims: Where neither party has objected to the use of private law
procedures or where the contested public decision is collateral to some other claim,
it may be permitted.
O’Reilly v Mackman [1983]: REVIEW
Roy v Ken. and Chelsea and Westminster FPC [1992]: A private law claim
brought by an NHS doctor was not struck out, despite relating to public law
rights relating to the statutory framework of NHS pay.
, Public Law II PGDL
1-Pagers for Exam
03/04/24
Clark v Uni. of Lincolnshire and Humberside [2000]: Applicant was permitted
to pursue private claims despite concurrent public law issues. Strict
adherence was less relevant than conducting proceedings justly in
accordance w/CPR Part 1.
Standing: Necessary pre-condition for JR, the Applicant must have locus standi to bring
claim.
Under Senior Courts Act 1981 s 31(3), ‘no application for JR shall be made unless
leave of the High Court has been obtained… the court shall not grant leave unless it
considers the applicant has sufficient interest in the matter to which it relates.’
In Fleet Street Casuals, the Lords advanced a standing test as relevant at both
preliminary and merits stages of a case => Two-Stage Process. Stage 1 turns away
Applicants with low prospects or vexatious claims, Stage 2 enables a full hearing on
standing, anew, accounting for merits and proximity.
Different parties will be treated differently by the Admin. Court, as follows:
Individuals: Those directly affected will have little trouble meeting standing,
including even those with merely citizenly concern (since ex parte Rees-Mogg
[1995]). A Claimant need not establish that they have a greater expectation of
standing than any other citizen (ex parte Dixon [1989]), but the presence of
better-placed claimants may be grounds to refuse standing (DSD and NBV
[2018]).
Associations or Representative Groups: Collectives of individuals with
sufficient interests individually are generally permitted standing for matters of
communal concern. (ex parte Liverpool Taxi Fleet Op. Assoc. [1972]).
Pressure / Interest Groups: Unlike associations, these groups are not
necessarily comprised of members of equal direct affect. The Court
developed a restrictive view in ex parte Rose Theatre Trust Co Ltd [1990],
which limited interest groups of artificial origins designed to engineer
standing.
o However, courts tend to narrowly construed Rose Theatre, applying
Fleet Street instead such that a group’s expertise or reputation,
genuine concern, or absence of another reasonable challenger may
counsel in favour of standing. (Ex parte Greenpeace Ltd (No 2) [1994]
and ex parte World Dev. Movement Ltd [1995]).
Time Limits: Short and strict, under CPR Part 54.5(1-2). A Claimant must file (a) promptly,
and (b) no later than three months after the grounds for claim first arise. Under 54.5(2), time
cannot be extended by agreement of the parties, but may in the court’s discretion under
Part 3.1(2)(a).
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