This is an extract of our Jr Procedure document, which we sell as part of our Tort Law Notes collection written by the top tier of Oxford students.
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JUDICIAL REVIEW PROCEEDURE 1 If an individual wishes to sue a public body for breach of contract, he may do so in the ordinary way (i.e. there are no special rules here). The same is true if the individual wishes to issue a claim in tort. However, as against such private law claims, if an individual wants to claim in public law then two questions arise:
1. Is the defendant actually subject to the public law duties to act reasonably / fairly etc.?
2. Second, if the prospective defendant is subject to these public law duties, how, procedurally, may they be enforced?
NB: the general principle is that public law matters should be litigated bot by issuing a claim in the ordinary way, but through a special 'judicial review procedure'. Beatson: suggests 5 basic justifications for the existence of a specialist JR procedure. (i) the desire to create a specialist administrative law court; (ii) a desire to match procedure to the type of issue; (iii) to protect public authorities from harassment by unmeritorious or untimely claims (iv)to underline the limited scope of judicial review; (v) to deal with locus standi. NB: However none of these except (iii) necessarily involves the distinction between public and private law. Even regarding (iii) it could be argued that some private decisions, for example those of bodies such as the Jockey Club, deserve equivalent protection.);
ORDER 54 PROCEDURE The origins of today's judicial review procedure The CPRs were introduced, beginning in 1999, in an attempt to improve the way in which civil litigation is conducted in England and Wales. Their overriding objective is to enable the courts to deal with cases 'justly'. Today's JR procedure shares much in common with its predecessor, which came into being as a result of reforms introduced in 1977 and finessed in 1981. Prior to these reforms, prerogative (i.e. the remedies listed in s.52(2) above) and ordinary remedies (remedies listed in s.54(3)) were unavailable in the same proceedings and it was the obvious practical utility of making all remedies available in a single set of proceedings which was the driving force behind the reforms, this is illustrated by the following: Law Commission No. 73, Remedies in Administrative Law, 1976:
? Cite the Frank's Commission to demonstrate the unsatisfactory nature of the old law ---
Franks noted that there were two sets of remedies against administrative abuse of power
?which, "overlap but do not coincide, which must be sought in wholly distinct forms of proceedings, which are overlaid with technicalities and fine distinctions, but which would conjointly cover a very substantial area of the existing field of judicial control." The LC recommended, in light of these difficulties, that there should be one 'application for judicial review', under which "a litigant should be able to obtain any of the prerogative orders, or, in appropriate circumstances, a declaration or an injunction." They note that the "vital difference" from the present system would be that "the litigant's choice of remedies in the Divisional Court would not be limited to the prerogative orders but would also ... [include] a declaration or an injunction.'
Following the Law Commission's report the bulk of proposals were brought into being by an amendment in 1977 to Order 53 of the Rules of the Supreme Court --- a further amendment was brought in 1980 and the Senior Courts Act 1981 affirmed and codified certain aspects of the amendments to Order 53. As a result of these reforms, the application for JR (the forerunner of today's procedure) was introduced, thus making it possible to seek prerogative and ordinary remedies in the same proceedings. Supreme Court Act 1981, ss. 29-31 s. 29 --- Mandatory, prohibiting and quashing orders. (1) The orders of mandamus, prohibition and certiorari shall be known instead as mandatory, prohibiting and quashing orders respectively. s. 30 --- Injunctions to restrain persons from acting in offices in which they are not entitled to act. (1) Where a person not entitled to do so acts in an office to which this applies, the High Court may---
(a) grant an injunction restraining him from so acting; and (b) if the case so requires, declare the office to be vacant. (2) This section applies to any substantive office of a public nature and permanent character which is held under the Crown or which has been created by any statutory provision or royal charter. s. 31--- Application for judicial review. (1) An application to the High Court for (a) a mandatory, prohibiting or quashing order; (b) a declaration or injunction under subsection (2); or (c) an injunction under section 30 restraining a person not entitled to do so from acting in an office to which that section applies, shall be made in accordance with rules of court by a procedure to be known as an application for judicial review.
(2) A declaration may be made or an injunction granted under this subsection in any case where an application for JR has been made and the High Court considers that, having regard to: (a) the nature of the matters in respect of which relief may be granted by [mandatory, prohibiting or quashing orders]; (b) the nature of the persons and bodies against whom relief may be granted by such orders; and (c) all the circumstances of the case, it would be just and convenient for the declaration to be made or the injunction to be granted, as the case may be. (3) No application for judicial review 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. (4) On an application for JR, the court may award damages, restitution or the recovery of a sum due [i.e. debt] if: (a) the application includes a claim for such an award arising from any matter to which the application relates; and (b) the court is satisfied that such an award would have been made if the claim had been made in an action begun by the applicant at the time of making the application. (5) If, on application for JR, the court quashes the decision, it can also: (a) remit the matter to the court, tribunal or authority which made the decision, with a direction to reconsider the matter and reach a decision in accordance with the findings of the High Court, or (b) substitute its own decision for the decision in question. (5A) But the power conferred by subsection (5)(b) is exercisable only if- (a) the decision in question was made by a court or tribunal, (b) the decision is quashed on the ground that there has been an error of law, and (c) without the error, there would have been only one decision which the court or tribunal could have reached. (6) Where Court considers there's been undue delay in making an application for JR, 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. (7) Subsection (6) is without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made.
[i.e. preserves the previous 3-month time limit [unless good reason] under Order 53]
s.31A --- deals with the transfer of judicial review applications to Upper Tribunal Bamforth (from SR lecture notes): the most significant thing isn't what this says, but what it doesn't say --- it tells us a lot about procedure (time limits etc.), but what's missing is any
discussion at all of the grounds on which C can get JR (e.g. Wednebsury, jurisdiction, procedural unfairness) or which bodies you can proceed against. These bodies were deliberately left out, and were left to common law to develop --- the benefit of this is that courts have been able to develop this area (so things like the law on jurisdictional error have evolved at fast pace) On the other hand, this has led to the problem, still today, that there's been persistent litigation about which bodies are subject to JR, and in relation to which activities. The uncertainties that have been in place since 1981 are still in play today --- indeed the root cause of a lot of the problems that we have now are that no attempt was made to address this stuff Issues with this procedure (Elliott)
? Applicants under the Order 53 procedure had to comply with a number of conditions designed to protect public authorities against litigation which would unduly interfere with the discharge of their public functions. o For example (under Order 53 r.3(2)) applicants were required to obtain the leave of the court to seek JR by applying ex parte to a Crown Office judge. o They also had to bring their application "promptly and in any event within three months from the date when grounds for the application first arose" unless there were good reasons for non-compliance with this requirement (Order 53 r.4(1)). Law Commission Report No. 226 (1994) and comment Part 54 came into force in October 2000, following the 'Bowman Report', which advocated (with some modifications) the implementation of many of the Law Commission's recommendations in report 226 (1994): LC's recommendations:??
LC is recommending reform of the procedures and modes of relief available in JR proceedings. The The LC's 1976 report on remedies paved the way for modern procedure in Order 53 of Rules of Supreme Court. The LC note that the procedural mechanisms introduced in 1977, revised in 1980, "have had to be applied in context of wide ranging changes in the scope of judicial review." There have been a number of calls for further reform (e.g. Lord Woolf, and JUSTICE-All Souls). "The development of the requirement that as a general rule claims for injunctions and declarations relating essentially to all public law matters must be brought by an application for judicial review (which we call the principle of "procedural exclusivity") has led to concern that needless litigation is generated over procedural issues, rather than the substance of a dispute"
The LC are not looking at substantive grounds for JR here --- they think those "should continue to be the subject of judicial development". Instead they are looking to create "an effective procedural framework"
Gordon (1995) note on the recommendations?
The LC's report responds to calls for reform; particularly in light of the HL's decision in O'Reilly v Mackman, which appeared to create a form of procedural exclusivity separating private from public law "with an archaism reminiscent of the old forms of action." Outline of recommendations: the most important procedural recommendations are the following:
1. Leave to apply for JR: Applicants will no longer have to request "leave to apply for JR" from a Crown Office judge --- there will just be a "preliminary consideration" stage, conducted on paper (there will be oral hearings in exceptional circs where interim relief is sought, or such a hearing is considered desirable in interests of justice (in eyes of Crown Office or Court)).
2. Preliminary consideration: a judge may issue a "request for information" from the respondent. The judge can then order oral hearing or reach a decision on the submitted information.
3. The test for whether the case should proceed beyond the preliminary consideration stage is no longer whether the case is arguable but, rather, whether there is a serious issue which ought to be determined.
4. Keep current time limit of 3 months: An application ought not to be allowed to proceed to a substantive hearing unless the applicant has exhausted all alternative legal remedies or demonstrates that judicial review is an appropriate remedy. For this reason, the court should take account of the fact that an alternative remedy was being pursued as a good reason why an application made after three months should be allowed to proceed to a substantive hearing.
5. Claims for restitution, debt and interest should be allowed (at the same time as JR) and interim relief before the preliminary consideration is concluded.
6. Applicants should only be required to pursue judicial review proceedings where the matter is solely one of public law.
Case management in the Crown Office List --- the preliminary condition stage
? It was previously not very difficult to persuade a nominated Crown Office judge that if a case took more than a few minutes to argue at the leave stage, there must be something arguable in it. However, it had come harder.
? The LC formulate the leave stage test as whether there's a "serious issue to be determined."
? Gordon thinks that the LC's test sets a high threshold and that it must be driven by a case load management philosophy. This in turn raises what Le Sueur and Sunkin called the "constitutional significance" of the leave requirement:
??o Higher thresholds make it potentially more difficult to get justice against bodies exercising public functions than others. And it is also "potentially contradictory" to task judges with both the role of impartial adjudicator and ask them to "manage" the JR case-load and protect public bodies from improper challenge. Gordon argues that it is "inappropriate" to have this more stringent test across the board
- this will "undermine citizen challenge cases", which cuts against some of LC's other proposals Proposals for extended paper hearings are designed to achieve quicker substantive hearings, which is a "desirable objective", but Gordon questions whether this process will actually reduce delay at all because a 'paper chase' between all the parties could drag on. And the idea that crown office can determine whether there's to be an oral hearing 'in the interests of justice' is controversial. By renaming the leave stage, the LC sees itself as removing a perception that the citizen seeking public law redress is at a disadvantage compared to the citizen asserting a private law right; however, he may well be at such a disadvantage, and there may be a good reason for this. Changing the words won't change the reality.
On time limits:
? Order 53, as enacted in 1977, implemented the LC's thinking that only "undue delay" from the applicant should enable a court to refuse relief. The Senior Courts Act 1981 s31(6) is drafted to accord with this view, but then 31(7) provides that (6) doesn't affect any time limits in place (i.e. 3 months). Thus, s.31 and Order 53 have "interacted unsatisfactorily"
? For some reason, the LC have left their previous reasoning and stuck with the 3-month limit. But why should a limit of 3 months be applied to a true public interest challenge even when there's no detriment to good administration?
? It's an 'imaginative report', but the underlying problem is still unresolved: "how to rationalise public law by applying procedure and principle sufficiently flexibly to the disparate case load within the Crown Office List"
? The issue of case management 'looms large' in the LC's proposals, particularly regarding leave. There is also a new public interest focus (EP: this has to do with standing of pressure groups etc.) Those two philosophies aren't necessarily mutually exclusive, but certainly they don't really complement each other. Sandra Fredman (1995) comment:There is a controversial question of whether there should be a separate and exclusive procedure for cases concerned with public law. o Proponents of exclusivity argue that it's essential to protect public bodies from untimely or vexatious litigation.
??o Opponents argue that the attempt to link the choice of procedure with the concepts of 'public' and 'private' has led to confusing and unnecessary litigation. o LC goes for compromise: they reject the notion of a unified procedure, but promise to introduce greater flexibility into the system in order to avoid confusion and injustice. The principle of procedural exclusivity originated in O'Reilly v Mackman: This case establishes the general rule that claims for declarations or injunctions relating essentially to public law matters may only be pursued via the special procedure laid down in Order 53 Rules of Supreme Court (1981 Act, s31). Procedural exclusivity, however, has been difficult to operate, mostly because the notions of 'public' and 'private' are neither capable of precise definition nor mutually exclusive
--- this has lead to litigation on the appropriateness of the chosen procedure. The House of Lords, in partial recognition of those difficulties, has indicated a willingness to "soften the edges" of the O'Reilly principle: for example, in Roy v Kensington and Chelsea: the court held that JR should only be mandatory in cases involving purely public law issues. The aggrieved person need not proceed by JR when private rights were at stake, even if the establishment of the right might incidentally involve examination of a public law issue. The LC favours this approach: o They recommend keeping a separate procedure for challenging legality of public decisions and acts, because a unified procedure would prevent, they say, expeditious disposal of public law cases by specialist judges. Without a leave procedure to filter out hopeless cases, the courts might take a more restrictive approach to issues of wider public interest o Instead, they support the present position, whereby the litigant must proceed by way of Order 53 only when: (i) a challenge is solely to the validity or legality of a public authority's acts or omissions; and (ii) the litigant doesn't seek to enforce or defend a completely constituted private law right. o The LC recognises that this could have a detrimental effect on cases involving a combination of public and private issues, and so propose a greater ease of transfer into and out of Order 53 (then it was impossible for an applicant to transfer from a writ to Order 53; the LC propose new rule to permit this, provided that conditions for JR are fulfilled).
The LC recognises that they have to draw a balance between 4 competing public policy interests:
1. Public bodies shouldn't be allowed to act unlawfully.
2. Speed and certainty are needed in administrative decision making where large parts of the community are affected by public law bodies.
3. Private interest of individual litigants obtaining a remedy for their grievances (compare to the European context --- it cannot be too difficult to enforce EU rights).
4. Prompt adjudication.
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