TOPIC: JUDICIAL REVIEW

Person must have locus standi, meaning a sufficient interest in the matter (see part 56.2). The pre CPR
authorities are useful. In most cases you are looking for a personal and direct interest in the matter. The question
is whether someone else, who has a separate matter, can apply for judicial review of a decision that was made
against you since they have an interest in the matter. The traditional view was that you had to have a close
interest in the matter. Interest groups are included in this category.

Most important case is IRC v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617.

In this case a group of tax payers sought to challenge the IRC’s dealings with other tax payers. The HL decided
that sufficient interest is to be determined by looking at the legal and factual circumstances of the case as a
whole. Some factors that they took into account were listed. Relationship between the complaintant and the
claimant; duties of the public body; the nature of the complaint; the relief sought. They concluded that the group
of tax payers did not have a sufficient so as to have locus standi.

R v Inspectorate of Pollution (ex parte Greenpeace Ltd) – Green peace was held to have locus standi on an
application…judge said that the court should take into account the nature of the claimant; the extent of the
claimant’s interest in the issues raised and the nature of the relief sought.

An interest group is more likely to be granted an order of certiorari rather than an order for mandamus.

Grounds for review (Remember it is a challenge to procedure and jurisdiction).

Ultra vires; Breach of natural justice; Audi Alterem Partem; bias (nemo judex); an error on the face of the record
(R v Northumberland Compensation Appeal Tribunal (ex p Shaw).); Wednesbury (reasons so bad that they are
irrational); improper delegation (delegatus non potest delegare); Failure to give reasons (depends).

Even after you have satisfied a ground you may not get relief that you seek. This is because public law remedies
are at the discretion of the court.

Ex Parte Goldstraw – relief refused since alternative remedy was available.

ICWI v Financial Services Commission – relief refused since subsequent circumstances made application for
judicial review academic.

Relief Available

Certiorari; Mandamus; Prohibition; Declaration; (CPR 56.1 three additional remedies being an injunction (Re M);
damages or restitution; a return of property).

Procedure

Stage 1 – Applying for Leave to Apply for Judicial Review

Application for leave to get judicial review (Rule 56.3 – pay attention to what must be in the application and what
must be in the application);
Application for Leave (56.3-5)

1. Form 7;
2. Affidavit in support;
3. Draft order.

Note that what must go in the form 7 is dramatically different from the normal form 7 and affidavit. The application
can be considered without notice and on paper. You may not have to go to court at all. If the judge is minded to
refuse on paper, they must call in the applicant/applicant and respondent to be heard.

Contents of Application/Affidavit

(i) Name, address and description of applicant and respondent(s);

(ii) Relief claimed including details of any interim relief sought;
(iii) Grounds on which relief is claimed;
(iv) Whether or not an alternate form of relief exists;
(v) If alternate form of relief exists, why judicial review is being sought;
(vi) Details of any considerations that the Respondent has given to their decision in response
to a complaint made by or on behalf of the applicant;
(vii) Whether time for making application has expired;
(viii) Whether the applicant is personally or directly affected by the decision about which he
complaint is made (I suppose this is the part about locus standi);
(ix) If the applicant is not personally or directly affected, what public or other interest the
applicant has in the matter;
(x) The name and address of the applicant’s attorney-at-law; and
(xi) The applicant’s address for service.

Notice that as it concerns (viii) and (ix) these are the tests for locus standi under the CPR 2002. So a person has
locus standi where they are either personally or directly affected by the decision about which the complaint is
made; or where the applicant has a public or other interest in the matter. But this relates directly to part 56.2
which states that an application for judicial review may be made by any person, group or body that has a
sufficient interest in the subject matter of the application. It is submitted that a sufficient interest means persons
who would be directly or personally affected by the decision and it also includes persons, groups or bodies with a
sufficient public or other interest in the matter.

After the application for leave to apply has been made, it must be considered forthwith by the judge. The judge
may direct that notice of the hearing be given to the Respondent or to the Attorney-General. If it is a matter that is
subject to an appeal, the Judge may postpone the hearing until after the appeal has been determined. The judge
may allow the application to be amended. The judge may grant leave on such terms or conditions as he deems
just. If the application is for an order of prohibition or certiorari, the judge must direct whether or not the grnat of
leave operates as a stay of proceedings. The judge may grant interim relief as he deem just.

Once leave is granted the judge must then direct when the first hearing or the full hearing of the claim for judicial
review must take place.

Leave to apply for judicial review is conditional on the applicant making a claim for judicial review within 14 days
of the applicant getting the order granting leave.

The application for leave to apply for judicial review must be made promptly and within three months from the
date when the grounds for application first arose.
The Court may extend the time for applying if there is good reason shown.
If the application is for certiorari, then the date on which the grounds for the application arose is the date of the
conviction, order or proceedings which the applicant seeks to quash.

When considering whether or not to grant or refuse leave to apply after there has been delay, the judge must
consider if the granting or refusal of relief would be likely to:
(i) cause substantial hardship to or substantially prejudice the rights of any person; or
(ii) be detrimental to good administration.

Stage 2 – Applying for the Judicial Review

2. File and serve FDCF within 14 days of the date of receipt of order granting leave to apply for judicial
review;

Note that the FDCF must identify that it is for judicial review and must identify the nature of the relief sought.

3. Affidavit in support.

The affidavit in support must state:

(i) the name, address and description of the claimant and the defendant;
(ii) the nature of the relief sought and must identify any interim relief sought, and whether the
applicant seeks damages, restitution, recovery of any sum due or alleged to be due or an
order for the return of property;
(iii) must set out the facts on which the claim is based and where practicable, the sum of
money due;
(iv) the claimant’s address for service; and
(v) the names and addresses of all defendants to the claim.

The general rule is that the affidavit must be sworn by the Claimant or by an appropriate officer if the Claimant is
not an individual.

When the FDCF is issued, the registry must then fix a date for a first hearing. The date must be endorsed on the
FDCF.

The general rule is that the first hearing is to take place 4 weeks after the date of issue of the FDCF.

The Application can be made without notice but it must be supported by evidence on affidavit.

Stage 3 – Service of the FDCF

Service must be on all persons directly affected not less than 14 days before the date fixed for the first hearing.

If the order is for certiorari or for mandamus in relation to a court order, then the FDCF and the Affidavit in
support must be served on the Clerk or Registrar of the Court and on the judge if any objection is taken to the
conduct of the judge.

Where leave given to make a claim for judicial review, the claimant must serve a copy of the application for leave
to apply, the affidavit in support and the order granting leave to apply in addition to the FDCF and the affidavit in
support of the FDCF.

7 Days before the date of the first hearing, the Claimant must file at the Registry of the Supreme Court an
affidavit giving:

(i) giving the names and address of all defendants served with a claim form;
(ii) the date and place of service on each defendant;
(iii) if any defendant has not been served, the fact that the defendant has not been served and the
reason.

Stage 4 – Responding

A person may file an affidavit in response to the FDCF. But the provisions of Part 10 apply.
 4. (56.12) no statement of when it has to be filed but there is some room to say that it should be filed
within the time for filing a defence;

Stage 5 – First Hearing

5. First hearing (56.13 -14). Same powers as at case management. This is when you should make
any procedural applications and the court sets time for final hearing;

Stage 6 – Actual Hearing

6. Final hearing (56.15) this can be either in open court or chambers (usually open court) before a
single judge or a panel of 3 judges (a full court).

Court may allow any person or body who has a sufficient interest to make submissions whether or not they
were served with the Claim Form. The submissions must be by a written brief. The court can grant whatever
relief it deems just whether or not the relief should have been sought by an application for an administrative order
(this is perhaps a codification of the principle in

Note that judicial review rules covers constitutional cases as well.

If the Claimant is applying for an order of certiorari to remove proceedings for the purpose of quashing them, then
the Claimant cannot question the validity of any order, warrant, commitment, conviction or record unless –
(i) Before the trial the Claimant has lodged with the registry a copy of the order etc verified by an
affidavit; or
(ii) Can account for the failure to do so to the satisfaction of the court.

If the Claim is for an order of certiorari, the court may, if satisfied that there are reasons to quash, direct that that
proceedings be quashed on their removal to the court and may remit the matter to the court below with a
direction to reconsider it in accordance with the findings of the court.
CASES

Obtaining Leave to Apply

R v Stratford-on-Avon District Council ex p Jackson [1985] 1 WLR 1319

On 30 August 1984, the respondent local planning authority passed a resolution resolving to grant planning
permission for a supermarket. On 10 May 1985, the applicant applied for leave to apply for judicial review of that
resolution, her contention being that in resolving to grant the planning permission the local planning authority had
been misled by their planning officer and as a result had failed to consider various relevant matters.

The application was out of time under R.S.C., Ord. 53, r. 4(1), and the applicant's explanation of her delay in
making it included time taken in applying for and obtaining legal aid and time taken in unsuccessfully attempting
to persuade the Secretary of State for the Environment to intervene and himself determine the merits of the
application for planning permission. On 17 July 1985, Forbes J. held that he should not exercise his discretion
and extend the applicant's time under Ord. 53, r. 4(1) for making the application. He accordingly dismissed it.

On the applicant's renewal of her application before the Court of Appeal: --

Held, allowing the application,

The words in R.S.C., Ord. 53, r. 4(1) "an application for judicial review" referred to the ex parte application for
leave to apply, not to the substantive application (post, p. 1322E-F).

The essential requirement of rule 4(1) was that an application should be made "promptly"; but that the applicant
*1320 could no properly be criticised for taking time in seeking to get the Secretary of State to intervene, even
though the prospect of his doing so had been remote; and that in relation to judicial review, involving public law
proceedings, it was a legitimate excuse for delay that time had necessarily been taken in obtaining legal aid; that,
on the facts, the applicant had accounted satisfactorily for the overall delay in making her application and there
was "good reason" for extending the period for making it (post, pp. 1322H, 1323F, 1324A, H).

Whenever there was a failure to act promptly or within three months as prescribed by R.S.C., Ord. 53, r.4(1)
there was "undue delay" within section 31(6) of the Supreme Court Act 1981 even though there might be "good
reason" for that failure; and, that, accordingly, on the hearing of the substantive application the planning authority
would be entitled to argue that the court should, in its discretion, refuse to grant the relief sought by the applicant
on the grounds in section 31(6).

Per Ackner LJ
It has been argued before us that the words "good reason" in the rule should have a very restricted meaning.
Reliance was placed on decisions concerning R.S.C., Ord. 6, r.8, relating to the renewal of writs after the
limitation period has accrued. Reference was made to the well known case of Heaven v. Road and Rail Wagons
Ltd. [1965] 2 Q.B. 355 and to Baker v. Bowketts Cakes Ltd. [1966] 1 W.L.R. 861, 865, where Lord Denning M.R.
held that, in considering whether to extend the validity of the writ, difficulties in obtaining legal aid had to be
ignored. We do not derive any assistance from considering these cases, which, of course, only relate to civil suits
involving private law proceedings and have no relation to judicial review, which involves public law proceedings.
In judicial review proceedings there is no true lis inter partes or suit by one person against another: see Reg. v.
Secretary of State for the Environment, Ex parte Hackney London Borough Council [1983] 1 W.L.R. 524 *1324 ,
538-539. We agree with Forbes J. that it is a perfectly legitimate excuse for delay to be able to say that the delay
is entirely due to the fact that it takes a certain time for a certificate to be obtained from the legal aid authorities
and that, despite all proper endeavours by an applicant, and those advising her, to obtain a legal aid certificate
with the utmost urgency, there has been some difficulty about obtaining it through no fault at all of the applicant.

R v Secretary of State for Health ex p Furneaux [1994] 2 All ER 652

As, doctors in a rural practice, applied to be allowed to provide pharmaceutical services. The committee granted
outline consent in December 1990. The appeal by two local pharmacists was allowed by the Secretary of State in
July 1991. In January 1992 As applied for judicial review on the grounds that the Minister had considered
information of which the doctors were unaware. It was agreed that the decision should be quashed but a local
company which had bought the only pharmacy in the immediate locality on the strength of the Minister's decision,
was granted leave to intervene. It applied for the judicial review proceedings to be dismissed on the grounds of
undue delay and "substantial prejudice" to their rights. The judge dismissed the application.

Held, allowing the appeal,

If an applicant for judicial review failed to apply promptly he was guilty of undue delay even if there was a reason.
The court then had a discretion to refuse the application for judicial review on the ground of substantial prejudice
to the rights of another. Here substantial prejudice existed which did not have to have a causal connection with
the delay (dictum in R. v Stratford-on-Avon DC Ex p. Jackson [1985] 1 W.L.R. 1319 applied).

Where there has been undue delay in applying for judicial review, the court may refuse the application if a third
party might suffer substantial prejudice to its rights.

Arguable Case

IRC v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617.
CIVIL PRACTICE AND PROCEDURE II

TUTORIAL NOTES AND ANSWERS TO QUESTIONS

WORKSHEET 5

TOPIC: JUDICIAL REVIEW

Case List

Nature of Judicial Review

Chief Constable of The North Wales Police v Evans [1982] 1 WLR 1155

Per Lord Hailsham of St. Maryleborne LC pp 1160-61

The first observation I wish to make is by way of criticism of some remarks of Lord Denning M.R. which seem to
me capable of an erroneous construction of the purpose of the remedy by way of judicial review under R.S.C.,
Ord. 53. This remedy, vastly increased in extent, and rendered, over a long period in recent years, of infinitely
more convenient access than that provided by the old prerogative writs and actions for a declaration, is intended
to protect the individual against the abuse of power by a wide range of authorities, judicial, quasi-judicial, and, as
would originally have been thought when I first practised at the Bar, administrative. It is not intended to take away
from those authorities the powers and discretions properly vested in them by law and to substitute the courts as
the bodies making the decisions. It is intended to see that the relevant authorities use their powers in a proper
manner.
Since the range of authorities, and the circumstances of the use of their power, are almost infinitely various, it is
of course unwise to lay down rules for the application of the remedy which appear to be of universal validity in
every type of case. But it is important to remember in every case that the purpose of the remedies is to ensure
that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of
that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by
law to decide the matters in question. The function of the court is to see that lawful authority is not abused by
unfair treatment and not to attempt itself the task entrusted to that authority by the law. There are passages in the
judgment of Lord Denning M.R. (and perhaps in the other judgments of the Court of Appeal) in the instant case
and quoted by my noble and learned friend which might be read as giving the courts carte blanche to review the
decision of the authority on the basis of what the courts themselves consider fair and reasonable on the merits. I
am not sure whether the Master of the Rolls really intended his remarks to be construed in such a way as to
permit the court to examine, as for instance in the present case, the reasoning of the subordinate authority with a
view to substituting its own opinion. If so, *1161 I do not think this is a correct statement of principle. The purpose
of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after
according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which
is correct in the eyes of the court.

O’Reilly v Mackman [1983] 2 AC 237

The four plaintiffs, prisoners in Hull Prison, were charged with disciplinary offences before the board of visitors to
the prison. In the case of each plaintiff the board held an inquiry found the charges proved and imposed
penalties. Three of the plaintiffs brought actions by writ in the Queen's Bench *238 Division of the High Court
against the board alleging that it had acted in breach of the Prison Rules and the rules of natural justice and
claiming a declaration that the board's findings against them and the penalties awarded were void and of no
effect. The fourth plaintiff started proceedings by originating summons in the Chancery Division against the Home
Office and the board of visitors alleging bias by a member of the board and claiming a declaration that the
board's adjudication was void for want of natural justice. In all four cases the defendants applied to strike out the
proceedings. Peter Pain J. dismissed the applications. The Court of Appeal reversed that decision and struck out
the proceedings on the ground that they were an abuse of the process of the court and that the plaintiffs' only
proper remedy was by way of judicial review under R.S.C., Ord. 53.

On the plaintiffs' appeal to the House of Lords with leave of the Court of Appeal:-

Held dismissing the appeals,

Since all the remedies for the infringement of rights protected by public law could be obtained on an application
for judicial review, as a general rule it would be contrary to public policy and an abuse of the process of the court
for a plaintiff complaining of a public authority's infringement of his public law rights to seek redress by ordinary
action. Accordingly, since in each case the only claim made by the plaintiff was for a declaration that the board of
visitors' adjudication against the plaintiff was void, it would be an abuse of the process of the court to allow the
actions to proceed and thereby avoid the protection afforded to statutory tribunals.

Per Lord Diplock

The importance of Rex v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw is that it re-
established, largely as a result of the historical erudition of Lord Goddard C.J. displayed in the judgment of the
Divisional Court ([1951] 1 K.B. 711) a matter that had long been forgotten by practitioners and had been
overlooked as recently as 1944 in a judgment, Racecourse Betting Control Board v. Secretary for Air [1944] Ch.
114, given per incuriam by a Court of Appeal of which Lord Goddard had himself been a member. What was
there re-discovered was that the High Court had power to quash by an order of certiorari a decision of any body
of persons having legal authority (not derived from contract only) to determine questions affecting the rights of
subjects, not only on the ground that it had acted outwith its jurisdiction but also on the ground that it was
apparent upon the face of its written determination that it had made a mistake as to the applicable law.

However, this re-discovered ground on which relief by an order of certiorari to quash the decision as erroneous in
law could be obtained, was available only when there was an error of law apparent "on the face of the record"
and so was liable to be defeated by the decision-making body if it gave no reasons for its determination.

Wherever any person or body of persons has authority conferred by legislation to make decisions of the kind I
have described, it is amenable to the remedy of an order to quash its decision either for error of law in reaching it
or for failure to act fairly towards the person who will be adversely affected by the decision by failing to observe
either one or other of the two fundamental rights accorded to him by the rules of natural justice or fairness, viz. to
have afforded to him a reasonable opportunity of learning what is alleged against him and of putting forward his
own case in answer to it, and to the absence of personal bias against him on the part of the person by whom the
decision falls to be made.

So Order 53 since 1977 has provided a procedure by which every type of remedy for infringement of the rights of
individuals that are entitled to protection in public law can be obtained in one and the same proceeding by way of
an application for judicial review, and whichever remedy is found to be the most appropriate in the light of what
has emerged upon the hearing of the application, can be granted to him. If what should *284 emerge is that his
complaint is not of an infringement of any of his rights that are entitled to protection in public law, but may be an
infringement of his rights in private law and thus not a proper subject for judicial review, the court has power
under rule 9 (5), instead of refusing the application, to order the proceedings to continue as if they had begun by
writ. There is no such converse power under the R.S.C. to permit an action begun by writ to continue as if it were
an application for judicial review; and I respectfully disagree with that part of the judgment of Lord Denning M.R.
which suggests that such a power may exist; nor do I see the need to amend the rules in order to create one.

Now that those disadvantages to applicants have been removed and all remedies for infringements of rights
protected by public law can be obtained upon an application for judicial review, as can also remedies for
infringements of rights under private law if such infringements should also be involved, it would in my view as a
general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person
seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection
under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53
for the protection of such authorities.

Phonographic Performance Ltd v Department of Trade and Industry [2004] 1 WLR 2893
(The CPR 2002 and Judicial Review)
The claimant was a licensing body which owned the copyright in the sound recordings of record companies. On
10 March 2003 the claimant instituted proceedings against the Crown on the ground that it was in breach of its
European Community obligations arising under article 8(2) of Council Directive 92/100/EEC. By that article if a
phonogram was published for commercial purposes or was broadcast the performer and producer had a right to
be paid a single equitable remuneration by the user. Sections 67 and 72 of the Copyright, Designs and Patents
Act 1988 [FN1] permitted the playing of sound recordings in circumstances which would otherwise constitute an
infringement of copyright providing certain conditions were satisfied. The claimant contended that those sections
were an unlawful limitation on the right to a single equitable remuneration. Lawrence Collins J directed the
hearing of a number of preliminary issues. They included, first, whether the claimant's action arose on 1 July
1994, the date by which the United Kingdom should have implemented the Directive, and was therefore statute-
barred by section 2 of the Limitation Act 1980 [FN2]. Secondly, whether the private law action was an abuse of
process because it was essentially a public law claim which could more appropriately have been pursued in
proceedings for judicial review.

On the hearing of the preliminary issues--

Held

(1) that, since the Crown's obligation arose under the 1992 Directive and the European Communities Act 1972,
the claimant's cause of action was for breach of statutory duty. So regarded, it was a claim "founded in tort" for
the purposes of section 2 of the Limitation Act 1980 and therefore subject to the six-year limitation period. Since
damage was an essential ingredient of the claim it was not one that was actionable per se. A cause of action
accrued on 2 July 1994 but there was a continuing breach of duty giving rise to a fresh cause of action each time
the claimant suffered loss. Accordingly, the action was not statute-barred and the claimant could recover
damages for losses sustained within the six years immediately preceding the issue of proceedings on 10 March
2003 (post, paras 22-23, 28, 53).

(2) That where the remedies both of judicial review and of ordinary action were available the choice of either
might be an abuse of process. In the event of the choice being an abuse the court had jurisdiction to strike out
the claim. The exercise of that jurisdiction depended on all the relevant circumstances including matters
occurring before the proceedings were instituted and which remedy was in the circumstances the more
appropriate. A claim was not necessarily an abuse just because it involved a consideration of the duties of the
Crown under European law which might have been brought by judicial review proceedings. In the circumstances
the proceedings were a private law action which could and prima facie should be brought by an ordinary claim
accordingly, the claim was not an abuse of process (post, paras 36-37, 49, 52, 53).

Lord Woolf MR explained the effect of the CPR on the decision of the House of Lords in O'Reilly v Mackman
[1983] 2 AC 237. He said [2000] 1 WLR 1988, paras 34-38:

"34. The court's approach to what is an abuse of process has to be considered today in the light of the changes
brought about by the CPR. Those changes include a requirement that a party to proceedings should behave
reasonably both before and after they have commenced proceedings. Parties are now under an obligation to help
the court further the overriding objectives which include ensuring that cases are dealt with expeditiously and
fairly: CPR rr 1.1(2)(d) and 1.3. They should not allow the choice of procedure to achieve procedural advantages.
The CPR are, as rule 1.1(1) states, a new procedural code. Parliament recognised that the CPR would
fundamentally change the approach to the manner in which litigation would be required to be conducted. That is
why the Civil Procedure Act 1997 (section 4(1) and (2)) gives the Lord Chancellor a very wide power to amend,
repeal or revoke any enactment to the extent he considers necessary or desirable in consequence of the CPR.

"35. While in the past, it would not be appropriate to look at delay of a party commencing proceedings other than
by judicial review within the limitation period in deciding whether the proceedings are abusive this is no longer the
position. While to commence proceedings within a limitation period is not in itself an abuse, delay in commencing
proceedings is a factor which can be taken into account in deciding whether the proceeding are abusive. If
proceedings of a type which would normally be brought by judicial review are instead brought by bringing an
ordinary claim, the court in deciding whether the commencement of the proceedings is an abuse of process can
take into account whether there has been unjustified delay in initiating the proceedings.

"36. When considering whether proceedings can continue the nature of the claim can be relevant. If the court is
required to perform a reviewing role or what is being claimed is a discretionary remedy, whether it be a
prerogative remedy or an injunction or a declaration the *2905 position is different from when the claim is for
damages or a sum of money for breach of contract or a tort irrespective of the procedure adopted. Delay in
bringing proceedings for a discretionary remedy has always been a factor which a court could take into account
in deciding whether it should grant that remedy. Delay can now be taken into account on an application for
summary judgment under CPR Pt 24 if its effect means that the claim has no real prospect of success.

"37. Similarly if what is being claimed could affect the public generally the approach of the court will be stricter
than if the proceedings only affect the immediate parties. It must not be forgotten that a court can extend time to
bring proceedings under RSC Ord 53. The intention of the CPR is to harmonise procedures as far as possible
and to avoid barren procedural disputes which generate satellite litigation.

"38. Where a student has, as here, a claim in contract, the court will not strike out a claim which could more
appropriately be made under Order 53 solely because of the procedure which has been adopted. It may however
do so, if it comes to the conclusion that in all the circumstances, including the delay in initiating the proceedings,
there has been an abuse of the process of the court under the CPR. The same approach will be adopted on an
application under Part 24.

31 Sedley and Ward LJJ agreed. Sedley LJ recognised, at para 17, that to permit what is in substance a public
law challenge to be brought as of right up to six years later if the relationship happens also to be contractual will
circumvent the safeguards contained in CPR Pt 53. He added:

"the CPR now enable the court to prevent the unfair exploitation of the longer limitation period for civil suits
without resorting to a rigid exclusionary rule capable of doing equal and opposite injustice. Just as on a judicial
review application the court may enlarge time if justice so requires, in a civil suit it may now intervene,
notwithstanding the currency of the limitation period, if the entirety of circumstances-including of course the
availability of judicial review-demonstrates that the court's processes are being misused, or if it is clear that
because of the lapse of time or other circumstances no worthwhile relief can be expected."

WHO CAN BE THE PARTIES IN AN ACTION FOR JUDICIAL REVIEW?

The Crown
Ben-Abdelaziz v Haringey London Borough Council [2001] 1 WLR 1485

In January 2000 the applicants, a husband and wife from Algeria, applied for asylum on their arrival in the United
Kingdom and sought accommodation and support from the council under the relevant asylum support regulations
then in force. The council determined that despite the wife's recent pregnancy and miscarriage the applicants had
no special needs and dispersed them to Newcastle upon Tyne. In May 2000 the applicants applied for judicial
review challenging the reasonableness of the council's decision and claiming damages in accordance with
section 8 of the Human Rights Act 1998 [FN1] and section 31(4) of the Supreme Court Act 1981 [FN2] in respect
of the council's alleged breach of the applicant's rights under the Convention for the Protection of Human Rights
and Fundamental Freedoms as scheduled to the 1998 Act. On the trial of a preliminary issue the judge dismissed
the damages claim, rejecting the applicant's submission that proceedings for judicial review, being initiated by the
Crown, were "brought by or at the instigation of a public authority" within the meaning of section 22(4) of the Act
thus entitling the applicants, pursuant to section 7(1)(b), to claim damages in relation to acts committed by the
council before the coming into force of the Act on 2 October 2000.

Held, dismissing the appeal,

Judicial review proceedings were not brought by or at the instigation of the Crown, whose involvement in them
was only nominal. Such proceedings were not therefore "brought by or at the instigation of a public authority"
within section 22(4) of the 1998 Act, and the entitlement retrospectively to claim damages against a public
authority in accordance with section 7(1)(b) did not apply.

In any event section 31(4) of the 1981 Act prevented the applicants from advancing in judicial review proceedings
a claim for damages for breach of the Convention which, if advanced by way of an action, would have been
precluded by section 22(4) of the 1998 Act; and that the judge had therefore rightly concluded that the applicants
were not entitled to claim damages in respect of the council's conduct before 2 October 2000.

Lord Phillips of Worth Matravers MR

It is submitted that the claim for judicial review does not require, and has not since the end of the 16th
century required, the permission of the Crown, even in a purely formal sense.
27 Mr Gill suggested that the requirement to obtain permission before pursuing judicial review proceedings
reflected the fact that the Crown was involved. I accept Mr Chamberlain's submission that it does not, that it is
simply a matter of procedure designed to protect the court from claims which have no merit.
28 Mr Chamberlain submitted that the presence of the Crown in the heading of proceedings for judicial
review is better described as formal rather than
procedural; it is a remnant of the history of prerogative writs. He referred us to another passage from Wade
& Forsyth, Administrative Law, p 582 in support of that submission, under the heading "Prerogative remedies":
"Their hallmark is that they are granted at the suit of the Crown, as the title of every case indicates. They are
'prerogative' because they were originally available only to the Crown and not to the subject... By the end of the
16th century these remedies had become generally available to ordinary litigants (some had done so much
earlier), and an applicant could begin proceedings in the Crown's name without seeking any permission or
authority. The Crown lent its legal prerogatives to its subjects in order that they might collaborate to ensure good
and lawful government."
29 I agree with Mr Chamberlain's submissions, save that I would suggest that the better description of the
Crown's involvement in judicial review proceedings is a nominal rather than formal involvement. In reality, such
proceedings represent a contest between the applicant, who both initiates and pursues the proceedings, and the
authority against which the proceedings are brought. Judicial review proceedings are brought neither by nor at
the instigation of the Crown.

Who Comprises The Public Body?

R v Criminal Injuries Board ex p Lain [1967] 2 QB 864

Meaning of the Public Body

The widow of a police officer who died as a result of injuries sustained when shot by a suspect, applied to the
board, pursuant to the scheme, for compensation for herself and her three children. The single member who
heard the application took into consideration an interim award of £300 made to the constable, made a deduction
in respect of National Insurance pension and allowances, but made no deduction for the amount payable to the
widow by way of police pension or gratuity. He awarded the widow £300. The widow was not satisfied with the
amount of the award and at a hearing held by three members of the board it was determined, inter alia, that the
payments from the police fund should also have been deducted and, since the total of those and the National
Insurance payments to which the widow was entitled exceeded the appropriate compensation payable, the award
should be reduced to nil.

The widow applied for an order of certiorari to quash the decision for errors on the face of the record contending,
inter alia, that the board was wrong in law in deducting any part of the National Insurance and police pension
payments having regard to paragraphs 9 and 11 of the scheme; and that the three members had no power to
reduce an award made by the single member, being able only to allow the appeal and increase the award, or to
dismiss the appeal, leaving the award untouched. The board contended, inter alia, that certiorari did not lie since
the board was not a body of persons amenable to the supervisory jurisdiction of the court in that it did not have
legal authority in the sense of statutory authority, nor did it have authority to determine questions affecting the
rights of subjects in that a determination by it gave rise to no enforceable rights but gave an applicant only an
opportunity to receive the bounty of the Crown:-

Held, dismissing the motion,

The board was amenable to the supervisory jurisdiction of the High Court exercised by way of certiorari in that it
was a body of persons of a public, as opposed to a purely private or domestic character, having power to
determine matters affecting subjects and a duty to act judicially.

The fact that the board was a body of persons constituted under the prerogative and not by statute, and that a
determination by the board gave rise to no legally enforceable rights was no bar to the jurisdiction of the court.

Per Atkin L.J. in Rex v. Electricity Commissioners, Ex parte London Electricity Joint Committee Co. (1920) Ltd.
[FN26] where he stated the jurisdiction of this court in these terms:

"Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and
having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction
of the King's Bench Division exercised in these writs."

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374

Since 1947, staff employed at GCHQ had been permitted to belong to national trade unions, and most had done
so. There was a well-established practice of consultation between the official and trade union sides about
important alterations in the terms and conditions of service of the staff. On 22 December 1983, the Minister for
the Civil Service gave an instruction, purportedly under article 4 of the Civil Service Order in Council 1982, for the
immediate variation of the terms and conditions of service of the staff with the effect that they would no longer be
permitted to belong to national trade unions. There had been no consultation with the trade unions or with the
staff at GCHQ prior to the issuing of that instruction. The applicants, a trade union and six individuals, sought
judicial review of the minister's instruction on the ground that she had been under a duty to act fairly by consulting
those concerned before issuing it.

Glidewell J. granted the applicants a declaration that the instruction was invalid and of no effect. The Court of
Appeal allowed an appeal by the minister.
On appeal by the applicants:-

Held, dismissing the appeal,

Executive action was not immune from judicial review merely because it was carried out in pursuance of a power
derived from a common law, or prerogative, rather than a statutory source, and a minister acting under a
prerogative power might, depending on its subject matter, be under the same duty to act fairly as in the case of
action under a statutory power (post, pp. 399A-E,400C,407A-F,410C,411A, F-H,417G-H,418C-D,419B-C,423G-
424B).
The applicants would, apart from considerations of national security, have had a legitimate expectation that
unions and employees would be consulted before the minister issued her instruction of 22 December 1983, and,
accordingly, the decision-making process would have been unfair by reason of her failure to consult them and
would have been amenable to judicial review (post, pp. 401E-F,407F-G,412C-D,419H - 420B,423G - 424B).

However, it was for the executive and not the courts to decide whether, in any particular case, the requirements
of national security outweighed those of fairness; and that the evidence established that the minister had
considered, with reason, that prior consultation about her instruction would have involved a risk of precipitating
disruption at GCHQ and revealing vulnerable areas of operation, and, accordingly, she had shown that her
decision had in fact been based on considerations of national security that outweighed the applicants' legitimate
expectation of prior consultation.

[per Dale Staple - that delegated statutory power was not immune from judicial review since such powers would
be limited by reference to their object or procedure by which they were to be exercised. This resulted in judicial
review to ensure that decisions made pursuant to that authority was intra vires. The controlling factor in
determining whether the exercise of power was subject to judicial review was the justiciability of its subject matter
rather than whether its source was the prerogative.]

Lord Fraser of Tulleybelton

…Whatever their source, powers which are defined, either by reference to their object or by reference to
procedure for their exercise, or in some other way, and whether the definition is expressed or implied, are in my
opinion normally subject to judicial control to ensure that they are not exceeded. By "normally" I mean provided
that considerations of national security do not require otherwise.

Reg. v. Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 Q.B. 864 was such a case. In that case
Lord Parker C.J. said, at p. 881:

"I can see no reason either in principle or in authority why a board set up as this board was set up is not a body
of persons amenable to the jurisdiction of this court. True it is not set up by statute but the fact that it is set up by
executive government, i.e., under the prerogative, does not render its acts any the less lawful. Indeed, the writ of
certiorari has issued not only to courts set up by statute but to courts whose authority is derived, inter alia, from
the prerogative. Once the jurisdiction is extended, as it clearly has been, to tribunals as opposed to courts, there
is no reason why the remedy by way of certiorari cannot be invoked to a body of persons set up under the
prerogative."

That case was concerned with the actions of a board or tribunal exercising functions of a judicial character, but it
is now established that *400 certiorari is not limited to bodies performing judicial functions. In Reg. v. Secretary of
State for Home Affairs, Ex parte Hosenball [1977] 1 W.L.R. 766 which was concerned with the actions of the
Secretary of State himself in refusing to give information about the reasons for making a deportation order
against an alien, the Divisional Court and the Court of Appeal refused to make an order of certiorari because the
refusal had been based on grounds of national security but, if it had been made in what Lord Denning M.R., at p.
778, called an "ordinary case" - that is, one in which national security was not involved - the position would have
been different. Lord Denning M.R. said, at p. 781:
"if the body concerned, whether it be a minister or advisers, has acted unfairly, then the courts can review their
proceedings so as to ensure, as far as may be, that justice is done."

[A public body includes an individual who was exercising delegated powers such as a minister of government.]

R v Panel of Take-overs and Mergers ex p Datafin plc [1987] QB 815

The applicants, who were bidding in competition with N. Plc. to take over another company, complained to the
Panel of Take-overs and Mergers that N. Plc. had acted in concert with other parties in breach of the City Code
on Take-overs and Mergers. The panel dismissed the complaint and the applicants applied to the High Court for
leave to apply for judicial review by way, inter alia, of certiorari to quash the panel's decision and of mandamus to
compel the panel to reconsider the complaint. The judge refused leave on the ground that the panel's decision
was not susceptible to judicial review.
On the renewed application before the Court of Appeal, the court granting leave in order itself to consider both
the substantive application and the question of jurisdiction: -

Held,

The supervisory jurisdiction of the High Court was adaptable and could be extended to any body which
performed or operated as an integral part of a system which performed public law duties, which was supported
by public law sanctions and which was under an obligation to act judicially, but whose source of power was not
simply the consent of those over whom it exercised that power.

Although the panel purported to be part of a system of self-regulation and to derive its power solely from the
consent of those whom its decisions affected, it was in fact operating as an integral part of a governmental
framework for the regulation of financial activity in the City of London, was supported by a periphery of statutory
powers and penalties, and was under a duty in exercising what amounted to public powers to act judicially.

Therefore, the court had jurisdiction to review the panel's decision to dismiss the applicants' complaint. But since,
on the facts, there were no grounds for interfering with the panel's decision, the court would decline to intervene

[A public body is also one which, even though it does not appear to be strictly in the public domain, is an integral
part of a system that performed public law duties, is supported by public law sanctions and is under a duty to act
judicially.]
Re Preston [1985] AC 835

In 1978 an inspector in the special investigations section of the Inland Revenue informed the taxpayer that he did
not intend to raise any further inquiries on his tax affairs if the taxpayer withdrew certain claims for interest relief
and capital loss. The taxpayer withdrew the claims and paid capital gains tax on a transaction about which the
inspector had been inquiring. Following the receipt of new information in October 1979 relating to the same
transaction, the Inland Revenue Commissioners concluded that the taxpayer had received from the transaction a
tax advantage of a kind to which section 460 of the Income and Corporation Taxes Act 1970 applied, and in July
1982 they issued the taxpayer with a request for further information. On 14 September 1982 the Inland Revenue
*836 Commissioners gave the taxpayer formal notification initiating the procedure under section 460 of the Act of
1970 for the cancellation of a tax advantage. On an application by the taxpayer for a judicial review of the
notification, the judge held that the commissioners had acted unlawfully. On appeal by the commissioners, the
Court of Appeal allowed the appeal.

On appeal by the taxpayer:-

Held, dismissing the appeal,

The Inland Revenue Commissioners were amenable to the process of judicial review and a taxpayer could
challenge a decision taken by the commissioners in exercising their statutory powers and duties if he could show
that they had failed to discharge their statutory duty towards him or that they had abused their powers or acted
ultra vires. Unfairness in the purported exercise of a power could amount to an abuse or excess of power if it
could be shown that the commissioners had been guilty of conduct equivalent to a breach of contract or breach
of representation but that in the circumstances the taxpayer had failed to discharge the burden placed upon him.

Lord Templeman

Judicial review is available where a decision-making authority exceeds its powers, commits an error of law,
commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached, or
abuses its powers. Judicial review should not be granted where an alternative remedy is available.

Judicial review process should not be allowed to supplant the normal statutory appeal procedure. The present
circumstances are exceptional in that the appeal procedure provided by section 462 cannot begin to operate if
the conduct of the commissioners in initiating proceedings under section 460 was unlawful.

My Lords, it is clear that the commissioners are amenable to the remedy of judicial review in a proper case. In
Reg. v. Inland Revenue Commissioners, Ex parte National Federation of Self-Employed and Small Businesses
Ltd. [1982] A.C. 617 a group of self-employed taxpayers applied for an order of mandamus directing the
commissioners to collect tax from casual employees with whom the commissioners had made an arrangement
not to investigate tax evasion prior to 1977. In the instant case the appellant seeks an order to restrain the
commissioners from proceeding to collect the tax which they have assessed on the appellant under section 460.
In the Self-Employed case Lord Wilberforce said, at pp. 631-632:

"The Inland Revenue Commissioners are a statutory body. Their duties are, relevantly, defined in the *863 Inland
Revenue RegulationAct 1890 and the Taxes Management Act 1970. Section 1 of the Act of 1890 authorises the
appointment of commissioners 'for the collection and management of inland revenue' and confers on the
commissioners 'all necessary powers for carrying into execution every Act of Parliament relating to inland
revenue.' By section 13 the commissioners must 'collect and cause to be collected every part of inland revenue
and all money under their care and management and keep distinctive accounts thereof.' Section 1 of the Act of
1970 provides that ' Income tax ... shall be under the care and management of the commissioners.' This Act
contains the very wide powers of the board and of inspectors of taxes to make assessments upon persons
designated by Parliament as liable to pay income tax. ... From this summary analysis it is clear that the Inland
Revenue Commissioners are not immune from the process of judicial review."
Lord Wilberforce said, at p. 632, that from the authorities and from principle:
"a taxpayer would not be excluded from seeking judicial review if he could show that the revenue had either failed
in its statutory duty toward him or had been guilty of some action which was an abuse of their powers or outside
their powers altogether. Such a collateral attack - as contrasted with the direct appeal on law to the courts -
would no doubt be rare, but the possibility certainly exists." Lord Diplock stated, at p. 637:
"judicial review is available only as a remedy for conduct of a public officer or authority which is ultra vires or
unlawful, but not for acts done lawfully in the exercise of an administrative discretion which are complained of
only as being unfair or unwise ..."

Then, at p. 644, he added that the commissioners:

"are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is
the only judge. They are responsible to a court of justice for the lawfulness of what they do, and of that the court
is the only judge."

Lord Roskill said, at p. 660, that the commissioners:

"are, and must as a public body charged with the performance of a public duty of crucial importance be,
amenable to the general law and liable to possible correction if their statutory powers are exceeded, or their
statutory duties are not lawfully discharged."

WHAT DOES SUFFICIENTLY AFFECTED MEAN?

R v Liverpool City Council ex p Muldoon [1996] 1 WLR 1103

Two applicants had each sought judicial review of the refusal or failure of the Rent Officer Service and a local
authority to determine their respective claims to housing benefit. The Secretary of State for Social Security, who
was required by section 135 of the Social Security Administration Act 1992 and Regulations made thereunder to
reimburse up to 95 per cent. of local authorities' housing benefit qualifying expenditure, applied to the High Court
for an order that he be joined as a respondent to both applications as a person "directly affected" by the decision
within the meaning of R.S.C., Ord. 53, r. 5(3). [FN1] The judge dismissed the application and the Court of Appeal
dismissed the Secretary of State's appeal.

Held, dismissing the appeal,

On its true construction R.S.C., Ord. 53, r. 5(3) required a notice of motion or summons to be served on persons
who would be affected by the judicial review decision without the intervention of any intermediate agency; that
where a local authority was required, pursuant to a decision in judicial review proceedings, to pay housing benefit
to an applicant, the Secretary of State's collateral obligation to increase the authority's annual housing benefit
subsidy accordingly did not amount to an obligation to pay housing benefit to the applicant either directly or
through the agency of the local authority; and that, accordingly, the Secretary of State would be no more than
indirectly affected by the decision in the judicial review proceedings and could not be joined as a party.

Per Lord Keith of Kinkel

That a person is directly affected by something connotes that he is affected without the intervention of any
intermediate agency.

In the present case if the applications for judicial review are successful the Secretary of State will not have to pay
housing benefit to the applicants either directly or through the agency of the local authority. What will happen is
that up to 95 per cent. of the amount paid by the local authority to the applicants will be added to the subsidy paid
by the Secretary of State to the local authority after the end of the financial year. The Secretary of State would
certainly be affected by the decision, and it may be said that he would inevitably or necessarily be affected. But
he would, in my opinion, be only indirectly affected, by reason of his collateral obligation to pay subsidy to the
local authority.

WHO CAN BE AN APPLICANT FOR JUDICIAL REVIEW – THE LOCUS STANDI PRINCIPLE

IRC v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617.

Some 6,000 casual workers in Fleet Street were nominated by their trade unions to work for newspapers on
specified occasions. They were given call slips and then collected pay dockets to enable them to draw their pay
from their employers but a substantial number of them gave false names and addresses so that it was impossible
for the Inland Revenue to collect the tax which was due from them. The consequent loss to the revenue was
estimated at £1 million a year. In view of the frauds the Inland Revenue after discussions with the employers and
the unions, introduced a special arrangement which would ensure that for the future tax would either be deducted
at source or be properly assessed and made it clear that, if the arrangement were generally accepted, and
subject to certain other conditions, investigation into tax lost in certain previous years would not be carried out. A
federation representing the self-employed and small businesses, who contrasted the attitude taken by the
revenue to the tax evasions of the Fleet Street casuals with that adopted by the revenue in other cases where tax
evasions were suspected, applied for judicial review under R.S.C., Ord. 53, r. 1, [FN1] and claimed a declaration
that the Inland Revenue acted unlawfully in granting the amnesty and an order of mandamus directed to the
revenue to assess and collect income-tax from the casual workers.

Held:
It was unfortunate that the courts below had taken locus standi as a preliminary issue for whilst there might be
simple cases where it was appropriate at the earliest stage to find that the applicant for judicial review had no
interest at all, or no sufficient interest to support his application and therefore it was correct at the threshold to
refuse leave to apply, in other cases, of which the present was one, that would not be so, and the question of
sufficient interest must be taken together with the legal and factual context of the application for R.S.C., Ord. 53,
r. 3 (5) required sufficient interest in the matter to which the application related, and that matter in the present
case necessarily included the whole question of the statutory duties of the revenue and the breach or failure of
those duties of which the federation complained.

That the appeal must be allowed since looking at the matter as a whole, the Divisional Court although justified on
the ex parte application in granting leave, ought, at the hearing inter partes, having regard to the nature of "the
matter" raised to have found that ( per Lord Wilberforce, Lord Fraser of Tullybelton and Lord Roskill) the
federation merely as a body of taxpayers had shown no sufficient interest in that matter to justify its application
for relief (post, pp. 635H - 636A, 644H - 645A, C-F, 647B, 662G - 663B, 664A, D-E); (per Lord Diplock) the
federation had completely failed to show any conduct of the revenue that was ultra vires or unlawful (post, pp.
643A-B, 644G-H); (per Lord Scarman) the federation, having failed to show any grounds for believing that the
revenue had failed to do its statutory duty, had not shown an interest sufficient in law to justify any further
proceedings by the court on its application.

Per Lord Wilberforce

For all cases the test is expressed as one of sufficient interest in the matter to which the application relates. As to
this I would state two negative propositions. First, it does not remove the whole - and vitally important - question
of locus standi into the realm of pure discretion. The matter is one for decision, a mixed decision of fact and law,
which the court must decide on legal principles. Secondly, the fact that the same words are used to cover all the
forms of remedy allowed by the rule does not mean that the test is the same in all cases. When Lord Parker C.J.
said that in cases of mandamus the test may well be stricter (sc. than in certiorari) - the Beaverbrook
Newspapers case [1969] 1 Q.B. 342 and in Cook's case [1970] 1 W.L.R. 450, 455F, "on a very strict basis," he
was not stating a technical rule - which can now be discarded - but a rule of common sense, reflecting the
different character of the relief asked for. It would seem obvious enough that the interest of a person seeking to
compel an authority to carry out a duty is different from that of a person complaining that a judicial or
administrative body has, to his detriment, exceeded its powers. Whether one calls for a stricter rule than the other
may be a linguistic point: they are certainly different and we should be unwise in our enthusiasm for liberation
from procedural fetters to discard reasoned authorities which illustrate this. It is hardly necessary to add that
recognition of the value of guiding authorities does not mean that the process of judicial review must stand still.

It must follow from these cases and from principle that a taxpayer would not be excluded from seeking judicial
review if he could show that the revenue had either failed in its statutory duty toward him or had been guilty of
some action which was an abuse of their powers or outside their powers altogether. Such a collateral attack - as
contrasted with a direct appeal on law to the courts - would no doubt be rare, but the possibility certainly exists.

The position of other taxpayers - other than the taxpayers whose assessment is in question - and their right to
challenge the revenue's assessment or non-assessment of that taxpayer, must be judged according to whether,
consistently with the legislation, they can be considered as having sufficient interest to complain of what has
been done or omitted. I proceed thereto to examine the revenue's duties in that light.

The structure of the legislation relating to income tax, on the other hand, makes clear that no corresponding right
is intended to be conferred upon taxpayers. Not only is there no express or implied provision in the legislation
upon which such a right could be claimed, but to allow it would be subversive of the whole system, which
involves that the commissioners' duties are to the Crown, and that matters relating to income tax are between the
commissioners and the taxpayer concerned. No other person is given any right to make proposals about the tax
payable by any individual: he cannot even inquire as to such tax. The total confidentiality of assessments and of
negotiations between individuals and the revenue is a vital element in the working of the system. As a matter of
general principle I would hold that one taxpayer has no sufficient interest in asking the court to investigate the tax
affairs of another taxpayer or to complain that the latter has been under-assessed or over-assessed: indeed,
there is a strong public interest that he should not. and this principle applies equally to groups of taxpayers: an
aggregate of individuals each of whom has no interest cannot of itself have an interest.
Per Lord Diplock

Before the new Order 53 was substituted for its predecessor, the private citizen who sought redress against a
person or authority for acting unlawfully or ultra vires in the purported exercise of statutory powers, had to choose
from a number of different procedures that which was the most appropriate to furnish him the redress that he
sought. The major differences in procedure including locus standi to apply for the relief sought, were between the
remedies by way of declaration or injunction obtainable by a civil action brought to enforce public law and the
remedies by way of the prerogative orders of mandamus, prohibition or certiorari which lay in public law alone;
but even between the three public law remedies there were minor procedural differences, and the locus standi to
apply for them was not quite the same for each, although the divergencies were in process of diminishing.

Your Lordships can take judicial notice of the fact that the main purpose of the new Order 53 was to sweep away
these procedural differences including, in particular, differences as to locus standi; to substitute for them a single
simplified procedure for obtaining all forms of relief, and to leave to the court a wide discretion as to what
interlocutory directions, including orders for discovery, were appropriate to the particular case.

Rule 3 (5) specifically requires the court to consider at this stage whether "it considers that the applicant has a
sufficient interest in the matter to which the application relates." So this is a "threshold" question in the sense that
the court must direct its mind to it and form a prima facie view about it upon the material that is available at the
first stage. The prima facie view so formed, if favourable to the applicant, may alter on further consideration in the
light of further evidence that may be before the court at the second stage, the hearing of the application for
judicial review itself.

It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or
even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing
the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped. The
Attorney-General, although he occasionally applies for prerogative orders against public authorities that do not
form part of central government, in practice never does so against government departments. It is not, in my view,
a sufficient answer to say that judicial review of the actions of officers or departments of central government is
unnecessary because they are accountable to Parliament for the way in which they carry out their functions.
They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that
Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of
that the court is the only judge.

Per Lord Fraser of Tulleybelton

The rules of court give no guidance as to what is a sufficient interest for this purpose. I respectfully accept from
my noble and learned friends who are so much more familiar than I am with the history of the prerogative orders
that little assistance as to the sufficiency of the interest can be derived from the older cases. But while the
standard of sufficiency has been relaxed in recent years, the need to have an interest has remained and the fact
that R.S.C., Ord. 53, r. 3 requires a sufficient interest undoubtedly shows that not every applicant is entitled to
judicial review as of right.

The new Order 53, introduced in 1977, no doubt had the effect of *646 removing technical and procedural
differences between the prerogative orders, and of introducing a remedy by way of declaration or injunction in
suitable cases, but I do not think it can have had the effect of throwing over all the older law and of leaving the
grant of judicial review in the uncontrolled discretion of the court. On what principle, then, is the sufficiency of
interest to be judged? All are agreed that a direct financial or legal interest is not now required, and that the
requirement of a legal specific interest laid down in Reg. v. Lewisham Union Guardians [1897] 1 Q.B. 488 is no
longer applicable. There is also general agreement that a mere busybody does not have a sufficient interest. The
difficulty is, in between those extremes, to distinguish between the desire of the busybody to interfere in other
people's affairs and the interest of the person affected by or having a reasonable concern with the matter to
which the application relates. In the present case that matter is an alleged failure by the appellants to perform the
duty imposed upon them by statute.

The correct approach in such a case is, in my opinion, to look at the statute under which the duty arises, and to
see whether it gives any express or implied right to persons in the position of the applicant to complain of the
alleged unlawful act or omission.

The respondents are a body with some 50,000 members, but their counsel conceded, rightly in my opinion, that if
they had a sufficient interest to obtain judicial review, then any individual taxpayer, or at least any payer of
income tax, must also have such an interest. I can see no justification for treating payers of income tax as having
any separate interest in the matter now complained of from that of persons who pay other taxes. All taxpayers
contribute to the general fund of revenue and the sense of grievance which the respondents claim to feel
because of the difference between the appellants' treatment of the Fleet Street casuals and their treatment of
private traders might be felt just as strongly by any honest taxpayer who pays the full amount of taxes of any kind
to which he is properly liable. But if the class of persons *647 with a sufficient interest is to include all taxpayers it
must include practically every individual in the country who has his own income because there must be few
individuals, however frugal their requirements, who do not pay some indirect taxes including V.A.T. It would, I
think, be extravagant to suggest that every taxpayer who believes that the Inland Revenue or the Customs and
Excise Commissioners are giving an unlawful preference to another taxpayer, and who feels aggrieved thereby,
has a sufficient interest to obtain judicial review under R.S.C., Ord. 53. It may be that, if he was relying upon
some exceptionally grave or widespread illegality, he could succeed in establishing a sufficient interest, but such
cases would be very rare indeed and this is not one of them.
For these reasons I would allow the appeal on the ground that the respondents have no sufficient interest in the
matters complained of.

[If the interest is too wide so as not to relate to one single identifiable group of persons, then it is not a sufficient
interest to give locus standi.]

R v Monopolies and Mergers Commission ex p Argyll Group plc [1986] 1 WLR 763

The applicants, Argyll, were bidding in competition with Guinness to take over Distillers. Both Argyll and
Guinness put forward proposals. In February 1986 the Secretary of State for Trade and Industry referred
Guinness's bid to the Monopolies Commission for inquiry and report under section 75 of the Fair Trading Act
1973 [FN1]. Such references were normally undertaken not by the whole commission, but by a group formed in
accordance with the provisions of the Act. Guinness were prohibited by the City Take-Over Code from making a
further bid during the currency of the reference. Before the commission had embarked on its investigation,
representatives of Guinness met the chairman and gave him information, particularly as to certain of the activities
of Distillers which Guinness contemplated might not form part of a take-over by them, as a result of which he
decided that the "proposal to make arrangements such as are mentioned in the reference" had been abandoned
within the meaning of section 75(5) of the Act. Thereupon, on the chairman's recommendation, the Secretary of
State gave his consent to the reference being laid aside. Guinness then made a revised bid for Distillers which
was not referred to the commission. The applicants, as minority shareholders in Distillers, sought judicial review
by way of certiorari to quash the decision that the proposal had been abandoned and the Secretary of State's
consent to the laying aside of the reference. Macpherson J. refused the relief sought, holding that the chairman
had not misdirected himself in deciding that the reference had been abandoned, and that he had authority under
the Act to decide that issue and to recommend to the Secretary of State, on the basis of that decision, that the
reference should be laid aside.

FN1 Fair Trading Act 1973, s. 75(1)(2)(5): see post, pp. 768G-H, 769E-F, 770A-B.

On appeal by the applicants:--

Held, dismissing the appeal,

On the true construction of section 75 of the Act what was referred for investigation was the arrangements which
were in fact in progress or in contemplation at the time of the reference; that it was a question of fact and degree
whether any new arrangements subsequently put forward were sufficiently different from the arrangements which
were the subject of the reference so that it could be said that the proposed or contemplated arrangements had
been abandoned within the meaning of subsection (5), bearing in mind that the concept of merger under the Act
*764 related to the merger of activities, not of corporations; and that, accordingly, the decision that the proposals
had been abandoned was correct (post, pp. 770D-E, 771A-D, 777E-778C, 781H-782G).

(2) (Per Sir John Donaldson M.R. and Neill L.J.) that although the commission had tacitly accepted and approved
the practice of the chairman himself deciding, in the interval before a group of members had been formed to
investigate a reference, whether a particular proposal had been abandoned there was no power under the Act for
the commission to do so, and the chairman could not be said to derive any independent authority from the Act to
take such decisions (post, pp. 772G-773A, C-E, 782G-H).

(3) But that there was little doubt that a properly constituted group of members of the commission would reach
the same conclusion as had the chairman; that in view of the purpose of the Act and the fact that third parties
might have acted in reliance on the decision to lay aside the reference, and taking into account the needs of good
public administration, the court would, in the exercise of its discretion, refuse to grant judicial review.

Per Sir John Donaldson MR

R.S.C., Ord. 53, r. 3(7) provides: "The court shall not grant leave unless it considers that the applicant has a
sufficient interest in the matter to which the application relates." In terms this sub-rule applies only to the stage at
which leave is granted or refused. However, the House of Lords in Reg. v. Inland Revenue Commissioners, Ex
parte National Federation of Self-Employed and Small Businesses Ltd. [1982] A.C. 617, has introduced a two
stage test: see per Lord Wilberforce, at p. 630C, per Lord Diplock, at p. 642E, and per Lord Fraser of Tullybelton,
at p. 645E.

The first stage test, which is applied upon the application for leave, will lead to a refusal if the applicant has no
interest whatsoever and is, in truth, no more than a meddlesome busybody. If, however, the application appears
to be otherwise arguable and there is no other discretionary bar, such as dilatoriness on the part of the applicant,
the applicant may expect to get leave to apply, leaving the test of interest or standing to be re-applied as a matter
of discretion on the hearing of the substantive application. At this second stage, the strength of the applicant's
interest is one of the factors to be weighed in the balance.

In the instant case we are not concerned with the first stage test, since there can be no appeal from the grant of
leave to apply for judicial review. In any event Argyll clearly had a sufficient interest to apply for and be granted
leave. Our concern is with the second stage. Argyll are minority shareholders in Distillers and they aspire to
become sole, or at least majority, shareholders. Their interest may not represent a pure and burning passion to
see that public law is rightly administered, but that could be said of most applicants for judicial review. Indeed, if it
were the case that that was their only real interest, they would risk being branded as high-minded busybodies,
which they are not either adjectivally or substantively.

Good public administration requires a proper consideration of the legitimate interests of individual citizens,
however rich and powerful they may be and whether they are natural or Juridical persons. But in judging the
relevance of an interest, however legitimate, regard has to be had to the purpose of the administrative process
concerned. Argyll has a strong and legitimate interest in putting Guinness in baulk, but this is not the purpose of
the administrative process under the Fair Trading Act 1973. To that extent their interest is not therefore of any
great, or possibly any, weight.

Per Dillon LJ: That Argyll had a sufficient interest in order to apply for judicial review. He did not elaborate on the
point.

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112

Per Lord Bridge of Harwich. If a government department, in a field of administration in which it exercises
responsibility, *115 promulgates in a public document advice which is erroneous in law, then the court, in
proceedings in appropriate form commenced by an applicant or plaintiff who possesses the necessary locus
standi, has jurisdiction to correct the error of law by an appropriate declaration. The occasions of a departmental
non-statutory publication raising a clearly defined issue of law will be rare. (And per Lord Templeman) In cases
where any proposition of law implicit in a departmental advisory document is interwoven with questions of social
and ethical controversy, the court should exercise its jurisdiction with the utmost restraint, confine itself to
deciding whether the proposition of law is erroneous and avoid either expressing ex cathedra opinions in areas of
social and ethical controversy in which it has no claim to speak with authority or proffering answers to
hypothetical questions of law which do not strictly arise for decision.

Per Lord Fraser of Tulleybelton

My Lords, the main question in this appeal is whether a doctor can lawfully prescribe contraception for a girl
under 16 years of age, without the consent of her parents. The second appellant, the Department of Health and
Social Security ("the D.H.S.S.") maintains that a doctor can do so. The respondent, Mrs. Gillick, maintains that he
cannot. The first appellant, West Norfolk and Wisbech Area Health Authority, was not represented *163 when the
appeal reached this House, but in the Court of Appeal they were represented by the same counsel as the
D.H.S.S.

Per Lord Scarman

It was not contended that the issue of the guidance was itself a crime: the case against the department was
simply that the guidance, if followed, would result in unlawful acts and that the department by issuing it was
exercising a statutory discretion in a wholly unreasonable way; i.e. the classical "Wednesbury" case for judicial
review: Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223.
The second question is as to the propriety of proceeding in this case by ordinary civil action. Should not Mrs.
Gillick have proceeded by way of judicial review under R.S.C., Ord. 53? No point was taken at trial or in the Court
of Appeal against Mrs. Gillick that she should have proceeded not by issuing a writ, but by applying for judicial
review. Woolf J. did, however, mention the matter only to hold that there was a relevant precedent for proceeding
by writ in this House's decision in Royal College of Nursing of the United Kingdom v. Department of Health and
Social Security [1981] A.C. 800.

Per Lord Bridge of Harwich

Mrs. Gillick has no private right which she is in a position to assert against the D.H.S.S. But the point which
troubles me has nothing to do with the purely procedural technicality that the proceedings were commenced by
writ rather than by application for judicial review. I agree that no objection has been, nor could now be, raised on
that ground. My difficulty is more fundamental. I ask myself what is the nature of the action or decision taken by
the D.H.S.S. in the exercise of a power conferred upon it which entitles a court of law to intervene and declare
that it has stepped beyond the proper limits of its power. I frame the question in that way because I believe that
hitherto, certainly in general terms, the court's supervisory jurisdiction over the conduct of administrative
authorities has been confined to ensuring that their actions or decisions were taken within the scope of the power
which they purported to exercise or conversely to providing a remedy for an authority's failure to act or to decide
in circumstances where some appropriate statutory action or decision was called for.

Now it is true that the Secretary of State for Health and Social Security under section 5(1)(b) of the National
Health Service Act 1977 has a general responsibility for the provision within the National Health Service of what
may be described shortly as family planning services. But only in a very loose sense could the issue of the
memorandum be considered as part of the discharge of that responsibility. The memorandum itself has no
statutory force whatever. It is not and does not purport to be issued in the exercise of any statutory power or in
the performance of any statutory function. It is purely advisory in character and practitioners in the National
Health Service are, as a matter of law, in no way bound by it.

In the light of these considerations I cannot, with all respect, agree that the memorandum is open to review on
"Wednesbury" principles (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B.
223) on the ground that it involves an unreasonable exercise of a statutory discretion. Such a review must always
begin by examining the nature of the statutory power which the administrative authority whose action is called in
question has purported to exercise, and asking, in the light of that examination, what were, and what were not,
relevant considerations for the authority to take into account in deciding to exercise that power. It is only against
such a specific statutory background that the question whether the authority has acted unreasonably, in the
Wednesbury sense, can properly be asked and answered. Here there is no specific statutory background by
reference to which the appropriate Wednesbury questions could be formulated.

I am content to assume, without deciding, that Mrs. Gillick, in view of her dispute with the health authority, has
sufficient locus standi to contest the issue of the lawfulness of the memorandum. To succeed in her action
against the D.H.S.S. she must at least establish that, leaving aside cases of abandoned children or emergencies,
the law does absolutely prohibit the prescription of contraception for a girl under 16 without parental consent or
an order of the court.

R v Secretary of State for Foreign Affairs ex p World Development Movement Ltd [1995] 1 WLR 386

In 1988 a British consortium sought aid and trade provision ("A.T.P.") under section 1(1) of the Overseas
Development and Co-operation Act 1980 [FN1] for a project to construct a hydro-electric power station on the
Pergau river identified by the Malaysian Electricity Authority as a priority. In November the consortium submitted
a formal application with indicative costs of £315m. to the Overseas Development Administration ("O.D.A."). In
January 1989 they produced a firm contract proposal of £316m. with a United Kingdom content of £ 195m. In
early March 1989 an O.D.A. appraisal mission sent to Malaysia reported back to London, where the United
Kingdom Government made an oral offer to the Malaysian Government of A.T.P. support up to £68.25m. for the
project, conditional on a full economic appraisal. On 20 March the appraisal mission reported that at the
consortium's price of £316m., the economic viability of the project was "marginal." On 31 March the consortium
informed the O.D.A. that their budget estimate was £397m., and on 4 April the O.D.A. minuted that the project
was no longer marginal but clearly uneconomic. On 17 April the United Kingdom Government submitted to the
Malaysian Government a formal written notice of offer based on £316m. with an indication of willingness to
discuss the possibility of further assistance. In February 1990 the O.D.A. completed a further economic appraisal
which concluded that at £397m. the project would be a "very bad buy" and a burden on Malaysian consumers.
Despite O.D.A. advice that the project was an abuse of the aid programme in the terms that it was an
uneconomic project and was not a sound development project, on 26 February the Secretary of State for Foreign
and Commonwealth Affairs, who took the view that withdrawal of the offer already made would adversely affect
the United Kingdom's credibility, decided to approve A.T.P. support for the project and on 8 July the United
Kingdom and Malaysian Governments signed a financial agreement for A.T.P. support. The applicants, a
company limited by guarantee which acted as a non-partisan pressure group dedicated to improving the quantity
and quality of British aid to other countries, sought an assurance from the Secretary of State that no further funds
for the project *387 would be furnished, but he refused to give such an assurance. The applicants sought judicial
review of the Secretary of State's decision to grant A.T.P. funding and to refuse to withhold outstanding
payments.

On the question whether the applicants had sufficient interest within section 31(3) of the Supreme Court Act 1981
and R.S.C., Ord. 53, r. 3(7), [FN3] and on the application:
Held, granting the application,

Since standing went to jurisdiction it was not to be treated as a preliminary issue but was to be taken in the legal
and factual context of the whole case; that the merits of the challenge were an important, if not dominant, factor
when considering standing and that significant factors pointing to the conclusion that the applicants had sufficient
interest within section 31(3) of the Supreme Court Act 1981 and R.S.C., Ord. 53, r. 3(7) were the importance of
vindicating the rule of law, the importance of the issue raised, the likely absence of any other responsible
challenger, the nature of the breach of duty against which relief was sought and the prominent role of the
applicants in giving advice, guidance and assistance regarding aid (post, pp. 395E-396A, 403E).
Reg. v. Inland Revenue Commissioners, Ex parte National Federation of Self-Employed and Small
Businesses Ltd. [1982] A.C. 617, H.L.(E.); Reg. v. Secretary of State for Social Services, Ex parte Child Poverty
Action Group [1990] 2 Q.B. 540, C.A. and Reg. v. Secretary of State for Foreign and Commonwealth Affairs, Ex
parte Rees-Mogg [1994] Q.B. 552, D.C. applied.

It was for the court to determine on the evidence whether particular conduct was within the purpose of the Act of
1980, but, once it was determined that the conduct was within the statutory purpose, the weight to be given to
competing factors was a matter for the Secretary of State; that the power under the Act to furnish assistance
related to economically sound development, and where contemplated development was so economically
unsound that there was no economic argument in its favour, there was no material distinction between questions
of propriety and regularity on the one hand and questions of economy and efficiency of public expenditure on the
other; that, although the Secretary of State was fully entitled when making decisions whether to grant assistance
under the Act of 1980 to take into account political and economic considerations and to consider the impact on
the United Kingdom's credibility of withdrawing an offer already made, on the evidence no developmental
promotion purpose within section 1 of the Act of 1980 existed in July 1991, and the Secretary of State's decision
was therefore unlawful; and that on the facts delay was no bar to relief and in any event the general importance
of the matter was good reason for extending time within R.S.C., Ord. 53, r. 4 and delay provided no basis in itself
for refusing relief under section 31(6) of the Supreme Court Act 1981 (post, pp. 401H-402A, C-403A, B-C).

Per Rose LJ

For my part, I accept that standing (albeit decided in the exercise of the court's discretion, as Sir John Donaldson
M.R. said) goes to jurisdiction, as Woolf L.J. said. But I find nothing in Reg. v. Inland Revenue Commissioners,
Ex parte National Federation of Self-Employed and Small Businesses Ltd. [1982] A.C. 617 to deny standing to
these applicants. The authorities referred to seem to me to indicate an increasingly liberal approach to standing
on the part of the courts during the last 12 years. It is also clear from Ex parte National Federation of Self-
Employed and Small Businesses Ltd. that standing should not be treated as a preliminary issue, but must be
taken in the legal and factual context of the whole case: see per Lord Wilberforce, at p. 630D, Lord Fraser, at p.
645D and Lord Scarman, at p. 653F.

Furthermore, the merits of the challenge are an important, if not dominant, factor when considering standing. In
Professor Wade's words in Administrative Law, 7th ed. (1994), p. 712: "the real question is whether the applicant
can show some substantial default or abuse, and not whether his personal rights or interests are involved."

It seems pertinent to add this, that if the Divisional Court in Ex parte Rees-Mogg [1994] Q.B. 552, eight years
after Ex parte Argyll Group Plc. [1986] 1 W.L.R. 763, was able to accept that the applicant in that case had
standing in the light of his "sincere concerns for constitutional issues," a fortiori, it seems to me that the present
applicants, with the national and international expertise and interest in promoting and protecting aid to
underdeveloped nations, should have standing in the present application.
WHAT ARE THE GROUNDS ON WHICH TO APPLY?

Ultra Vires

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147

Before the Suez Incident and on October 31, 1956, the plaintiffs, an English company, owned property in Egypt
which was sequestrated, under the provisions of Proclamation No. 5 of 1956, by the Egyptian authorities. In
1957, the plaintiffs sold the sequestrated property to an Egyptian organisation, T.E.D.O. In 1959, the plaintiffs,
who were named in Annex E within the meaning of article 1 (2) of the Foreign Compensation (Egypt)
(Determination and Registration of Claims) Order, 1962, made an application to the Foreign Compensation
Commission claiming that they were persons entitled to participate in the Egyptian Compensation Fund in
respect of their sequestrated property. The commission's provisional determination was that they had failed to
establish a claim under the Order. The plaintiffs brought this action against the commission for declarations to the
effect that the provisional determination was a nullity and that they were entitled to participate in the
compensation fund. They contended that the commission had misconstrued the Order in finding that T.E.D.O.
was their successor in title. The commission contended that, under section 4 (4) of the Foreign Compensation
Act, 1950, the court had no jurisdiction to entertain the proceedings.

Held, (Lord Morris of Borth-y-Gest dissenting)

The word "determination " in section 4 (4) of the Act of 1950 should not be construed as including everything
which purported to be a determination but was not in fact a determination because the commission had
misconstrued the provision of the Order defining their jurisdiction. Accordingly, the court was not precluded from
inquiring whether or not the order of the commission was a nullity.

*149 Per Lord Wilberforce

Just as it is the duty of the court to attribute autonomy of decision to the tribunal within the designated area, so
the counterpart of this autonomy is that the court must ensure that the limits of the area laid down are observed
(post, p. 208B).

Per Lord Morris of Borth-y-Gest.

The commission were acting within their jurisdiction when they entertained the application. They did not fail to
obey any mandatory injunction of the Order and if in reaching an honest conclusion in regard to a question of
construction, they made an error, such an error would be one made while acting within the jurisdiction and in the
discharge of their function within it (post, p. 194B-C).

Held, further (Lord Pearson dissenting)

The applicant having satisfied the listed requirements of the Order, it was outside the jurisdiction of the
commission to consider whether or not the applicant had a successor in title and in this the commission
misconstrued article 4. The expression "successor in title" was inappropriate to denote any person while the
original owner was still in existence.

Per Lord Pearce. A successor in title to a person is different from a successor in title to a part of his property
(post, p. 203H).

Held, further, that the appellants were entitled to the declarations sought.

This case according to Albert Fiadjoe represents an example where the statute provides grounds of appeal which
encompass grounds for judicial review so that what may constitute an error of law on appeal can equally pass for
an error in law in judicial review proceedings.

A grievous error by a tribunal may be so egregious as to go to its jurisdiction and thus render its decision ultra
vires. Though such an error may not appear on the face of the record, it is still permissible to quash such a
determination.

This case expanded the scope of judicial review for jurisdictional error by jettisoning the preliminary or collateral
question approach. Instead it settled for the view that the decision of an administrative tribunal could be set aside
on jurisdictional grounds if it asked itself the wrong question or made an error of law which took it outside its
jurisdiction. In such a case, an ouster clause does not protect a decision made by the tribunal from challenge.

Error on the Face of the Record

R v Northumberland Compensation Appeal Tribunal ex p Shaw [1952] 1 KB 338

By the passing of the National Health Service Act, 1946, the applicant, Thomas Shaw, lost his employment as
clerk to the West Northumberland Joint Hospital Board. Aggrieved by the amount of compensation awarded to
him by the compensating authority, the Gosforth Urban District Council, he referred the matter to the tribunal
designated by the National Health Service (Transfer of Offices and Compensation) Regulations, 1948.

It became the duty of the tribunal to consider the matter so referred "in accordance with the provisions "of the
regulations and "to determine accordingly whether any and, if so, what compensation ought to be awarded to the
claimant" (see regulation 12). The tribunal therefore were bound by the definition of "service" contained in the
regulations.

The order of the tribunal set out the period of the applicant's service with the hospital board as being from
October 7, 1936, to March 31, 1949. It set out the contention of the compensating authority that the
compensation payable should be based on that period of service with the hospital board, and the tribunal stated
that they agreed that this service was the only service to be taken into account. The decision did not set out the
contention of the applicant, who was clerk to the Gosforth Urban District Council, that the whole of his local
government service should be taken into account. And the tribunal dismissed the appeal from the decision of the
compensating authority.

Thereupon the applicant applied to the Divisional Court for an order of certiorari to remove the decision of the
tribunal into the King's Bench Division that it might be quashed. Before the Divisional Court it was admitted by
counsel for the tribunal that there was error on the face of the decision given by the tribunal, but he contended
that certiorari would lie to such a statutory tribunal only in the case of want or excess of jurisdiction. The
Divisional Court granted the order for certiorari [FN1] and the tribunal appealed.

Held

An order for certiorari can be granted by the Divisional Court to bring into the King's Bench Division to be
quashed a decision of an inferior court, such as a statutory tribunal, on the ground of error on the face of the
record.

Per Denning LJ

The statutory tribunals, like this one here, are often made the judges both of fact and law, with no appeal to the
High Court. If, then, the King's Bench should interfere when a tribunal makes a mistake of law, the King's Bench
may well be said to be exceeding its own jurisdiction. It would be usurping to itself an appellate jurisdiction which
has not been given to it. The answer to this argument, however, is that the Court of King's Bench has an inherent
jurisdiction to control all inferior tribunals, not in an appellate *347 capacity, but in a supervisory capacity. This
control extends not only to seeing that the inferior tribunals keep within their jurisdiction, but also to seeing that
they observe the law. The control is exercised by means of a power to quash any determination by the tribunal
which, on the face of it, offends against the law. The King's Bench does not substitute its own views for those of
the tribunal, as a Court of Appeal would do. It leaves it to the tribunal to hear the case again, and in a proper
case may command it to do so. When the King's Bench exercises its control over tribunals in this way, it is not
usurping a jurisdiction which does not belong to it. It is only exercising a jurisdiction which it has always had.

Of recent years the scope of certiorari seems to have been somewhat forgotten. It has been supposed to be
confined to the correction of excess of jurisdiction, and not to extend to the correction of errors of law; and
several judges have said as much. But the Lord Chief Justice has, in the present case, restored certiorari to its
rightful position and shown that it can be used to correct errors of law which appear on the face of the record,
even though they do not go to jurisdiction. I have looked into the history of the matter, and find that the old cases
fully support all that the Lord Chief Justice said. Until about 100 years ago, certiorari was regularly used to
correct errors of law on the face of the record. It is only within the last century that it has fallen into disuse, and
that is only because there has, until recently, been little occasion for its exercise. Now, with the advent of many
new tribunals, and the plain need for supervision over them, recourse must once again be had to this well-tried
means of control.
Breach of Rules of Natural Justice

Ridge v Baldwin [1964] AC 40

In 1956 the appellant was appointed chief constable of a borough police force, the appointment being subject to
the Police Acts and regulations. On October 25, 1957, he was arrested and charged, together with other persons,
with conspiracy to obstruct the course of justice. On October 28, 1957, he was suspended from duty by the
borough watch committee. On February 28, 1958, he was acquitted by the jury on the criminal charges against
him, but Donovan J. in passing sentence on two police officers who were convicted, said that the facts admitted
in the course of the trial "establish that neither of you had that professional and moral leadership which both of
you should have had and were entitled to expect from the chief constable." On March 6, 1958, on a charge
alleging corruption against the appellant, on which no evidence was offered, the judge referred to the borough's
police force and remarked on its need for a leader "who will be a new influence and who will set a different
example from that which has lately obtained." After his acquittal the appellant applied to be reinstated, but on
March 7, 1958, the watch committee at a meeting decided that he had been negligent in the discharge of his
duties as chief constable and, in purported exercise of the powers conferred on them by section 191 (4) of the
Act of 1882, dismissed him from that office. No specific charge was formulated against him, either at that meeting
or at another on March 18, when the appellant's solicitor addressed the committee, but the watch committee, in
arriving at their decision, considered (inter alia) his own statements in evidence and the observations *42 made
by Donovan J. on February 28 and March 6. On the appellant's appeal to the Home Secretary, the decision given
was "that there was sufficient material on which the watch committee could properly exercise their power of
dismissal under section 191 (4)." The appellant then brought an action against members of the watch committee
for a declaration that his dismissal was illegal, ultra vires and void, and payment of salary from March 7, 1958, or,
alternatively, payment of pension from that date and damages:-

Held, (Lord Evershed dissenting), that the decision of the respondents to dismiss the appellant was null and
void; and that, accordingly, notwithstanding that the decision of the Home Secretary was "final and binding on the
parties " by section 2 (3) of the Police Appeals Act, 1927, that decision could not give validity to the decision of
the respondents (post, pp. 81, 125, 135, 139).

The decision of the respondents was a nullity (post, pp. 81, 117, 125, 135, 139), since:

Per Lord Reid, Lord Morris and Lord Hodson. the appellant was not the servant of the respondents and they
could dismiss him only on grounds stated in section 191 (4) of the Act of 1882, and they dismissed him on the
ground of neglect of duty, they were bound to observe the principles of natural justice (post, pp. 66, 79, 121, 124,
127, 132) by informing the appellant of the charges made against him and giving him an opportunity of being
heard, and that they had not done.

Per Lord Reid, Lord Morris, Lord Hodson and Lord Devlin. The requirements of the discipline regulations code
made under the Police Act, 1919, although they did not operate in cases of dismissal under the Act of 1882 for
inefficiency or inadequacy, did apply to a case such as this where a charge of misconduct was involved and,
accordingly, on this ground also the purported dismissal was a nullity. The expression "report or allegation" which
under the discipline regulations must precede the investigation of charges under those regulations should be
given a wide meaning (post, pp. 79, 110, 113, 133, 135, 137).

Per Lord Devlin. I cannot regard the power of dismissal under

article 11 (1) of the Police (Discipline) (Deputy Chief Constables, Assistant Chief Constables and Chief
Constables) Regulations, 1952, as something distinct from the power of dismissal under section 191 (4), and I
think that the effect of article 11 (1) is to make the power of dismissal conditional on the receipt of the report
submitted to the police authority by the tribunal appointed under the regulations (post, p. 139).

Per Lord Devlin (agreeing with Lord Evershed). If this matter fell to be decided on the ground of a breach of the
principles of natural justice, such a breach would render the decision to dismiss voidable and not null and void ab
initio.
Unreasonableness/Irrationality

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

By s. 1, sub-s. 1, of the Sunday Entertainments Act, 1932, an authority having power in any area to grant
licences for cinematograph performances under the Cinematograph Act, 1909, is given power to allow a licensed
place to be open and used on Sundays, "subject to such conditions as the authority think fit to impose."
When a local authority granted to the plaintiffs leave for Sunday performances subject to the condition that no
children under fifteen years of age should be admitted to Sunday performances with or without an adult:-

Held,

The local authority had not acted unreasonably or ultra vires in imposing the condition.
In considering whether an authority having so unlimited a power has acted unreasonably, the court is only
entitled to investigate the action of the authority with a view to seeing if it has taken into account any matters that
ought not to be or disregarded *224 matters that ought to be taken into account. The court cannot interfere as an
appellate authority to override a decision of such an authority, but only as a judicial authority concerned to see
whether it has contravened the law by acting in excess of its power.

Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240

The respondents felt that their expenditure targets had been set at unfairly low levels. They applied for judicial
review of the Secretary of State's guidance on the ground that it was unlawful in that, in differentiating as it did
between authorities budgeting to spend above or below GRE, it was not "framed by reference to principles
applicable to all local authorities" as required by section 59(11A) of the Act of 1980 (as amended); [FN2]
alternatively, that the Secretary of State had exercised his power to give the guidance unreasonably in that the
guidance was disproportionately disadvantageous to a small group of authorities whose 1984-85 guidance was
below GRE and who were budgeting to spend above GRE. Kennedy J. dismissed the applications. The Court of
Appeal allowed appeals by the respondents on their first ground.

Held inter alia

That in the absence of some exceptional circumstance such as bad faith or improper motive on the part of the
Secretary of State it was inappropriate for the courts to intervene on the ground of "unreasonableness" in a
matter of public financial administration that had been one for the political judgment of the Secretary of State and
the House of Commons.

Improper Delegation

Re Sarran – Held that where the Public Service Commission of Guyana delegated to a Permanent secretary the
power to hold an inquiry into the conduct of a public officer, the Permanent Secretary may not re-delegate that
power to another officer. Where a prima facie case of a violation of constitutional provisions has been made out,
the writ of certiorari should issue even to a domestic tribunal. Appeal Allowed.

Glasgow v. Cadogan – appellant was convicted in a magistrates court for failure to pay wages alleged to be due
to the defendant. Complaint brought under s. 22 of the Employers and Servant’s Ordinance which provides a
penalty on an employer for failing to pay wages to a labourer within 14 days after they became due. It also
provided that no contract for service could be enforced unless the labourer had been registered by a person
appointed by the governor for that purpose. JW was appointed and delegated his power to AW.

Held: that the person had no such powers of delegation.

Failure to Give Reasons

See duty to state reasons under faculty of law year 2