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Availability Of Claims For Judicial Review And The Distinction Between Public Law And Private Law Notes

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6. Availability of claims for judicial review and of actions, and the distinction between public law and private law An application for judicial review may only be brought against a body exercising public or governmental functions. And in O'Reilly v. Mackman, Lord Diplock held that it is an abuse of process to assert rights protected by public law in an action (that 'exclusivity rule' has now been much diluted). So courts need to distinguish claims as public or private for procedural purposes. Note that similar questions also arise about the range of bodies against which actions may be brought under the Human Rights Act 1998 (see 'Definition of a public authority' in Topic 1 of the core reading list). Beatson, Matthews and Elliots; Administrative Law:Knowing whether something is a matter of public or private law is important because it will determine whether D has to comply with public law duties of natural justice etc.Also the new rules of procedure, introduced in 2000, say that if an individual wishes to claim that D has breached a public law principle, he must use the JR procedure. The new rules sought to remedy many of the problems of the old civil procedure for JR which prevented justice being done, opting instead to try and use ordinary actions. For example, under the old JR procedure it was v difficult to get the court to allow Ps to cross examine witnesses and the courts were generally unwilling to allow sworn affidavits to be challenged.The new rules also created the administrative court and PAs are under a duty to 'assist the court with full and accurate explanations of all the facts relevant to the issue the court must decide. This should help overcome some of the procedural defects of traditional JR. Also where HRA is invoked the courts are more willing to allow cross-examination- As in R (Wilkinson) v Broadmoor Hospital
[2002]EWHC 250.There was a time when the courts actively encouraged people to seek ordinary claims and evade JR so as to avoid the procedural problems. Hence in Barnard v National Dock Labour Board Lord Denning made this point and said that because of the limitations on applying JR remedies ordinary claims were preferable. However there are problems with this view: The reason for having a distinct JR procedure is based on policy concerns e.g. to prevent litigation from hampering a PA's effectiveness.The public-private distinction remains. The effect of Clark is simply that decisions on whether the correct procedure has been followed will depend on the substantive values in play and whether there has been an actual abuse of process is to be welcomed.
* Civil Procedure (Amendment) Rules 2000 (S.I. 2000 No. 2092), Rule 54 Part 24: The courts can give summary judgment if they think the claim is hopeless Part 1: Overriding principles: Cases should be dealt with by, so far as possible, (a) ensuring that the parties are on an equal footing; (b) saving expense; (c) dealing with the case in ways which are proportionate: (i) to the amount of money involved, (ii) to the importance of the case,

(iii) to the complexity of the issues, and (iv) to the financial position of each party; (d) ensuring that it is dealt with expeditiously and fairly; (e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases. NB part 1.1(2)(d) and 1.1(3): The parties are required to help out the court in furthering the "overriding principles" Key Changes: a judicial review may now be decided without a hearing if the parties agree (r

54.18) and the court may, subject to any statutory provision to the contrary, take a decision itself rather than remit it to the original decision-maker (r 54.19(3)). Exclusivity rule (see cases below): Judicial review is brought within existing civil procedure and that a "claim for judicial review", as it is now called (r 54.1(2)(a)), is to be assimilated to other proceedings "unlikely to involve a substantial dispute of fact" (r 8.1(2)(a)). Thus the permission stage is retained, albeit in altered form. And as before, a claim must be commenced promptly and, in any event, not later than 3 months after the grounds to make the claim arose (r 54.5). The time limit provisions are, in fact, somewhat stricter than the old Order 53 because they provide that the time limit may not be extended by agreement between the parties (r 54.5(2)). To prevent abuse of process, where there was excessive delay, the court could take this into account in deciding whether there was an abuse of process which made it appropriate to strike the claim out. Equally, delay would be relevant in deciding whether to give summary judgment. Remedies: Mandatory, prohibiting and quashing orders can only be sought via JR proceedings. Injunctions can be sought as detailed in SCA. Damages can be claimed as part of the overall remedy, but not exclusively.
* Supreme Court Act 1981, s.31: S.31(1): An application for a mandatory order, prohibitory order, quashing order and, in some cases injunctions are to be dealt with in accordance with the rules on judicial review. s.31(2): Whether an injunction is granted in a case where judicial review is sought depends on the nature of the matters, the nature of the bodies against whom the remedy is sought, and all circumstances of the case. Tasking these into account, the court must decide whether to grant the injunction, depending on whether "it would be just and convenient for the declaration to be made or the injunction to be granted, as the case may be." S.31(3) "No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates." S.31(4): the High Court may award to the applicant damages, restitution or the recovery of a sum due if- (a) the application includes a claim for such an award arising from any matter to which the application relates; and (b) the court is satisfied that such an award would have been made if the claim had been made in an action begun by the applicant at the time of making the application. S.31(5): If the court quashes the decision it may remit the matter to DM OR substitute its own decision for the decision in question. However a decision can only be substituted where the original decision was made by a court or tribunal, it has been quashed because

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