Standing Notes

Extent of the rules derives from red/green light model

1. redeveryone should be a policeman = wide standing rules

2. greenombudsman/AG should make decisions

Law normally starts from position that remedies are correlative to rights, so that only those w/rights are eligible for award of remedies. In private law, this can apply w/strictness but in public law it would be to ignore the dimension of public interest/

s31(3) Senior Courts Act -only those w/sufficient interest can bring JR standing can be considered @ permission & substantive stages

Rationale

• Schiemann - where courts prevent a party from enforcing the law, the law is regarding it as preferable for an illegality to continue than for an excluded person to have access to the courts

• 2 opposing models

1. Open System

• Would be a grave lacuna in the law if pressure group couldn’t vindicate the rule of law (Diplock in Fleet Street Casuals)

• Desirable that admins are called to account

• Will bring about great deal of care

• Some rights are so collective or diffuse that no individual has sufficient interest to vindicate

2. Closed System

• Being sued is a distraction from business of government

• Making administrator focus less on quality of decision & more on making it judge-proof

• Financial costs of litigation borne by public purse

• Delays: building of Royal Opera house was held up by 1 year on basis of ineffective JR challenge

Pre-1978 Law

• Lack of consistency different remedies attracted different tests (even some different approaches being used in case law for the same remedy!)

1. Injunction – any person whose own legal rights are under threat from public authority can seek injunction. If a public right is under threat, C may seek it in 2 cases:

1. interference w/ public law right is such that some private right of P is interfered w/ at the same time

2. C suffers special damage peculiar to himself from interference w/public right

2. Declaration – C for declaration doesn’t have to have subsisting cause of action or a right to some other relief but some legal right of his own must be at issue, actually or contingently

3. Quashing Order (Certiorari) & Prohibiting Order (Mandamus) – prerogative remedies

• Craig: to describe it as unnecessarily confused would be to pay it a compliment

Post 1978 Law

• Only C w/sufficient interest in the matter will have standing Ord. 53 (Pt 54 CPR) & s31(3) Senior Courts Act 1981 “threshold question” (determined @ permission stage) C won’t be allowed to proceed if he has no interest at all or no sufficient interest (prevents busybodies, cranks & mischief makers) = 2 stage process post IRC:

1. Permission – turn away hopeless/meddlesome apps

2. Whether C can show sufficient case on merits, judging in relation to his own concern w/it

• Law Commission: should have a two track system where standing would be refused unless C has been or will be adversely affected & court considers it’s in public interest for application to be made (1994)

• “In the matter” – standing is related to the facts rather than particular remedy sought so that uniform test should apply to all apps. Denning - rule lays down one simple test & gives standing to ordinary citizen who comes asking that the law be declared & enforced.

• Wade & Forsyth: novel aspect of stage 2 is that it doesn’t appear to be a test of standing but rather one of merits. The essence of standing as a distinct concept is that C w/good case on merits may have insufficient interest to be allowed to pursue it. HL’s new criterion would seem virtually to abolish requirement of standing in this sense. So it’s now seldom a determining issue. If merits are weak, cae fails w/out consideration of standing; if strong, denial or relief for lack of standing is unlikely.

• Any party w/genuine interest has standing, incl. public spirited citizens, not “mere busybodies” (Lord Diplock)

• IRC, ex p National Federation of Self-Employed[1982]– Inland Revenue made a deal w/unions, workers, employers whereby if casuals (worked on Fleet St under fake names; paid no taxe) would fill in tax return forms for pasr 2 years the period up to that would be forgotten. Nat. Fed. argued this was UV. Held it had no standing - taxpayer’s interest alone not sufficient.

Diplock: permission stage is used to exclude claims made by “busybodiesw/misguided or trivial complaints” & to allow PAs to safely proceed w/effecting their decision. It wouldbe grave lacuna in our system of public law if a pressure group or even a single public-spirited taxpayer were prevented by outdated technical rules of locus standi from bringing the matter to attn of court to vindicate the rule of law & get the unlawful conduct stopped.”

Fraser: correct approach = look at the statute under which duty arises and see whether it gives any express/ implied right to persons in the position of the applicant to complain of the alleged unlawful act or omission.” Wrong to treat standing as preliminary issue, independent of merits question of sufficient interest can’t in such case be considered in abstract but must be taken w/legal & factual context. If it had been shown IR acted on improper purpose or committed sufficiently serious breach of duty, C would have succeeded.

• Craig: underlying philosophy was to eschew historical distinction b/w remedies & take it as the touchstone for the more liberal rules for prerogative relief to which standing & injunctions were assimilated.

• Fusion of standing & merits (Craig) – Lordships agreed standing & merits couldn’t always be separated & it may be necessary in harder cases to consider the whole of legal & factual context. ‘Merits’ included nature of relevant power of duty, alleged breach, subject matter of claim = fusion is the process by which court determines standing. This means it will vary from area to area. App of these criteria may be unclear & uncertain – here standing may determine on judge’s conception of the role which individuals...

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