PLC An Introduction to Judicial Review

PLC An Introduction to Judicial Review

AN INTRODUCTION TO JUDICIAL REVIEW Judicial review is the main way that the courts supervise bodies exercising public functions to ensure that they act lawfully and fairly. While this supervisory jurisdiction is founded on statute (sections 29-31, Supreme Court Act 1981 (SCA 1981)) it is largely defined by a constantly evolving body of case law: "[It is a remedy] invented by the judges to restrain the excess or abuse of power" (R v Secretary of State for the Home Department, ex parte Brind [1991] AC 696, at para 751). The scope of judicial review is limited both in its availability and function. The role of the Administrative Court in judicial review proceedings is not to remake the decision being challenged, or (except for the purpose of considering its lawfulness) to inquire into the merits of that decision, but to conduct a review of the process by which the decision was reached in order to assess whether that decision was vitiated by some flaw. COMMERCIAL JUDICIAL REVIEW Increased regulation of industry and commerce, combined with the growing PFI (www.practicallaw.com/3-107-7049) and public procurement market, has contributed to a dramatic increase in the number of commercial judicial review claims in recent years. Such claims have sought to challenge a variety of public law decisions, from EU Directives and primary legislation in conflict with EU law, to the decisions of a wide range of regulatory authorities, both statutory and nonstatutory. The implementation of the Human Rights Act 1998 (HRA) has also had an effect on the number of applications for judicial review. While a free-standing application can be made under the HRA, a breach of its provisions may also form the basis for a judicial review application. Despite the wide margin of appreciation typically afforded to public authorities, particularly those in specialist fields, and consequent difficulties in bringing a successful claim, there are a number of reasons for bringing proceedings, including: The considerable commercial impact of decisions by public bodies (whether they be regulatory determinations or rules, legislative restrictions, or procurement decisions) will often make it worthwhile bringing an application, however speculative. The speed and efficiency of judicial review proceedings compared with private law actions. The early examination of the merits during the permission stage, which provides an indication of

whether a judicial review application is worth pursuing. Use of success at the permission stage to encourage negotiations with the relevant public body and increase the likelihood of settlement. Lower legal costs, especially when compared to the amount of money at stake due to the relatively expedited process and the absence of automatic disclosure and oral examination of witnesses.

AVAILABILITY OF JUDICIAL REVIEW The availability of judicial review is limited in three main ways: The decisions that may be challenged. The persons eligible to make a judicial review application. The time within which a judicial review application may be brought.

Which decisions can be judicially reviewed? The boundary between public bodies, some of whose decisions are amenable to judicial review, and the private sector is ill-defined and constantly evolving. All bodies exercising functions of a public law nature are susceptible to a challenge by way of judicial review. In deciding whether a particular act or decision is judicially reviewable, the courts will focus on the nature of the act or decision being challenged rather than on the identity of the body in question or the source of its powers (R v Panel on Takeovers and Mergers, ex parte Datafin plc [1987] QB 815, at paras 847-9 (per Lloyd LJ)). It is somewhat artificial to consider the reviewability of the body and the act or decision in question separately: the key question is whether that act or decision is one that should be subject to judicial review. The following factors are relevant to the assessment of whether an act or decision is judicially reviewable: The public performed. importance of the function being

The source of the power being exercised (R v Disciplinary Committee of the Jockey Club, ex parte The Aga Khan [1992] EWCA Civ 7). The motivation for the body being able to exercise that power (in particular, if the power would otherwise be exercised by a governmental authority it is a strong indication that the action is judicially reviewable) (R (on the application of Beer (trading as Hammer Trout Farm)) v Hampshire Farmers Market Ltd [2003] EWCA Civ 1056). The existence of a duty to act judicially in the making of a decision.

The existence of a private law right to challenge (R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1992] EWCA Civ 7; R (Tucker) v Director General of the National Crime Squad [2003] EWCA Civ 57, at para 18 (per Scott LJ)). The consequences of the decision, where the decision affects the public law rights or legitimate expectations of a person or persons, it is likely to be reviewable (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, paras 408-9).

However, even if these factors exist, it does not follow that the decision can be judicially reviewed. The only imperative elements are: That the relevant function has a public character. That the body making the decision does not derive its jurisdiction solely from the voluntary submission of the parties affected (for example, religious bodies or bodies regulating sport) (R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, ex parte Wachmann [1993] 2 All ER 249; R v Football Association Ltd, ex parte Football League Ltd [1993] 2 All ER 833; R v Criminal Injuries Compensation Board, ex parte Lain [1967] 2 QB 864, at para 882 (per Lord Parker CJ); R v Panel on Takeovers and Mergers, ex parte Datafin plc [1987] QB 815, at para 838 (Sir John Donaldson MR), at para 850 (per Nicholls J); R v Insurance Ombudsman; ex parte Aegon Life Insurance Ltd [1995] LRLR 101).

Even where the decision-making body is obviously a public body, when the act or decision does not involve a public law element, it will not be open to challenge by way of judicial review. For example, decisions relating to employment, (see R (Tucker) v Director General of the National Crime Squad [2003] EWCA Civ 57; R (on the application of Evans) v University of Cambridge [2002] EWHC 1382 (Admin)), or certain decisions of HM Revenue & Customs, such as the calculation of interest on a debt, (R v Inland Revenue Commissioners ex parte Barker) will be considered a matter of private law and therefore not challengeable by way of judicial review. For commercial bodies, there remains considerable debate over whether and when decisions relating to the procurement of commercial contracts by public bodies will be challengeable by way of judicial review. Some authorities suggest that such decisions will only be challengeable where: There was a suggestion of "fraud, corruption or bad faith" (Mercury Energy Ltd v Electricity Corporation of New Zealand [1994] 1 WLR 521, at para 529). Irrationality (R (on the application of Gamesa Energy UK Ltd) v National Assembly for Wales [2006] EWHC 2167 (Admin), at para 77) A failure to follow a statutory process ((R (Cookson and Clegg) v Ministry of Defence [2005] EWCA Civ 811).

Examples of reviewable decisions It is clear from these principles and the examples already given that some decision-making bodies that might not seem to be obvious candidates for judicial review have been subject to such challenge in certain circumstances. Other examples include: An airport operator. Here the decision under scrutiny was made by the airport consultative committee of Fairoaks Airport, which had decided to refuse membership to local residents' committees. The local residents who lived close to the boundary of the airport suffered from noise and vibration caused by aircraft. Fairoaks Airport Ltd was judicially reviewed and the decision of its committee was overturned (R v Fairoaks Airport Ltd, ex parte Roads [1999] COD 168). An industry trade association. A committee of the Association of the British Pharmaceutical Industry decided that a product marketed by a non-member company might bring discredit on the industry and that it could never be marketed. The decision was challenged, and, while not overturned, the Administrative Court held that there was a public law aspect to the case with respect to pharmaceutical products that brought it within the scope of judicial

Privatisation has made the courts increasingly willing to accept jurisdiction where the decision in question impacts on matters of business and commerce. City regulatory bodies, even those that are non-statutory and non-mandatory, may now be reviewable (see R v Panel on Takeovers and Mergers, ex parte Datafin plc [1987] QB 815; R v Advertising Standards Authority Ltd, ex parte Insurance Service plc [1989] 133 Sol Jo 1545; R v Code of Practice Committee of the Association of the British Pharmaceutical Industry, ex parte Professional Counselling Aids Ltd (1990) 10 BMLR 21; R (on the application of Ford) v The Press Complaints Commission [2001] EWHC Admin 683)), but generally only where such bodies have been "woven into the fabric of public regulation" (R v Disciplinary Committee of the Jockey Club, ex parte The Aga Khan [1992] EWCA Civ 7, at para 864 (per Sir Thomas Bingham MR). Decisions of private organisations contracted to carry out a public body's statutory functions may also be reviewable, for example, the managers of a private psychiatric hospital were held to be a public authority when making decisions about the "focus" of wards in their hospital (R (A) v Partnerships in Care Ltd [2002] 1 WLR 2610).

review (R v Code of Practice Committee of the British Pharmaceutical Industry, ex parte Professional Counselling Aids Ltd [1991] 3 Admin LR 697). An independent school. The school participated in a government-assisted places scheme. A head teacher decided to withdraw an assisted place from a pupil due to unacceptable behaviour. Under the legislation governing the assisted places scheme, the school did not have the power to make such a decision, therefore, the decision was open to judicial review (R v Cobham Hall School, ex parte S [1998] ELR 389).

The extent of the claimant's interest in the issues. Whether there is any other likely claimant who could bring proceedings. The extent and nature of the remedy sought.

(For example, R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd [1995] 1 All ER 611, at para 620 (per Rose LJ) and R v Inspectorate of Pollution, ex parte Greenpeace Ltd (No. 2) [1994] 4 All ER 329, at para 349 (per Otten J)). Locus standi It is now considered that locus standi should not be treated as a preliminary issue, unless the lack of standing is immediately apparent, and should be dealt with as part of the substantive claim as it will turn on the facts and merits (Inland Revenue Commissioners v National Federation Self-employed and Small Businesses [1982] AC 617, at para 630 (per Lord Wilberforce), at para 645 (per Lord Fraser), at para 653 (per Lord Scarman) and R v Monopolies and Mergers Commission, ex parte Argyll Group plc [1986] 2 All ER 257, at para 265 (per Sir John Donaldson MR)). This approach has continued in cases involving pressure groups. For example, Greenpeace was found to have sufficient standing to challenge a decision permitting British Nuclear Fuels to test a new re-processing plant (R v Inspectorate of Pollution, ex parte Greenpeace Ltd (No. 2) [1994] 4 All ER 329). While the courts have been wary of allowing people to air their grievances (R (on the application of England) v Tower Hamlets London Borough Council [2006] EWCA Civ 1742), where well-established responsible campaigners in particular fields are involved the courts have taken the view that to deny them standing would prevent important issues from being properly considered (R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd [1995] 1 All ER 611, at para 620 (per Rose LJ)). It even seems from recent cases that an individual with no private interest who has raised an issue of public importance that would not otherwise be raised will have sufficient standing (R v Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg [1993] EWHC Admin 4; R (on the application of Hammerton) v London Underground [2002] EWHC 2307 (Admin)), and may even merit a protective costs order in their favour (R (on the application of) Corner House Research v Secretary of State for Trade & Industry [2005] EWCA Civ 192). In claims involving alleged breaches of human rights, the claimant must be a victim of that violation (section 7, HRA). It is accepted by the European Court of Human Rights (www.practicallaw.com/7-107-6552) (ECHR) that nonnatural persons, other than governmental organisations, can

Locus standi and public interest In order to bring an application for judicial review, a party must have: "sufficient interest in the matter to which the application relates" (section 31(3), SCA 1981). Timing and alternative remedies An application for permission to apply for judicial review must be made promptly and in any event within three months from the date when grounds for the application first arose (CPR 54.5(1)). The parties may not extend this time period by agreement and it may be shortened by any other statutory enactment (CPR 54.5(2) and (3)). Further, where there is undue delay, the court may refuse permission or may refuse relief on the basis that to grant either would cause substantial hardship or prejudice to third parties or detriment to good administration (section 31(6), SCA 1981). The court may extend the time limit for the application pursuant to CPR 3.1(2)(a), but only where there is good reason to do so. Sufficient interest Although the courts have avoided defining exactly what amounts to a sufficient interest, the general trend over recent years has been toward a liberalisation of this requirement, with the courts increasingly unwilling to dismiss a meritorious application for lack of standing (R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd [1995] 1 All ER 611, at para 620 (per Rose LJ)). In considering sufficiency of interest the courts have identified the following relevant factors: The importance of maintaining the rule of law. The importance of the issue in contention. The nature of the breach of duty. The identity and role of the claimant.

be considered victims (Osterreichischer Rundfunk v Austria (35841/02 [2006] ECHR 1043)). Timing and alternative remedies An application for permission to apply for Judicial Review must be made promptly and in any event within three months from the date when grounds for the application first arose (CPR 54.5(1)). The parties may not extend this time period by agreement and it may be shortened by any other statutory enactment (CPR 54.5(2) and (3)). Where there is undue delay, the court may refuse permission or relief on the basis that to grant either would cause substantial hardship or prejudice to third parties or detriment to good administration (section 31(6), SCA 1981). The court may extend the time limit for the application (section 31(6), SCA 1981), pursuant to CPR 3.1(2)(a), where there is good reason to do so. GROUNDS FOR JUDICIAL REVIEW Traditionally, the grounds for judicial review have been categorised under three heads, laid down by Lord Diplock: Illegality. Irrationality. Procedural impropriety.

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UK Acts of Parliament and delegated legislation that are inconsistent with EU law. UK delegated legislation that is inconsistent with an Act of Parliament. A decision of a public body that is inconsistent with EU law, an Act of Parliament or delegated legislation.

Since the coming into force of the HRA 1998, all of these types of illegality may be challenged as unlawful under section 6 if they are contrary to the European Convention on Human Rights and Fundamental Freedoms (www.practicallaw.com/1-107-6550) (ECHR), as long as the public authority in question falls within the definition in the HRA (sections 6(3)-(5), HRA). Example of a successful judicial review on the ground of illegality One example of an important commercial challenge involving illegality was the case of R v Secretary of State For Health and Others, Ex Parte Imperial Tobacco Limited and Others [2000] UKHL 60. In Imperial Tobacco, the UK's major tobacco companies sought to challenge the UK government's decision to introduce national legislation to give effect to the requirements of an EU Directive banning the advertisement and sponsorship of tobacco products. The companies alleged that the Directive was illegal, since it was a measure designed to protect public health, a matter outside the competence of the European Union. Therefore, the UK's intention and obligation to implement the Directive would also be illegal. The English court accepted jurisdiction and permitted a challenge to EU legislation before domestic implementing legislation was in place. Once the High Court had given permission for the judicial review to proceed, it made a reference to the European Court of Justice (ECJ), asking it to rule on the validity of the Directive. On 5 October 2000, the ECJ ruled that the Directive was invalid. It was subsequently annulled. A claim of illegality may also be valid where: Inferior courts, tribunals and quasi-judicial bodies (such as regulators and ombudsmen) make jurisdictional errors (for example, where the body misdirects itself as to the extent of its jurisdiction and wrongly accepts or refuses jurisdiction over a particular matter) (R v Secretary of State for the Home Department, ex parte Khawaja [1984] AC 74). The decision-maker exercises its power for an improper purpose (Porter v Magill [2002] 2 AC 357).

(Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, at para 410). However, Lord Diplock recognised, even then, that: "further development on a case by case basis may in course of time add further grounds" (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, at para 410). This type of categorisation is somewhat artificial, as the grounds for judicial review are (perhaps increasingly) fluid and overlapping. The recognised grounds currently available can, however, be classified under four heads: Illegality (see below). Irrationality (see below). Procedural unfairness (see below). Legitimate expectation (see below).

Illegality Illegality arises when a decision-maker: Misdirects itself in law. Exercises a power wrongly. Improperly purports to exercise a power which it does not have (ultra vires). Using this ground it is possible to challenge, amongst other decisions:

The decision frustrates the purpose of the empowering legislation (Padfield v Minister of Agriculture, Fisheries and Food [1986] AC 997). There has been an impermissible delegation of power (Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 approved by R v Secretary of State for the Home Department, ex parte Oladehinde [1989] UKHL 3 and Vine v National Dock Labour Board [1957] AC 488).

be as rigorous as the European standard of proportionality, but is still a more intense review than that under Wednesbury (R v Ministry of Defence, ex parte Smith [1995] EWCA Civ 22). The court will require substantial justification for any interference with human rights to be satisfied that the decision was lawful (R (on the application of Mahmood) v Secretary of State for the Home Department [2000] EWCA Civ 315, at para 856 (per Lord Phillips of Worth Matravers MR)). In assessing the reasonableness of a decision, the courts may also consider whether a decision is proportionate to the aim it is seeking to achieve. It was once thought that disproportionality, was a ground in itself to review a decision. However, the general view now is that this principle is only a component of unreasonableness (R (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence [2003] QB 1397, at para 1413 (per Dyson LJ)). Proportionality is, however, a general principle of EU law and will be applied by the English courts when they are construing domestic law made under an EU measure. Example of a successful judicial review on the ground or irrationality One example of a successful challenge on irrationality grounds is the challenge to a change to the Non-Domestic Rating (Chargeable Amounts) (England) Regulations 1999 (SI 1999/3379), when the 2004 Regulations of the same name (SI 2004/3387) were introduced. Under both sets of Regulations a transitional scheme operated for the purposes of softening any dramatic increase in non-domestic rate payments. However, under the 2004 Regulations the benefit of the scheme was withdrawn from hereditaments with a starting value of zero before revaluation. When the valuation officer decided that the new rateable value of the applicant's relevant hereditaments should be listed as 1,725,000, the revaluation left the applicant with a new and immediate liability of 727,950. It appeared that the applicant, British Waterways Board, was the only ratepayer to be affected by the change. The court held that the transitional provisions scheme affected the claimant in an irrational and unfair way and, accordingly, was unlawful and should be reconsidered. (R (on the application of the British Waterways Board) v First Secretary of State [2006] EWHC 1019 (Admin).) It is questionable whether a failure to take proper account of the appropriate considerations (that is, that relevant considerations have been disregarded or irrelevant considerations taken into account) is a component of irrationality or more properly one of procedural impropriety, although nothing is likely to turn on the distinction. What is clear is that it is a fundamental and commonly relied upon ground for judicial review (R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23). It is considerably easier to

Irrationality: Wednesbury unreasonableness A decision may be challenged as unreasonable if: It "is so unreasonable that no reasonable authority could ever have come to it" (Wednesbury unreasonableness (www.practicallaw.com/6-2009152)) (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1, at para 230). The decision-maker in reaching its decision took into account irrelevant matters and/or failed to consider relevant matters (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759; Re Findlay [1985] AC 318; R (Khatun) v Newham London Borough Council [2005] QB 37).

To establish Wednesbury unreasonableness is difficult and despite recent criticism of the test (see R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, at para 549 (per Lord Cooke of Thorndon) and R (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence [2003] QB 1397, at para 1413 (per Dyson LJ)), the courts are still very reluctant to find that a decision was Wednesbury unreasonable (see, for example, Bromley London Borough Council v Greater London Council [1983] 1 AC 768, at para 821 (per Lord Diplock) and Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, at para 410 (per Lord Diplock). This is particularly the case where the decision-maker is an expert, whose judgment the court would be unwilling to substitute with its own, save in the most exceptional case of blatant unreasonableness (see R v (Great North Eastern Railway Ltd) v Office of Rail Regulation [2006] EWHC 1942, in which reference was made to the Office of Rail Regulation's expertise in a "highly technical field" which the court would be "very slow to impugn"). For examples of successful challenges on the ground of Wednesbury unreasonableness, see R v Hendon Justices, ex parte DPP [1994] QB 167 and R v Secretary of State for the Home Department, ex p Bostanci [1999] Imm AR 411. The Wednesbury unreasonableness test has, however, been superseded in claims involving human rights. The principle, which was developed before the introduction of the HRA came into force, is that decisions affecting human rights should be subject to "anxious scrutiny". Such scrutiny will not

establish a claim on this basis than on pure unreasonableness, although the flaw must be a material one in order to give rise to any unlawfulness. In R v Parliamentary Commissioner for Administration, ex parte Balchin [1998] 1 PLR 1, the court identified the test as being: "whether a consideration had been omitted which, had account been taken of it, might have caused the decision-maker to reach a different conclusion." The court will afford the decision-maker a degree of latitude in assessing whether it has taken proper account of the relevant factors, recognising that, in the real world, when weighing up complex matters there will often be a grey area (for example, R v Exeter City District Council, ex parte JL Thomas & Co [1991] 1 QB 471, at para 484). Procedural unfairness The ground of procedural unfairness will arise if: The decision-maker has not properly observed the relevant statutory procedures, such as a failure to consult or to give reasons. There has been a failure to observe the principles of natural justice in the decision-making process (such as if the decision-maker has shown bias (R v Bow Street Magistrate, ex parte Pinochet (No. 2) [2000] 1 AC 119, at para 132 (per Lord Browne-Wilkinson); Porter v Magill [2002] 2 AC 357, at para 494, (per Lord Hope)), or has failed to hear an affected party (R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531, at para 560 (per Lord Mustill)).

substance of the claim, except to provide a basis for the award of damages. The Cabinet Office Code of Practice on Consultation The Cabinet Office Code of Practice on Consultation sets out the following six general principles of good consultation to guide government departments: Consult as widely as possible and allow at least 12 weeks for responses unless there is proper justification for a shorter time period. Set out proposals and issues clearly, identifying the questions that responses should address. Consultation papers should be clear, concise and widely accessible. Following consultation, justify the decision in light of the responses received. Monitor the effectiveness of consultation and amend procedures accordingly. Ensure the procedure for consultation also complies with better regulation best practice, including incorporating a Regulatory Impact Assessment.

Example of a successful judicial review on the ground of procedural unfairness One example of a successful judicial review on the grounds of procedural unfairness is R (Medway Council) v Secretary of State for Transport [2002] EWHC 2516 (Admin). In this case the Secretary of State issued a consultation document preparatory to a White Paper on the future development of air transport. Owing to a prior agreement between the relevant local authority and the British Airports Authority, he decided to exclude from the consultation any options relating to the expansion of Gatwick airport. It was held to be premature to exclude the Gatwick option since the aim of the consultation period was to refine various assumptions: the consultation had excluded those in favour of Gatwick from making a contribution. Legitimate expectation: procedural and substantive In addition to those obligations imposed by law, a public authority may, by its own statements and/or conduct, be required to act in a certain way, where persons have an expectation as to the way in which it will act. Such a legitimate expectation may arise in three cases: Where the decision-maker has made a clear and unambiguous representation that it will adopt a particular form of procedure above and beyond that which it would otherwise have been required to adopt. Where the claimant has an interest in some ultimate benefit that it hopes to attain or retain, fairness may

A flawed consultation process is now a common ground for challenge. It should be noted that, even if a decision-maker is not required by statute to consult, it is an essential element of fair process and, in any event, if a decision-maker chooses to consult, any flaw in that consultation may vitiate its decision. Adequate and consultation: lawful consultation requires that the

Be undertaken at a time when proposals are at a formative stage. Provides sufficient information to allow for a proper and informed response. Allows adequate time for response. Takes into account the consultation responses in a conscientious and open-minded way.

(R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213, at para 258.) In most instances, the requirements of natural justice broadly mirror the right to a fair trial under Article 6 of the ECHR. As such, relying on Article 6 rarely adds anything to the

require the claimant to be given an opportunity to make representations. Where the decision-maker has a substantive right, on which it was reasonable for the claimant to rely (a substantive legitimate expectation).

An order quashing the decision in question (quashing order). An order restraining the body under review from acting beyond its powers (prohibiting order). An order requiring the body under review to carry out its legal duties (mandatory order).

(R v Devon County Council ex parte Baker [1995] 1 All ER 73, at paras 88-89 (per Simon Brown LJ).) In all cases the expectation must be legitimate. Accordingly, there can be no expectation that the public authority will act unfairly or beyond its powers. A legitimate expectation will only arise only in a small number of cases. The courts recognise the need for public bodies to change their policies and not to fetter themselves. It is not sufficient to establish such an expectation to show that it was previously the public body's policy to act in a certain way, it must be open to that public body to depart from its existing policies, unless to do so in a particular case would amount to an abuse of power. The courts are particularly wary of recognising a substantive legitimate expectation and will only do so where there has been an abuse of power by the authority and the claimant has reasonably relied on the expectation to his detriment. A judge is likely to intervene only in exceptional cases (see R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213, at paras 241-51 for a discussion of substantive legitimate expectation). Example of a successful judicial review on the ground of legitimate expectation One example of a successful judicial review on the ground of legitimate expectation was a challenge by a disabled resident of a residential home who challenged her health authority's decision to close the residential home. She had been assured by the predecessor to the health authority that the home was her home for life and that was sufficient to give her a legitimate expectation that it would remain open. (R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213.) For further information on the substantive law relating to decision-making, see Practice note, Decision-making by public bodies: Avoiding legal challenge (www.practicallaw.com/6-383-9998). REMEDIES The question of remedies is often critical in judicial review proceedings, as it may determine not only whether it is worthwhile bringing a claim, but also whether permission will be granted to bring the claim. A claimant may seek one or more of six forms of final relief, all of which are discretionary. Three of these are specific to judicial review proceedings:

(CPR 54.2 and section 31(1), SCA 1981). The three other general remedies available are: A declaration. A stay or injunction. Damages.

(CPR 54.3 and sections 31(2) and (4), SCA 1981). Quashing, prohibiting and mandatory orders Although the appropriate remedy depends on the particular grounds and facts, a claimant will typically seek a quashing order, together with a mandatory order directing the public body to take the decision again in accordance with the courts judgment. Alternatively, if there is only one other possible outcome and the re-taking of the decision would be unnecessary, the court may make a quashing order and retake the decision itself (CPR 54.19). Prohibiting orders are now relatively rare as claimants will generally apply for an injunction. Owing to the very nature of judicial review, in many cases, even if there has been a serious procedural flaw in a decisionmaking process the best a claimant could hope for would be for the court to remit the decision back to the decision-maker to look at it again on a proper basis. The decision-maker may still lawfully come to the same decision as it did the first time. Declarations, injunctions and damages Declarations and injunctions may only be granted where they are just and convenient in all the circumstances (section 31(2), SCA 1981). Injunctions will often be granted as an interim remedy in accordance with CPR 25. A declaration setting out the rights or legal position of the parties is only generally available if other remedies are inappropriate. They are often sought when the subject matter of the proceedings affects a large number of people. There is also a growing body of case law confirming that the courts have jurisdiction to issue an advisory declaration, although only in very limited circumstances where the making of the declaration would be in the public interest, (for example, R (on the application of Campaign for Nuclear Disarmament) v Prime Minister of the United Kingdom [2002] EWHC 2777 (Admin), at paras 15 and 46 (per Simon Brown LJ), and para 52 (per Richards J)).

Damages are not available in judicial review proceedings except where another established cause of action is available for which damages may be sought: Based on a private right (such as a breach of statutory duty). Under the common law (such as negligence). For a breach of the HRA.

Where such a cause of action accrues, the claim for judicial review may include a claim for damages to avoid the need to bring parallel proceedings (CPR 54.3(2)). The real purpose of allowing claims for damages in these limited circumstances is to save a claimant who has valid claims arising out of the same circumstances, for both judicial review and damages for breach of a private right, to institute duplicate proceedings. On 3 July 2008, the Law Commission (www.practicallaw.com/7-107-6745) published the consultation paper Administrative Redress: Public Bodies and the Citizen. One of the provisional proposals in the paper is that damages should be available in judicial review if the claimant satisfies the elements of conferral of benefit, serious fault and causation. However, the consultation proposes that an award of damages would serve only as an ancillary remedy in judicial review and could only be claimed alongside the prerogative remedies. The outcome of the consultation, which closed on 7 November 2008, is awaited. FURTHER INFORMATION For a guide to the procedural aspects of bringing a judicial review, see Practice note, A practical guide to the judicial review procedure (www.practicallaw.com/9-376-4010).

This note is written as a general guide only. It should not be relied upon as a substitute for specific legal advice.

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