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Judicial Review Illegality Notes

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A more recent version of these Judicial Review Illegality notes – written by Cambridge/Bpp/College Of Law students – is available here.

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Con & Ad: Judicial Review - Illegality
- Definition: JR is the mechanism whereby courts able to scrutinise decision-making processes and legality of actions taken by public authorities

Preliminary Issues

1. Amenability to Judicial Review?: only public law decisions made by public body amenable to JR (CPR Pt 54.1).
- 2-part test - R v Panel for Takeover and Mergers ex p Datafin, [Lloyd LJ]:

1. source of power?: if statute/subordinated legislation ? public body.

2. public law function?: substitutability test - would govt. have to set body up if didn't exist?
- application: regulatory agencies ? PB (R v ASA ex p Insurance Services; R v Bar Council ex p Percival). sporting bodies ? not PB (R v FA ex p Football League; R v Jockey Club ex p Aga Khan). religious bodies ? not PB (R v Chief Rabbi ex p Wachmann). contracting out: dep. on degree of statutory penetration / special powers. R v Servite Houses ex p Goldsmith: elderly residential home ? not public function (just contract). R (A) v Partnerships in Care: LA + private home regulated by statute ? public function. YL v Birmingham CC: private care home ? not public function.
- overlap with HRA 1998 public authority - Aston Cantlow, [Ld Hope]: overlap between 2 tests.

2. Procedural Exclusivity?: is claim abuse of process? (JR: stricter procedures than civil action).
- general rule: public law decision ? only JR may be used (O'Reilly v Mackman: Irish prisoner).

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