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Legitimate Expectation Notes

BCL Law Notes > Comparative Public Law Notes

This is an extract of our Legitimate Expectation document, which we sell as part of our Comparative Public Law Notes collection written by the top tier of Oxford students.

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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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