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Legitimate Expectation Notes

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Legitimate Expectation Revision

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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

1. Generalised policy - gov seeks to change policy but individual claims legitimate expectation created (contentious) o 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

2. Generalised policy - gov seeks to deviate in particular instance without changing policy

3. Individualised representation falling short of actual decision o May include policy applicable to more restrictive group

4. Decision made by public body from which it seeks to resile Reasons for protection & concerns about doctrine
 Rationales o Fairness o Efficiency - trust in government promoted if individuals can rely on policies & unequivocal representations o Equality o Reliance
 Concern — Danger of ossifying/stagnating public policy o BUT always open to public body to rely on supervening public interest requiring departure from expectation - evaluate on case by case basis o 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?
o 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?
o EG assertion of public interest o 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 o 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 o Richmond - Laws LJ o Hargreaves - substantive legitimate expectations a 'heresy'
 Coughlan [2001] QB 213 - Sedley LJ on legitimate expectations - recognised legitimacy of substantive legitimate expectations o PC says shows 'malleability' of CL o 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 o 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 o 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

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