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...
The following is a more accessible plain text extract of the PDF sample above, taken from our Comparative Public Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Standing & Remedies
Major issues
UK
Public <> private divide –
no rigid divide in courts, no rigid divide in substance (eg mostly private law principles applied to determine liability of public bodies)
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
Direct (individuals before EU courts under art 263, can appeal up to ECJ)
Very difficult to get standing
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…
France
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)
Permission –
Must show
arguable case & reasonable chance of success –
standing – if have ‘sufficient interest’: s 31 SCA
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
Full hearing –
Cross-examination and discovery are discretionary
Justification for these restrictions
Protect public bodies & allow them to fulfil their public functions without undue disturbance
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
When parties agree
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)
Procedural matter went all the way to the HL before the substance could be heard
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
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
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
Permission stage
Individuals – generally standing granted unless vexatious
Groups – easier than at full hearing – very rare not to get standing –
cf Al Haq (not granted standing – justiciability issue as well – Palestinian interest group challenged UK decision to give money to Israel – only challenge open was a constitutional one – from that point of view the only sufficient interest would be of a UK citizen no standing)
Full hearing
Individuals – where indirectly affected by decision –
R. v. IRC, ex parte National Federation of Self-Employed (Fleet Street Casuals Case) [1982] AC 617 (freelance journalists signing off with pseudonym to avoid tax – IRC reached tax settlement with journalists – Federation miffed because their honest members were paying tax – challenged validity of settlement ‘fusion’ approach to standing – consider likelihood of action being brought/being successful)
Bollinger (?) decision (victims’ family seeking JR of sentence of offender – teenagers killing toddler – perceived mandatory life sentence too harsh – sought JR no standing)
Groups – inconsistently dealt with
Link to individuals
“associational” standing – bringing challenge on behalf of some of its members
“representative”/”surrogate” standing – group bringing challenge on behalf of others – because group better placed
generic public interest claims
More likely to get standing where group closely linked to interested individuals
R. v. Inspectorate of Pollution, ex parte Greenpeace (No.2) [1994] 4 All ER 329 – members of Greenpeace lived in affected area
Child Poverty Action Group Case – representing people that are otherwise unlikely to have interests represented in courts
Or if have statutory responsibility
Eg Human Rights Commission, statutory body for protection of animals
OR if a responsible & recognised group – if longstanding group, consulted by government, etc
Groups...
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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