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Law Notes Tort Law Notes

Jr Procedure Notes

Updated Jr Procedure Notes

Tort Law Notes

Tort Law

Approximately 1070 pages

Tort Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB tort law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).

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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.

  1. the desire to create a specialist administrative law court;

  2. a desire to match procedure to the type of issue;

  3. to protect public authorities from harassment by unmeritorious or untimely claims

  4. to underline the limited scope of judicial review;

  5. 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.);


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—

  1. grant an injunction restraining him from so acting; and

  2. if the case so requires, declare the office to be vacant.

  1. 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

  1. a mandatory, prohibiting or quashing order;

  2. a declaration or injunction under subsection (2); or

  3. 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.

  1. 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:

  1. the nature of the matters in respect of which relief may be granted by [mandatory, prohibiting or quashing orders];

  2. the nature of the persons and bodies against whom relief may be granted by such orders; and

  3. 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.

  1. 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.

  2. On an application for JR, the court may award damages, restitution or the recovery of a sum due [i.e. debt] if:

  1. the application includes a claim for such an award arising from any matter to which the application relates; and

  2. the court is satisfied that such an award would have been made if the claim had been made in an...

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