Someone recently bought our

students are currently browsing our notes.

X

Restriction On Remedies Problem Question Notes Notes

Law Notes > Administrative Law Notes

This is an extract of our Restriction On Remedies Problem Question Notes document, which we sell as part of our Administrative Law Notes collection written by the top tier of Oxford students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Administrative Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Restriction on Remedies
Procedural Requirements
There are two stages of judicial involvement: the "permission" stage and the "substantive"
stage.
CPR 54.4: "The court's permission to proceed is required in a claim for judicial review".
Permission: Pre-Action Protocol for Judicial Review
An applicant for judicial review should send a "letter before claim" in "good time" to the defendant before making a formal application; the purpose of which is to identify issues in dispute and establish whether they can be narrowed or if litigation can be avoided (para 14).
NB. The protocol is not binding, merely sets out a code of good practice parties should generally follow (para 2).
However, "the court will normally expect all parties to have complied with it in good time before proceedings are issued and will take into account compliance or non-compliance when giving directions for case management of proceedings or when making orders for costs" (para 7).
A complete failure by the claimant to comply with the pre-action protocol will likely warrant peremptory refusal of permission for judicial review: R(S) v Hampshire CC. On the facts,
besides this failure, claimant also made no attempt whatsoever to seek to avoid litigation.
Held, no permission.
However, "This protocol will not be appropriate in very urgent cases. In this sort of case, a claim should be made immediately. Examples are where directions have been set for the claimant's removal from the UK or where there is an urgent need for an interim order to compel a public body to act where it has unlawfully refused to do so, such as where a local housing authority fails to secure interim accommodation for a homeless claimant" (para 6).
Permission: Is the case arguable?
At the permission stage, courts ask if the case is arguable. Sharma v Brown-Antoine: (1)
"[T]he court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy." (2) "[B]ut arguability cannot be judged without reference to the nature and gravity of the issue to be argued. It is a test which is flexible in its application… It is not enough that a case is potentially arguable."
Time limits

PQ trick
The (imaginary) Industrial Hazards Act 2015 provides that the Secretary of State may designate as a Hazardous Business any business that 'is involved in the carrying out of an extremely hazardous industrial process'. It is an offence for a Hazardous Business to undertake any industrial process without a licence issued by the Secretary of State. There is a right of appeal to a tribunal (which is presently inundated with cases) against designation and licensing decisions taken under the Act.
Time limit to make an application for judicial review - by the time the tribunal comes around to hearing his case, 3 months may have passed.
s 31(6), SCA 1981: "Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant - (a) leave for the making of the application; or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration."
CPR Rule 54.5(1): "The claim form must be filed - (a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim arose."
CPR Rule 3.1(2): "Except where these Rules provide otherwise, the court may - (a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired)."
The discretion in CPR Rule 3.1(2) to extend time only arises where there is good reason to do so, but even then, the court may still refuse leave if in its opinion the granting of the relief would likely cause hardship or prejudice or be detrimental to good administration (as specified in s 31(6) SCA 1981): R v Dairy Produce Quota Tribunal for England and Wales,
ex p Caswell.
These provisions should not be applied technically; as long as no prejudice is caused, the courts will not rely on these provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled: Maharaj v National Energy
Corporation of Trinidad and Tobago [2019] UKPC 5.
Stage 1: Undue delay
"The grounds to make the claim first arose"
CPR Rule 54.5(1): "The claim form must be filed - (a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim arose."
R v SS for Trade and Industry, ex p Greenpeace Ltd: The grounds to make the claim refer to the substantive act or decision which is the real basis of the claimant's complaint. If,
after that act has been done, he takes no steps but merely waits until something consequential and dependent upon it takes place and then challenges that, he runs the risk of being put out of court for being too late.
In PQs, what this is depends on the facts.
R (Burkett) v Hammersmith and Fulham LBC: the council first resolved to refer building application to SS and to grant planning permission. Thereafter, it actually granted planning permission, which B challenged. Held: clock began running from grant of planning permission, rather than from the resolution. The latter had no legal effect; if developers commenced works only on the basis of it they do so at their own risk.
Cf R (Nash) v Barnet LBC: N challenged decisions to award contracts following competitive dialogue procedures under Public Contracts Regulations 2006. Held: clock began running when council began formal public procurement procedure, not afterwards when contracts were awarded. The commencement of procurement procedures was not a provisional or contingent decision to enter into outsourcing contracts, but an actual decision to enter into a procurement process, which proceeded in stages. The procurement procedures took work and money; they had legal effect. This is so even though there was no guarantee that any outsourcing contract(s) might ultimately result. Burkett was distinguished.
So, in Burkett, the resolution was preliminary and provisional. In Nash, the procurement procedure was part of a larger process and had legal effect.
"Promptly" AND "In any event not later than 3 months after"
These are cumulative requirements: Hardy v Pembrokeshire CC.
R (Burkett) v Hammersmith and Fulham LBC: A claim "made well within the three month period" may be ruled out of time on the ground of lack of promptitude if it "would cause immense practical difficulties".
What practical difficulties? For e.g.,
 R v Rochdale Metropolitan Borough Council, ex parte Butterworth: A challenge to an allocation of school places was held not to have been brought in a timely manner because it should have been brought before the beginning of the school year. (PQs:
this is exceptional)
 Finn-Kelcey v Milton Keynes Borough Council: Permission to seek judicial review of a grant of planning permission was denied notwithstanding that it had been brought
(just) within three months. The need for particular promptness in such cases arose because once permission has been granted, the developer is entitled to start work immediately; the need for certainty is therefore particularly compelling. (PQs: this is exceptional).
Even if claim is not filled in promptly, court may overlook this if claimant has good reasons.
In R (MacRae) v Herefordshire DC: claimant met 3 month time-limit; there was delay because the defendant council had given inadequate reasons for its decision, so that it had been reasonable for the claimant to take time to seek clarification of those decisions before launching proceedings. Court did not deny permission.
Uniplex v NHS Business Service Authority: in cases concerning EU law, courts will ignore the 'promptness' requirement; they will have to grant permission whenever a claim is brought within 3 months. Stage 2: Extension of time
CPR Rule 3.1(2): "Except where these Rules provide otherwise, the court may - (a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired)."
Re S: Time can be extended where good reasons exist to extend the period for applying for relief, but the burden of persuasion placed on applicants is rather high and the courts should adopt a "firm approach".
R (M) v The School Organisation Committee, Oxfordshire County Council: An exception can be made in cases of public importance.
R (M) v The School Organisation Committee, Oxfordshire County Council: More generally,
where there is good reason for the delay, time may be extended.
R v Rochdale Metropolitan Borough Council, ex p Cromer Ring Mill Ltd: Time may be extended for delays caused by exhausting rights of appeal.
R v Stratford-upon-Avon District Council, ex p Jackson: Time may be extended for delays caused by obtaining legal aid.
R (Tofik) v Immigration Appeal Tribunal: Depending on the context, time may be extended for delays caused by a change of legal advisor.
R (007 Stratford Taxis Ltd) v Stratford-on-Avon District Council: All relevant factors have to be considered and weighed in making decisions over time extensions, including the length of the delay.
R (M) v The School Organisation Committee, Oxfordshire County Council: The court's attitude to extending time is influenced by the context. On the facts, no extension was appropriate in respect of a challenge to a school reorganisation programme, bearing in mind that "prolonged uncertainty is damaging to teachers, to pupils, to parents and to all the schools affected".
However, recall that s. 31(6) of Senior Courts Act 1981 provides that permission (or ultimately relief) may be refused where it would be "likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration" to grant a remedy. Detrimental reliance by third parties, for instance, will count against extending time: R (Gavin) v London Borough of Hackney [2003] EWHC 2591
(Admin)
Stage 3: Refusal of permission s 31(6), SCA 1981: "Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant - (a) leave for the making of the application; or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration."
R (Gerber) v Wiltshire Council: (1) "Even where there might be substantial hardship or prejudice to a person other than the claimant or detriment to good administration, the court has a discretion whether to refuse relief. This requires the court to make an overall evaluative assessment having regard to what, depending on the circumstances, may be a range of relevant considerations, including the extent of the substantial hardship or prejudice likely to be suffered by such other person…if relief is granted as compared with the hardship or prejudice to rights which would be suffered by the claimant…if relief is refused and the extent of the detriment to good administration if relief is granted as compared with the detriment to good administration through letting public law wrongs go without redress if relief is refused." (2) Many of the factors that go to whether a court will extend a time limit will also be relevant to determinations as to relief where the claimant has not acted promptly or in compliance with time limits.
Hardship to individuals and detriment to their rights
R (North West Leicestershire District Council, ex p Moses): Hardship to individuals and detriment to their rights is particularly likely if late challenges to planning decisions are permitted. On the facts, permission was denied to seek judicial review of planning permission in respect of runway extensions at an airport some years after planning consent had been granted. The court had no difficulty in concluding that this would cause substantial hardship to third parties, not least the airport which had incurred construction costs approaching £70m.
Detriment to good administration

Buy the full version of these notes or essay plans and more in our Administrative Law Notes.

More Administrative Law Samples