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THE JUDICIAL REVIEW PROCEDURE
1. Introduction Two questions before public law claim:
1. Is D subject to public law duties to act fair, reasonable, etc?
2. How may they procedurally be enforced?
General answer: judicial Review Procedure CPR, Part 54: judicial and Statutory Review. Thus where claimant wants prerogative remedy he MUST use judicial review, but appears that if claimant seeking one of ordinary remedies, may choose whether JR or by issuing claim in ordinary way.
2. What is the judicial review procedure?
2.1 The origins of today's judicial review procedure
CPR intro 1999 to try to improve how civil litigation is conducted in England and Wales.
Overriding objective - justice.
Today's JR result of reform in '77 and finesse in '81, driving force was practical utility of making all remedies available in a single set of proceedings which was driving force behind reforms, as Law Commission pointed out in 1976: "our basic recommendation is that there should be a form of procedure entitled application for judicial review".
Thus, today possible to seek prerogative and ordinary remedies in the same proceedings.
2.2 The nature of judicial review procedure
Part 54 came into force following Sir Bowman's Review of the Bowman report, which advocated mainly the law com 1994 suggestions (e.g Admin Court)
Two key objectives of Bowman:
* 1) reduce delays
* 2) promote efficient use of judicial resources.
Resolution of factual disputes not something for JR, Bowman at 17.
* E.g in Sher v Chief Constable of Greater Manchester 2010 permission to seek JR denied because claims raised 'potentially complex disputes of fact.
Certainly, disclosure of documents not enhanced by CPR (as Cornford 2005 pointed out). And while true to large extent, in Tweed v Parades Commission for Northern Ireland 2006 we see a more liberal approach
* Lord Brown:"Disclosure orders likely to remain seldom...but I endorse Lord Carswell's view that time has come to do away with rule that there must be a demonstrable contradiction or inconsistency or incompleteness in the respondent's affidavits before disclosure will be ordered. A more flexible and less prescriptive principle should apply "
* "Especially more flexible regarding disclosure in cases involving proportionality "
While no suggestion that new procedural rules generally make it easier to obtain crossexamination, a more liberal approach applies in certain human rights cases. E.g i n R(Wilkinson) v Broadmoor Hospital 2001 mental patient sought JR of decision to treat him forcibly against his will, alleging this breached his rights under art 2,3,and 8 ECHR. Cross exam held appropriate to resolve a dispute of fact. And in R (Al-Sweady) v SSD 2009 Scott Baker LJ said at par 27 'vital for full disclosure to occur' because dealing with grave potential HR violation of torture, and necessary to appraise evidence of witnesses.
Today: Where does this leave us? Today's JR much in common with old JR. And clearly distinct from that which applies to ordinary proceedings. Thus, some claimants try to litigate in ordinary proceedings to get more generous cross exam provisions, and not restricted by narrow time limits, leave, etc.
3. When must the JR procedure be used?
3.1 Procedural exclusivity
Was a time where even courts endorsed tactic or seeking ordinary remedies (eg. Denning LJ in
Barnard v national Dock Labour Board 1953).
However, JR is designed for resolution of disputes concerning discharge by PA of their public functions, and it seems to follow that litigation of such matters should by way of JR. HL in landmark case of O'Reilly v Mackman found this logic compelling.
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