Judicial Review

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Created by amylee94 over 6 years ago


Judicial Review Mind map for revision

Resource summary

Judicial Review
  1. Grounds
      1. Excess of Powers: Ultra Vires
        1. beyond one's legal power or authority. "jurisdictional errors render the decision ultra vires
        2. Irrelevant considerations
          1. Roberts v Hopwood
            1. £4 minimum wage for women. Council raised the minimum wage due to gender. However, this was irrelevant to the considerations.
            2. R v Port Talbot Council
              1. The applicant for a council house was bumped up a waiting list to give him a home earlier. This is unlawful as the only way for this to measured is an applicants wage and need for a house.
          2. IRRATIONALITY
            1. Wednesbury Unreasonableness:
              1. if it is so unreasonable that no reasonable person acting reasonably could have made it (Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948)
              2. GCHQ Case (1985)
                1. Lord Diplock in the GCHQ Case said that this 'applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.'
                1. Audi Alteram Partem: Right to a fair hearing
                  1. Audi Rule
                  2. Procedural Fairness
                    1. RE HK
                      1. Process to deport him was rigorous, no time to deem legal council.
                        1. Common Wealth Immigrants Act 2962
                    2. Legitimate expectations
                      1. 1
                        1. Whether a legitimate expectation has arisen
                        2. 2
                          1. Whether it would be lawful for an authority to frustrate such an expectation
                          2. 3
                            1. If found that the authority has done so what remedies are available?
                            2. Natural Justice and fairness and seeks to prevent public bodies from abusing their powers
                              1. Procedural Legitimate Expectations
                                1. Presumption that a public authority will follow a certain procedure in advance of a decision.
                                2. Substantive Legitimate Expectations
                                  1. When an authority makes a lawful representation that an individual will receive or continue to receive some kind of substantive benefit
                                3. Rule against Bias
                                  1. Duty to give reasons
                                    1. Nemo Judex
                                      1. Nemo Judex In Parte Sua Definition: Latin: no person can judge a case in which he or she is party or in which he/she has an interest.
                                  2. Remedies
                                    1. Quashing Order
                                      1. A quashing order nullifies a decision which has been made by a public body. The effect is to make the decision completely invalid. Such an order is usually made where an authority has acted outside the scope of its powers (‘ultra vires’). The most common order made in successful judicial review proceedings is a quashing order. If the court makes a quashing order it can send the case back to the original decision maker directing it to remake the decision in light of the court’s findings. Or, very rarely, if there is no purpose in sending the case back, it may take the decision itself.
                                      2. Prohibiting Order
                                        1. A prohibiting order is similar to a quashing order in that it prevents a tribunal or authority from acting beyond the scope of its powers. The key difference is that a prohibiting order acts prospectively by telling an authority not to do something in contemplation. Examples of where prohibiting orders may be appropriate include stopping the implementation of a decision in breach of natural justice, or to prevent a local authority licensing indecent films, or to prevent the deportation of someone whose immigration status has been wrongly decided.
                                        2. Mandatory Order
                                          1. A mandatory order compels public authorities to fulfill their duties. Whereas quashing and prohibition orders deal with wrongful acts, a mandatory order addresses wrongful failure to act. A mandatory order is similar to a mandatory injunction (below) as they are orders from the court requiring an act to be performed. Failure to comply is punishable as a contempt of court. Examples of where a mandatory order might be appropriate include: compelling an authority to assess a disabled person’s needs, to approve building plans, or to improve conditions of imprisonment. A mandatory order may be made in conjunction with a quashing order, for example, where a local authority’s decision is quashed because the decision was made outside its powers, the court may simultaneously order the local authority to remake the decision within the scope of its powers.
                                          2. Damages
                                            1. Damages are available as a remedy in judicial review in limited circumstances. Compensation is not available merely because a public authority has acted unlawfully. For damages to be available there must be either: (a) A recognised ‘private’ law cause of action such as negligence or breach of statutory duty or; (b) A claim under European law or the Human Rights Act 1998.
                                              1. Loss of livelihood
                                                1. Economic Loss
                                              2. Injunction
                                                1. An injunction is an order made by the court to stop a public body from acting in an unlawful way. Less commonly, an injunction can be mandatory, that is, it compels a public body to do something. Where there is an imminent risk of damage or loss, and other remedies would not be sufficient, the court may grant an interim injunction to protect the position of the parties before going to a full hearing. If an interim injunction is granted pending final hearing, it is possible that the side which benefits from the injunction will be asked to give an undertaking that if the other side is successful at the final hearing, the party which had the benefit of the interim protection can compensate the other party for its losses. This does not happen where the claimant is legally aided.
                                                2. Decleration
                                                  1. A declaration is a judgment by the Administrative Court which clarifies the respective rights and obligations of the parties to the proceedings, without actually making any order. Unlike the remedies of quashing, prohibiting and mandatory order the court is not telling the parties to do anything in a declaratory judgment. For example, if the court declared that a proposed rule by a local authority was unlawful, a declaration would resolve the legal position of the parties in the proceedings. Subsequently, if the authority were to proceed ignoring the declaration, the applicant who obtained the declaration would not have to comply with the unlawful rule and the quashing, prohibiting and mandatory orders would be available.
                                                  2. Discretion
                                                    1. The discretionary nature of the remedies outlined above means that even if a court finds a public body has acted wrongly, it does not have to grant any remedy. Examples of where discretion will be exercised against an applicant may include where the applicant’s own conduct has been unmeritorious or unreasonable, for example where the applicant has unreasonably delayed in applying for judicial review, where the applicant has not acted in good faith, where a remedy would impede an authority’s ability to deliver fair administration, or where the judge considers that an alternative remedy could have been pursued.
                                                  3. Time Limits
                                                    1. The applicant MUST have exhausted all appeals
                                                      1. Negotiation?
                                                        1. Time Limits can be lifted in extreme cases: Death, extreme illness, etc.
                                                          1. No later than 3 Months after the grounds have arose
                                                          2. LOCUS STANDI: Standing to have involvement in the case
                                                            1. Eg. someones friend would not have Locus stand
                                                              1. Relevant Locus stand would need to be proved
                                                                1. R v Inland Revenue Commissioners
                                                                  1. You have to be directly affected in order to have sanding
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