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Standing ('sufficient interest')
A claimant for judicial review must have a 'sufficient interest' in the subject-matter. The range of litigants who should be deemed to have a 'sufficient interest' poses important questions about the constitutional role of judicial review: does it exist to vindicate the 'public interest', or merely to enforce private claims?
* Craig, Administrative Law (5th ed., 2003), ch.21:
= In the 70s, common law was unnecessarily confused ? general trend was towards the liberalisation of standing (particularly in the context of prerogative orders) but a stricter test for injunctions & declarations remained.
= Law Commission recommended that any person adversely affected by a decision should have locus standi ? test was adopted in Ord. 53 r.3(7) which has now been incorporated in the Supreme Court Act 1981, s.31(3): 'no application for JR 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.'
= Procedures for JR are now governed by Pt 54 of the Civil Procedure rules, CPR, but the test for standing continues to be governed by the 1981 Act, s.31(3).
= R v. IRC ex p. National Federation of the Self-Employed (1982) First important decision on the sufficiency of interest test ? casual labour was common on Fleet Street newspapers, with the workers often adopting fictitious names
& paying no taxes. The Inland Revenue (IRC), made a deal with the relevant unions, workers & employers whereby if the casuals filled in tax returns for the previous two years then the period prior to that would be forgotten. The National Federation argued that this bargain was ultra vires the IRC & sought a declaration plus mandamus to compel the IRC to collect the back taxes. IRC argued that NF had no standing. HL found for the IRC, but would be misleading to say that they upheld the entirety of the claim:
= Case was complex because two matters were interwoven: whether there should be a uniform test for the prerogative orders & whether there should be a uniform test for all remedies. Lord Diplock: yes to both, Lord Fraser: differences had been eradicated, but not all old case law should be overlooked, Lord Scarman: no difference in standing between prerogative orders & that the same test should apply when a declaration or injunction was sought in a public law context, Lord Roskill: clear that many of the old technical distinctions should be swept away & inference of a uniform test, but not made expressly clear & Lord Wilberforce thought that there should be a distinction even between the prerogative orders, with certiorari being subject to a less strict test than mandamus.
= General thrust = standing should be developed to meet new problems & that there should not be an endless discussion of previous authority ? furthered the tendency towards a unified conception of standing based on sufficiency of interest, notwithstanding some ambiguity in some of the judgements. Should however be recognised that even when the courts adopt a uniform test this does not mean that individual judges share the same view as to what should count as a sufficient interest.
- In private law the merits & standing were not generally regarded as distinct ?
who could sue was answered by the definition of the cause of action. Conversely, in pubic law, standing was one matter & merits the other ? revised to some extent in light of IRC.
- Lordships agreed that standing & merits could not always be separated in this way
? in more complex cases, it would be necessary to consider the whole legal &
factual context to determine whether the applicant possessed a sufficient interest.
- 'Merits' here means the courts would have to look towards the substance of the allegation to determine whether the applicant had standing, including the nature of the relevant power or duty, the alleged breach & the subject-matter of the breach.
- Necessary to understand that s.31(3) requires the court to consider sufficiency of interest at the leave stage. Prior to CPR reforms, this would often just be ex parte
& thus the court might only have evidence from one side & might feel at this stage that the applicant demonstrated a sufficient interest.
- BUT the 2nd stage is the hearing itself, where the court considers evidence from both parties & might take the view that, on consideration of fuller evidence, the applicant didn't possess the interest claimed. Conclusion will be reached from an appraisal of the nature of the duty cast on the public body, the nature of the breach
& the position of the applicants.
- Thus, in IRC the only evidence at the ex. p stage was from the NF, but by the time of the hearing the IRC had prepared affidavits giving its view of the case, causing the HL to dismiss the case.
- Lordships reached the same conclusion on different basis ? Wilberforce, Fraser
& Roskill relied most heavily on statutory framework & background to come to the conclusion that A had no sufficient interest but others placed more emphasis on the absence of illegality.
1.) General message from IRC = would be a unified test of standing based upon sufficiency interest, which would probably operate in the same way irrespective of the particular remedy sought ? test is uniform in this sense.
2.) Relationship between standing at leave stage & the substantive hearing summarised by Lord Donaldson MR in Argyll: at the leave stage an application should only be refused if A has no interest whatsoever & is a 'mere meddlesome busybody.' But where the application appears to be arguable & there is no discretionary bar such as dilatoriness, A should be given leave & standing can then be reconsidered as a matter of discretion at the substantive hearing o strength of
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