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Standing Remedies Notes

BCL Law Notes > Comparative Public Law Notes

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Standing & Remedies Major issues UK
? Public <> private divide - o no rigid divide in courts, no rigid divide in substance (eg mostly private law principles applied to determine liability of public bodies) o BUT distinct procedures and remedies for public law
? Standing not a major issue, but remedies & procedures are controversial EU?

Standing a major problem (extremely narrow), but remedies & procedures are fairly well accepted o Direct (individuals before EU courts under art 263, can appeal up to ECJ)
? Very difficult to get standing o indirect challenges (initiated in national courts - but national courts cannot rule on validity - makes reference under art 267 to ECJ)
? Query whether this form of access compensates for difficulties in direct challenges But can't just transplant UK standing laws - different context...

? Rigid divide between public & private law - different courts & distinct law - tribunal de conflit determines UK law Remedies
? Certiorari (renders void ab initio), mandamus (show duty on part of public body), prohibition - exclusive to public law
? Declarations, injunctions, habeas corpus, damages
? All remedies discretionary Procedure
? Section 31 of Senior Courts Act; CPR 54
? 2-stage process (unlike EU where direct access) o Permission -
? Must show
? arguable case & reasonable chance of success -
? standing - if have 'sufficient interest': s 31 SCA o relaxed standard re individuals, essentially applied only to remove vexatious litigants
? within 3 month time-limit - generally strictly applied
? appears to dispense with about 40% of cases o Full hearing -
? Cross-examination and discovery are discretionary


Justification for these restrictions o Protect public bodies & allow them to fulfil their public functions without undue disturbance o Apart from standing, no restriction in law on who could sue - unlike contract, etc, where only party to contract could sue

Principle of exclusivity - connection between process & remedies
? On move away from prerogative writs - principle of procedural exclusivity required all public law claims to go through that route: O'Reilly v. Mackman
[1983] 2 AC 237
? Exceptions o When parties agree o Collateral attack - opting out of s 31 (where cause of action has public law element, can opt out but can't get public law remedies) - particularly attractive in light of time limits
? Where action primarily private law - eg contract claim against public body = primarily private
? Roy v. Kensington & Chelsea FPC [1992] 1 AC 624 (dispute about Doctors' contracts ? primarily private law - can opt out of s 31 procedure)
? Where raised as a defence - procedural protection is to prevent abuse of process - if public law matters are being raised as defence, cannot be abuse of process
? Boddington v. British Transport Police [1999] 2 AC 143 (by-law preventing smoking in certain carriages of train
- passenger fined for smoking - challenged validity of by-law in defence ? raised in defence so could opt out //
but by-law turned out to be valid so defence was ineffective) o Procedural matter went all the way to the HL before the substance could be heard o Various other exceptions developed - shifting to abuse of process analysis - ie unless abuse of process, then special procedure protections for public bodies not necessary - see Clark v. University of Lincolnshire & Humberside [2000] 1 WLR 1988
? Created difficult rules & exceptions about public<>private divide Standing
? Standing - if have 'sufficient interest': s 31 SCA
? Permission stage <> full hearing | individuals <> groups o Permission stage - low standard used to eliminate vexatious litigants
? Rationale - allows JR to expose questionable activity & for JR to be used as political platform without necessarily allowing to go to full hearing
? BUT doesn't seem like an argument for lenient standing o Can also arise at full hearing: R. v. IRC, ex parte National Federation of Self-Employed [1982] AC 617
? May raise whether the best-placed litigant

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