A more recent version of these Legitimate Expectations And Estoppel notes – written by Oxford students – is available here.
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Legitimate expectation and estoppel
Craig, Administrative Law (5th ed., 2003), 639-680:
= Procedural Legitimate Expectation: existence of some process right that the applicant claims to possess as the result of behaviour by the public body that generates the expectation.
= Substantive Legitimate Expectation: situation in which the applicant seeks a particular benefit or commodity, such as a welfare benefit or a licence. Claim to such a benefit will be founded upon governmental action which is said to justify the existence of the relevant expectation.
? Procedural Legitimate Expectations:
1.) Court may decide that the interest, although not presently held, is important enough that an applicant should not be refused it without having some procedural rights ?
courts are, in a sense, protecting future interests.
2.) Where there is a clear & unequivocal representation, a legitimate expectation can be of importance in two types of case: i.) Where the representation provides the foundations for procedural rights, even though in the absence of the representation it is unlikely that the substantive interest would, in itself, entitle the applicant to natural justice or fairness. The interest of the applicant, by itself, would not warrant procedural protection, but it is the conduct of the public body, through its representation, which provides the foundation for the procedural protection.
= AG of HK v. Ng Yuen Shiu: Held: although the rules of natural justice or fairness might not generally be applicable to an alien who had entered the territory illegally, a person could claim some elements of a fair hearing if there was a legitimate expectation of being accorded such a hearing. Such an expectation could arise if, as was the case, the government had announced that illegal immigrants would be interviewed with each case being treated on its merits, albeit being no guarantee that such immigrants would be allowed to remain in the territory. Point = well captured by Elias: 'it was only the legit expectation arising from the assurance given by the Government that enabled the court to intervene on behalf of the illegal immigrant: his status as an illegal immigrant would not of itself have created any entitlement to a hearing.
ii.) Representation that gives rise to the legit expectation may augment the applicant's procedural rights, as shown in:
= R v. Liverpool Corp, ex p. Liverpool Taxi Fleet Operators: Council had pursued a policy of limiting the number of licensed taxis to 300, and the applicants were repeatedly assured that the figure would not be increased without their being consulted. Council increased the number nonetheless. It is unclear whether the court believed that the applicants would have any procedural rights in the absence of the initial council assurances. It is however clear that the content of the applicants' procedural rights were enhanced by the representations. Thus, Lord Denning stated that the council ought not to depart from the undertaking, 'except after the most serious consideration and hearing what the other party has to say and then only if they are satisfied that the overriding public interest requires it.' Roskill LJ: Council would not resile from their undertaking, 'without notice to and representations from the applicants,' and only after 'due and proper consideration of the representations of those interested.'
3.) Closely related to, but distinct from 2.): defendant institution has established criteria for the application of policy in a certain area, an applicant has relied on these criteria, and the defendant then seeks to apply different criteria:
= Khan: Applicant sought to adopt his brother's son from Pakistan. The Home Office, while stating that there was no formal provision for this in the immigration rules, provided a circular stating the criteria used by the Home Sec. The applicant sought entry clearance for the child on the basis of this criteria, but was refused, and the Home Office indicated that different tests had been used. The court found for the applicant. Parker LJ held that while there was no specific undertaking in this case, the principle from Liverpool Taxi was nonetheless applicable. Thus if the Home Sec stipulated certain general entry conditions he should not be allowed to depart from then 'without affording interested persons a hearing and then only if overriding public interest demands it.' A policy could be implemented, but the recipient of the letter which set out the previous policy must be given the opportunity to argue that the 'old' policy be applied to the particular case.
? Substantive Legitimate Expectations:
= Chapter in Craig concentrates on the way in which legal certainty & legit expectations influence the way in which discretion can be exercised.
= Types of Case in Intra Vires Representations:
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