BCL Law Notes Comparative Public Law Notes
A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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Legitimate Expectation
UK & EU Law
Definition
Something said or done by administration has generated legitimate & hence justified expectation that the C will receive certain benefits (procedural or substantive or both)
Categories of case
Generalised policy – gov seeks to change policy but individual claims legitimate expectation created (contentious)
Niazi [2008] EWCA Civ 755 – Laws LJ shows unwillingness to allow C to base case on ‘category 4’ = shift from one general policy to another
Generalised policy – gov seeks to deviate in particular instance without changing policy
Individualised representation falling short of actual decision
May include policy applicable to more restrictive group
Decision made by public body from which it seeks to resile
Reasons for protection & concerns about doctrine
Rationales
Fairness
Efficiency – trust in government promoted if individuals can rely on policies & unequivocal representations
Equality
Reliance
Concern — Danger of ossifying/stagnating public policy
BUT always open to public body to rely on supervening public interest requiring departure from expectation – evaluate on case by case basis
BUT even if court finds legitimate expectation, judgment is temporally limited & doesn’t fix public policy on that issue for all time
Eg can only be invoked by those that acted in reliance while policy in place
Crucial issues arising in legitimate expectation cases
Is representation/policy sufficiently definitive to give rise to legitimate expectation?
90% of cases fall on basis that no legitimate expectation – but doesn’t follow that courts are being too harsh
If legitimate expectation is established – What test for review should be used when gov seeks to act in contravention of legitimate expectation?
EG assertion of public interest
Coughlan [2001] QB 213
If the test is unreasonableness in the Wednesbury sense, then
Government would basically always win
Would leave no room for substantive review, if review for Wednesbury unreasonableness would yield same result
Except in cases where government simply asserts no reasonable expectation and issue doesn’t arise
Heightened Wednesbury
Proportionality: Nadarajah [2005] EWCA Civ 1363 (no HL authority on the point yet)
Matters particular to UK law
Intra vires determinations
Pre-Coughlan – Courts recognised procedural legitimate expectation but equivocal about recognising substantive legitimate expectation
Richmond – Laws LJ
Hargreaves – substantive legitimate expectations a ‘heresy’
Coughlan [2001] QB 213 – Sedley LJ on legitimate expectations – recognised legitimacy of substantive legitimate expectations
PC says shows ‘malleability’ of CL
Had to distinguish Hargreaves (CoA) & Findley (HL) which both denied existence of the doctrine
Where only expectation that C had was that would be treated fairly in accordance with the rules in place at the time – essentially Wednesbury unreasonableness
= Harbury’s, Findley
Looked to decisions which didn’t use the terminology ‘legitimate expectation’ but could be justified on that basis
Preston (HL); HTB per Denning LJ – where representations by public bodies & court considered that representations were binding
Explained that reason was that representation had created legitimate expectation
Interestingly cf the private law – haven’t adopted Waltons v Maher as founding estoppel as a sword // Aus hasn’t adopted legitimate expectation
No need for reliance in public law legitimate expectation
Post-Coughlan
HL adopted doctrine: Reprotech per Hoffman LJ
Bibi [2002] 1 WLR 237
Begbie [2000] 1 WLR 1115
Nadarajah [2005] EWCA Civ 1363
Niazi [2008] EWCA Civ 755 – Laws LJ shows unwillingness to allow C to base case on ‘category 4’ = shift from one general policy to another
Ultra vires determinations
If representation is ultra vires the public body – under UK law does not create illegitimate expectation
Can be ultra vires as
Action represented ultra vires the public body in general
Representer not authorised to make the representation/do the act promised
Courts more forgiving in this category
PC thinks this is too draconian – should balance public interest with harm to individual
Distinction between intra vires & ultra vires is a flexible one
If court minded to be sympathetic, will treat as intra vires: eg Bibi [2002] 1 WLR 237 (representation was probably ultra vire but treated as intra vires – recognised by CoA to a certain extent – Counsel for the government didn’t take the point)
Matters particular to EU Law
Meaning of concept, types of case & rationales are the same
Questions arising – similar to UK
Is representation/policy sufficiently definitive to give rise to legitimate expectation?
90% of cases fall on basis that no legitimate expectation – if anything EU is tougher
EU gives more weight to ‘prudent trader’ rule – ie if reasonable trader could or should have foreseen changes that would disappoint an expectation, then no actionable legitimate expectation
IE looks to representee (obligation to foresee changes) as well as representer (definitive nature of representation)
EU is primarily an economic organisation – claims primarily brought by traders
If legitimate expectation is established – What test for review should be used when gov seeks to act in contravention of legitimate expectation?
Government can plead public interest rationale & courts can review that rationale: eg milk case in 120/86 Mulder [1988] ECR 2321
Precise test is not clear – looks to be proportionality/balancing test but not explicit
Notable characteristics of Caselaw
Court has not distinguished between procedural & substantive legitimate expectations
CF UK –
significant in intra vires / ultra vires distinction
procedural expectations recognised first, then after much hesitation, substantive legitimate expectations
No such historical difference in ECJ...
Buy the full version of these notes or essay plans and more in our Comparative Public Law Notes.
A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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