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© Liam Porritt 2020 1
Judicial Review – Prelims
Administrative law and JR
• Administrative law relates to exercise and control of governmental power
• JR = the mechanism by which the courts are able to scrutinise the legality
of and the procedure by which a decision was reached by a public
authority or official
o … as opposed to scrutinising the merits of judicial decisions
themselves (decided on appeal)
• JR premised on ultra vires principle = public bodies and officials can only
act where they have legal powers to do so
1. Amenability – public body?
2. Procedural exclusivity – not an issue in the exam, so mention quickly and
move on
3. Standing? – applicant
o Here, broader approach than for HR ~ need not be directly
affected (victim) ~ here = ‘sufficient interest’
4. Time limits
5. Ouster clause
© Liam Porritt 2020 2
• Per CPR r 54.1 (2)(a)(ii), a decision will be amenable to JR where it is in
the exercise of a public function.
Application to public body (executive) exercising power under statute
• Here, there is a public body making a public law decision, which is thus a
public function.
• Per Datafin, where the body’s source of power is legislation, the decision
will be amenable, as is the case here.
Application to regulatory bodies
• Here, there is a regulatory body.
• Per Datafin, what is relevant is not the source of the power but the nature
of the power.
• Thus, a function regulating an important aspect of national life in a way
that is ‘governmental’ (i.e. where but for the existence of the body,
government would perform the function) will be amenable.
• R v Panel of Take-overs and Mergers, ex parte Datafin
o Panel set up by financial services industry in the City to selfregulate, rather than by statute = source of power meant it did not
prima facie fall within JR remit
o Datafin wanted to perform takeover and this was blocked by Panel,
so challenge procedure by which decision reached
• R v ASA, ex p. Insurance Services plc = governmental function in regulating
advertising to prevent public from being misled
• R v Bar Council, ex p. Percival = regulate barristers, and as an independent
legal group who exercise an important public function, key to
dissemination of justice = clearly public function, and government
would step in if this did not exist
• R v Football Association, ex p. Football League – public function but
government would not step in here
• R v Disciplinary Committee of the Jockey Club, ex p. Aga Khan – set up
under a Royal Charter, it has public powers, but not governmental
powers, as its members agree to be bound by the Rules of Racing + thus
have private rights that could be brought in a private action = no JR
• R v Chief Rabbi of United Hebrew Congregation of GB and Commonwealth,
ex p. Wachmann – would not pronounce on internal matters within the
Jewish faith
© Liam Porritt 2020 3
Contracting out by local authority to private body
R v Servite Houses & London Borough of Wandsworth, ex p. Goldsmith
• Facts:
o Goldmith put in residential accommodation for the elderly
o Sevite Houses decided to shut it down
o Council had discharged statutory functions by making alternative
arrangements for G’s care
o Care home purely private, with statutory regulation not impinging
on the way S provided care, only applying to local authorities
o No JR
R (on the application of A) v Partnerships in Care
• Facts:
o Private psychiatric hospital – managers decide to change focus of
ward from providing psychotherapeutic services to treating
patients with mental illness
o Applicant unhappy about care
o Mental Health Act applies not only to council, but also to the
general admission of patients into care (s 3 MHA 1983) = as
statute applies, this is deemed to be a public “governmental”
• Where there is a statutory provision that underpins the exercise of
the function, it will be deemed to be public and thus amenable to JR.
(For G4S providing security on behalf of a local authority ~ it would not be a
public body for JR, but would be a hybrid public authority for HRA. There is
proximity between the tests but they are not the same (as affirmed in Aston).)
© Liam Porritt 2020 4
Procedural Exclusivity
• Here, there is a public law decision, so JR is the only procedure available
for challenging the decision (O’Reilly v Mackman), as in O’Reilly where
the challenge was to the decision of a prison governor.
o (NB show knowledge of the facts in the case with a brief sentence
like this in the exam.)
o Action against governor for taking away prisoners’ rights to early release
o Claim that this was heavy-handed
o This is a question of public law and so challenge must be brought under JR, not
under a private claim
Exceptions to procedural exclusivity (O’Reilly)
1. Where neither of the parties object to a private law procedure, there is no need to use JR
Ø If there is no abuse of process in following either route (private or JR), there is
no issue (Mercury Communications v D-G of Telecommunications)
2. Where challenge to public law arises alongside a legal claim based on private rights (Roy
v Kensington and Chelsea and Westminster FPC)
Ø Here, Dr Roy’s pay reduced under statutory provision ~ Dr Roy brought private
action for breach of contract (under right to be paid for work done) and thus the
ancillary consideration of the FPC’s decision under public law did NOT mean JR
was necessary
§ Pragmatic approach taken by the court such that where there may be
private and public law matters, in the interest of efficacy
and pragmatism, the courts will allow the action to be
brought in either civil court or JR.
Ø Confirmed under the Civil Procedure Rules 1998, as stated in Clark v University
of Lincolnshire – contractual route can be used where public and private law
Raising public law as a defence
• Under exception 2 above, defences relating to public law can be brought in private cases
(Wandsworth LBC v Winder)
o Here, Winder paid rent he believed to be reasonable + was sued by council for
rent arrears; he argued in defence that the Council had acted ‘unreasonably’ in
increasing rent (Associated Provincial) = defence allowed to be made in private
law case
• Defences challenging validity of measures taken by public authorities (here bylaws
relating to smoking on trains) allowed in criminal proceedings
© Liam Porritt 2020 5
• Per Senior Courts Act 1981, s 31(3), the permission of High Court to
proceed to inter-parties arguments is based on the party having a
sufficient interest in the matter.
• Fleet Street Casuals establishes that this is interpreted liberally, requiring
a logical connection between the applicant and the decision.
1. If directly affected, the applicant will be given standing (R v Secretary of
State for Home Department, ex p. Venables)
Ø Here, murderers of James Bulger have standing re: tariff sentence
set by Home Secretary, as directly affected
2. If not directly affected, a merits test will be applied.
Ø This seeks to turn away ‘busybodies, cranks and other mischiefmakers’, while avoiding the lacuna in the law that would exist if
those not directly effected could not bring a claim.
IRC v National Federation of Self-Employed and Small Businesses (the ‘Fleet Street Casuals’ case)
• Facts
o Casual workers at London newspapers
o IRC come after workers as workers were not paying taxes
o Amnesty offered = start paying now and we will not go after you for previously
unpaid tax
o National Federation for small businesses then approached IRC and asked for the
same treatment (i.e. amnesty as regards previous tax that should have been
o This was refused to NF, as they did not have proximity to decision made in
favour of casual workers + the IRC was within its statutory powers, so the NF
had a prima facie weak case
Standing of different bodies
• Associations of individuals who would all themselves be seen to have a
sufficient interest have standing (R v Liverpool Corporation, ex p. Liverpool
Taxi Fleet Operators’ Association)
o Liverpool Corporation said they would consult Drivers’
Association before raising of licence numbers, and did not
© Liam Porritt 2020 6
Pressure groups
• NB if peer group is directly affected, it clearly has a sufficient interest (s
31(3)), so there is not need to go into detail on these cases.
• Restrictive approach initially adopted, whereby a JR challenge could only
be brought by someone with a greater right or expectation than other
citizens (R v Environment Secretary, ex p. Rose Theatre Trust Co Ltd)
o Campaign to have archaeological site listed as ancient monument
was unsuccessful
o Rose Theatre Trust created in order to challenge the decision
o Standing refused => no greater rights than other citizens re:
archaeological site
R v Environment Secretary, ex p. Greenpeace Ltd
• More liberal approach
o Challenge to variation on licence of nuclear plant
o Greenpeace best placed to bring challenge
• Factors to consider from Greenpeace
o National / international standing and knowledge of the pressure
o Genuine concern in the matter in question
o Existence of supporters / members of the pressure group in the
area affected (here, 2,500 supporters in Cumbria)
o Existence of another group able to bring the challenge to court
(here, no group or association better placed than GP)
R v Secretary of State for Foreign and Commonwealth Affairs, ex p. World
Development Movement Ltd
• WDM sought JR of decision to grant money to Malaysia for hydro-electric construction
project using powers in Overseas Development and Co-operation Act 1980
• Factors in giving standing in WDM
o Importance of vindicating RoL
o Prominent role of WDM in advising on overseas aid
o Nature of potential breach of duty => gravity of the breach +
strength of prima facie case
o Absence of other responsible challenger
R (on the application of Corner House Research and another) v Director of the
Serious Fraud Office [2008]
• Challenge to legality of Director’s decision to halt investigations into
allegations of bribery in relation to arms contracts with Saudi Arabia
• Standing given to:
o Corner House ~ research + campaign group for social justice
o Campaign Against Arms Trade ~ political lobbying group
© Liam Porritt 2020 7
Individuals: concerned citizens
• Rees-Mogg, as frequent journalist about EU membership, given standing
to challenge signing of the Maastricht Treaty (R v Secretary of State for
Foreign and Commonwealth Affairs, ex p. Rees-Mogg)
• Challenge to planning permission to extend limestone quarry – standing
given to concerned citizen, as good case, in spite of lack of greater right or
expectation (against Rose Theatre) (R v Somerset CC, ex p. Dixon)
• Chair of local organisation formed to oppose road scheme must have
standing to challenge road scheme on environmental grounds (to
preserve RoL, in spite of lack of greater rights or expectation) =>
strength of the case + lack of anyone else (Walton v Scottish Ministers)
• Father of murder victim does not have standing in a review of the
sentencing of the defendant, as he did not have a sufficient interest (R v
Secretary of State for the Home Department, ex p. Bulger)
• Where there are individuals more directly impacted than the applicant
who could bring a challenge, the applicant is unlikely to be given standing
(R (DSD and NBV and others) v The Parole Board)
o Mayor of London seeking to challenge decision of Parole Board to
release John Worboys
o In spite of his genuine interest + statutory duties, his interest in
Parole Board decision not specific enough for him to be given
standing ~ DSD and NBV better placed
‘Not substantially different’ test
• S 31(2A) SCA 1981, amended by Criminal Justice and Courts Act 2015 – standing (+
damages) must not be given if it appears highly likely that the outcome for the applicant
would not have been substantially different if the conduct complained of had not
occurred’ ~ i.e. small breaches in procedure that would not affect decisions should not
be submitted to JR
Standing and HRA 1998
• Where head of illegality for JR action = HRA 1998, s 6(1), ‘victim’ test should be used
Time Frame
• Application to the Administrative Court must be filed promptly and
within 3 months after grounds to make the claim first arose (CPR Part
o Can be refused within 3 months if not deemed to be prompt, i.e. if
the court deem there to be undue delay
• Time can be extended by the court pursuant to CPR Part 3.1(2)(a)
• CPR (Amendment No 4) 2013:
o Planning decisions – 6 weeks
o Public procurement – 30 days
• Short delays acceptable to ECtHR (Lam v UK)
© Liam Porritt 2020 8
Ouster Clauses
• Legislative provisions which appear to exclude the jurisdiction of the
court to conduct JR
Total ouster clause
• Courts hostile to total ouster clauses, as challenge to RoL
• Strong judicial presumption that Parliament does not intend to exclude JR
Anisminic v Foreign Compensation Commission
• Foreign Compensation Act provided that determinations by FCC ‘shall not
be called into question in any court of law’ (s 4(4))
• HoL: ouster clause did not prevent Anisminic challenging FCC
determination on grounds that FCC had misconstrued the Order, as s 4(4)
should not be construed as including everything which purported to
be a determination, but was not in fact one because the FCC had
misconstrued the Order defining its jurisdiction ~ i.e. there may be JR
as to whether a decision is a valid determination, but if it is a
determination, it may not be questioned
• In spite of possible challenge to this in the Court of Appeal decision in R
(Privacy International) v IPT, that Supreme Court recently overturned that
decision and endorsed the Anisminic approach
Time Limit Ousters (Partial Ousters)
• Legislative provision that appears to exclude jurisdiction of the court
after time limit has expired
• These are applied by the courts, with actions after time limit struck out
(Smith v East Elloe RDC)
• Reinforced by Civil Procedure r 54.5(3)
• R (London Borough of Hillingdon and others) v Secretary of State for Transport – struck
out JR vs third runway at Heathrow b/c challenge only permitted within 6 weeks of
publication of National Policy Statement; at time, there was only a draft NPS, so no claim
could be brought
• Art 6(1) ECHR: provides right to effective access to a court ~ can only be restricted in
pursuit of legitimate aim + proportionate
• Where very short, possible that there could be declaration of incompatibility
• Matthews v Secretary of State for Environment, Transport and Regions – 6-week time limit
= fine, as legitimate pursuit of finality + proportionate
© Liam Porritt 2020 9
Exhaustion of alternative remedies
• JR only where no alternative remedy (e.g. through appeals procedures of tax statutes) (R
v IRC, ex p. Preston – allowed as these appeals did not apply to Preston)
• If a significant part of the issues between the parties can be resolved outside litigation, JR
should be avoided (R (Cowl) v Plymouth CC – statutory complaints panel could have
resolved most issues)
1. Quashing order – quashing impugned decision
2. Prohibitory order – preventing public body from acting or continuing to
act ultra vires, unreasonably or unfairly
3. Mandatory order – compelling the public body to perform a public law
4. Declaration – statement of the legal position
5. Injunction – ordering a party to perform / retrain from performing
6. Damages – where court satisfied that damages could have been awarded
in a private law action
• 1-3 = ‘prerogative orders’ specific to JR
• Remedies are discretionary to counterbalance widening of applicants to
JR (and potential for busybodies to seek damages where they have little
actual interest)

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