Jr Notes

JR

• = review of manner in which decision made i.e. process corrupted (NOT error of law and / or fact)

• applications brought in admin court (AC) office of QBD (HC)

PARTIES AGAINST WHOM JR LIES

• crown only a nominal party

• JR lies against

  • public + quasi public bodies

  • inferior courts: mags'; coco (rare, usually appeal); election courts; coroners courts

  • upper tribunal

• applications for JR of decision of upper tribunal

  • if upper tribunal refuses permission to appeal decision of first-tier tribunal

    • must bring claim within 16 days of notice to refuse permission to appeal (r54.7A(3))

LOCUS STANDI

• C must have "a sufficient interest in the matter to which the application relates"

  • direct / personal interest

  • ? general interest (pressure groups etc,) - depends on relationship between C + complainant; extent of C's interest; relief sought (less likely to be held to have standing if mandatory order)

PUBLIC LAW

Decision susceptible to JR

• = decision OR refusal by R to make decision

• decision must affect another person by altering private law rights OR depriving other person of benefit

• C CANNOT manufacture a 'decision' by engaging in correspondence with targeted R

Issues of public law

• general rule

  • = abuse of process to bring ordinary claim (i.e. NOT to bring JR action) when public law rights infringed claim will be struck out

• exceptions

1. public law decision is collateral issue in private law claim

2. claim involving challenge to public law decision dominated by consideration of C's private law rights

3. no party objects to matter being brought by ordinary claim

4. claim framed in tort, without raising live public law issue

5. validity of public law decision raised as a defence

GROUNDS

• procedural impropriety

• Wednesbury unreasonableness

• legitimate expectation (to benefit / right notice + reasons for withdrawal)

• illegality

• (apparent / actual) bias

• natural justice (know case against, no-one judge in own case, right to be heard)

REMEDIES IN JR

• can claim following in alternative OR in addition to one another:

1. quashing order

   • reverses decision; AND

     1. remits matter with direction to of inferior court, tribunal, PA to reach decision consistent with AC's finding; OR

     2. substitutes its own decision.

   • if judgment subject to an appeal

     • + permission sought for quashing order AC may adjourn application until appeal determined

     • + permission granted for quashing order AC may stay proceedings to which JR claim relates (r54.10(2))

2. mandatory order

   • requires inferior court, tribunal, PA to carry out duties

   • appropriate for wrongful INaction

   • disobedience = contempt of court

3. prohibitory order

   • restrains inferior court, tribunal, PA from acting outside jurisdiction

   • N.B. cf quashing order, but to prevent wrong decision being taken in first place

4. declaration

   • decision of court on real Q of law OR rights, between parties with real interest in getting it resolved

   • discretionary

   • can be granted against Crown

5. injunction

   • regulate future relationship between parties; OR

   • special type: injunction restraining a person from acting illegally in public office (s30 SCA 1981) (r54.2)

   • granted if just + convenient

   • interim injunction can be granted in pending JR proceedings

   • can be granted against Crown only to protect EU law rights

6. money awards (damages)

   • only recoverable in conjunction with other JR remedy - NOT freestanding (r54.3(2))

   • money awarded if could've been in ordinary proceedings

When JR procedure must / may be used

• must be used if seeking:

1. mandatory order

2. prohibiting order

3. quashing order

4. injunction restraining a person from acting in office in which he is NOT entitled to act (i.e. acting unlawfully) (s30 SCA 1981) (r54.2)

5. any of above AND injunction / declaration (r54.3(1))

• may be used if seeking:

1. declaration

2. injunction (r54.3(1))

JR PRE-ACTION PROTOCOL

• should follow unless D has no legal power to change decision OR application urgent

• procedure

1. letter of claim

1. ID issues

2. seek to establish if litigation can be avoided

2. D's reply

1. usually within 14 days

2. if can't comply with time limit, send interim reply proposing extension

3. contents

   1. whether application conceded in full / part OR disputed

   2. if appropriate new decision OR fuller reasons OR address points of dispute

   3. enclose documents requested by C OR explain why NOT provided

STAGE 1: PERMISSION STAGE

• permission always required (r54.4)

• = filter for frivolous applications

• if error in paperwork, court may allow amendment (emphasis on substance NOT form)

Time limit for filing claim form

• time limit

  • promptly + in any event within 3 months of judgment, order or conviction (r54.5(1), PD 54A para 4.1)

  • decision of SoS OR LA planning decision = 6 weeks (r54.4(5))

• extension of time limit

  • CANNOT be extended by agreement (r54.5(2))

  • court may extend if good reason, applying OO (r3.1(2)(a))

• the promptness requirement - delay

  • court may refuse application (filed within 3-month limit) if NOT prompt if granting relief would:

1. be likely to cause substantial hardship to OR prejudice rights of any person (including general public); OR

2. would be detrimental to good admin, including effect on other potential applicants (SCA s31(6))

   • (promptness probably does NOT apply to EU directive rights)

Issuing JR claim form N.B. = part 8 claim

• JR claim form must state:

1. name + address of:

   1. any person C considers to be 'interested' (re: PA)

2. all parties to proceedings (re: court, tribunal) (PD 54 para 5.1)

3. that C is requesting permission for JR

4. any remedy claimed AND any relief sought under HRA (PD 16 para 15.1(2))

5. HRA issues / remedies: details of ECHR right infringed + details of infringement

6. HRA declaration of incompatibility: details of legislative provision + incompatibility

7. HRA claim founded on finding of unlawfulness by other court / tribunal: details of finding; +

8. HRA claim founded on judicial act infringing ECHR right: details of act + lower court / tribunal

(r54.6, PD 16 para 15, PD 54A)

• JR claim form must include OR...

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