1. Define the term Judicial Review? (5)

The term Judicial Review was pellucidly explained by Lord Diplock in the paradigmatic case of CCSU v The Minister for the Civil Service (HL), whereby it is when the court is merely verifying the power of the body who made the decision and not the merits of the decision so to speak. Put simply, it occurs when the court reviews a decision made by a public/statutory body to ensure they weren’t acting ultra vires, illegally or irrationally when coming to said decision. It is important to note a statutory/public body is one whose powers are derived from statutes, thus their existence is due to the law. For example, in Congrieve v. The Home Office, the Minister, had a statutory power under a particular Act to revoke television licenses and used this power to revoke a few licenses to avoid an increase. It was held the Minister acted ultra vires and used his power for an improper purpose. Here, the courts weren’t concerned with the Minister’s decision to revoke licenses as he had the authority to do so, but rather with if he could use such power in this instance due to ‘avoiding an increase’.

2. In order for a litigant to be successful in a case for Judicial Review what must the litigant prove? [Make reference to Part 56 of The Civil Procedure Rule of the Supreme Court which speaks about locus standi etc etc), the prospect of success as well as reference to A PUBLIC BODY as the Defendant (15)

According to Part 56.2 of The Civil Procedure Rule of the Supreme Court an application for judicial review can be made by a person, group or body which has considerable interest in the subject matter at hand, otherwise known as locus standi. This person/body/group must appeal to the Attorney General and if accepted, AG will apply to the high court (relator action).

In order to be successful the following must be proven:

*locus standi (a sufficient interest in the decision as mentioned previously)

*a good prima facie case

*the litigant must have been directly affected by the decision made by the public/statutory body

*The litigant is going against a public body, not private.

The following documents must be provided by the litigant in order to file for judicial review:

1.NOA: a notice of application of court order

2.An affidavit: sets out what the evidence/facts are in the case

3.An affidavit of urgency: so that the court can take care of it quickly

These are necessary for the court to see if the litigant’s claim makes sense and if there are no other remedies, aside from what the litigant is requesting, available.

3. With the aid of decided cases, identify any 4 grounds for judicial review (2 of which must be breach of the rules of natural justice and ultra vires) (35)

Within judicial review there are six grounds; Ultra Vires, Abuse of Power, Breach of Natural Justice, Breach of Legitimate Expectation, Illegality and Unconstitutionally.

To begin, ultra vires simply means outside of one’s boundaries or scope. It occurs when a public body makes a decision that exceeds the power given to him. There are two main instances, namely; Improper Delegation and Conditional requirement. Improper delegation occurs when the person/body the public body assigns a task to, performs said duty in an inappropriate manner or uses power belonging to the public body only. In the quintessential case of Allingham v Minister of Agriculture and Fisheries, M was allowed to delegate in terms of cultivating land, and did so to a committee who further sub delegated to an officer. The officer told A to not plant a crop in an area, after A refused, the officer imposed a fine. The court quashed the conviction, as the officer did not have the right to impose a fine because the power rests only with the Minister himself. As such he used power belonging only to the Minister which was ultra vires.

Another crucial case to further portray the matter seminally is R. v. DPP ex p. Association of First Division Civil Servants. Here, the delegation of particular functions under a certain Act to non lawyers was held ultra vires as that power only rested in the hands of  fully fledged lawyers, non lawyers cannot use such power, else it would be beyond their scope.

Secondly, Conditional requirement simply means the statutory body cannot use its power until a particular condition or set of events has occurred. The leading case of Secretary of State for Education and Science v. Tameside Metropolitan is a prime example. Whereby the Minister had the power to take over certain education functions if the local education authority acted beyond his means. The Minister intervened without said requirement and the courts held he was acting ultra vires. Hence, if the predetermined condition isn’t met and this statutory body uses its powers, it would have been said to have acted ultra vires.

Continuing, abuse of power offers a wide scope as it pertains to being a ground to file judicial review. There are four aspects: irrelevant consideration, improper purpose, bad faith and unreasonableness. If either one of these are met, it is considered abuse of power, thus ultra vires and a ground for judicial review. A brief example of this ground in terms of irrelevant consideration is R v ILEA ex parte Westminster City Council, whereby the local authority had a responsibility to publish information to the public in relation to central government. They tried to pursue people into a particular way of thinking, thus the courts established their decision was improper as they took into consideration irrelevant materials. A newspaper agency has an obligation to be unbiased and post with an open mindset, not to lean to one political party or one view of things as this would influence the people to do so, which would be unfair and illegal. Hence, the decision by The Council was ultra vires.

Thirdly, there are certain cases where the courts will imply that when a public body makes a decision it must be done fairly and justly according to the principles of natural justice. Thus, a breach of this will result in an eligible claim for judicial review. There are two rules that outline natural justice and must be adhered to; The Nemo Judex Rule and The Audi Alteram Partem Rule. The former states that if you have an interest in the matter/close to the matter/know someone in the matter, you can’t judge the case, whilst the latter entails the right to a fair hearing including the right to; have a lawyer of your choice represent you, be notified adequately of your hearing and be notified of what the charges are and the details. If any decision made by the statutory body goes contrary to these rules it is said to be a Breach of Natural Justice.

It was later held that natural justice wasn’t applicable unless either, (a) the decision being taken affected an individual's legal rights; (b) the decision was being taken by a body which had a duty to act judicially. Yet, currently both must be met and only in the case of judicial matters, not administrative ones.

In the landmark case of Nakkuda Ali v Jayarantne, natural justice was excluded in licensing decisions as a licence was a privilege and not a right. Natural justice as stated before, is concerned with what is owed to the litigant by the law, and not luxuries such as licenses. Thus, there was no breach of natural justice as no rights were infringed upon.

Subsequently, breach of legitimate expectation was detailed in the paradigmatic case of Kent Garment Factory v AG. It states that if a public body departs from a particular action relating to a citizen, whereby the body had led them to believe or expect it to be pursued and in which failure to do so would adversely affect their property or liberty and without adequate notice and allowance for the citizen to be heard, the citizen would successfully have met the requirements for this ground. Marks v Minister of Home Affairs compendiously portrays this ground. Here, M worked in Country B and S, and returned to B to secure a work permit which was for one year. He eventually set up his small practice which was successful and consistently year after year when he’d renew his permit one year was given. One year he was to renew it, the minister renewed the permit for only 6 months. It was alleged the reduction was due to jealousy. M was therefore given the legitimate expectation from the Minister to receive a one year permit after repeatedly receiving it in the past. The public body failed to advise M as to the factors that prevented him to receive the one year permit and a chance to be heard, as according to the grounds principles. Thus, fairness was absent and M succeeded.

Finally, for informative purposes the remaining breaches are defined as: illegality occurs when the decision made by the public body was against the law, therefore illegal and unconstitutionally entails the decision going contrary to the constitution or breaches its fundamental rights for citizens.

4. With the aid of decided cases, define the terms Certiorari, Mandamus, Prohibition and Declaration? [ Your answer should include the restrictions when they are to be used] (35)

The remedies available for judicial review range from prerogative (Certiorari, Mandamus, Prohibition) and non prerogative (Declaration). To begin, prerogative orders are those that are only found in public law, these remedies will not attempt to control private bodies.

To continue, Certiorari is used to quash the decision of statutory bodies, in other words, to make it as if the decision was never in existence in the first place. It can be used in the following instances:

1.When the body acts ultra vires: In the quintessential case of R. v. London C.C., a decision made by a particular local authority whom authorised a cinema to be open on Sundays was quashed as it was seen as ultra vires to force a company to do such an act.

2.Where the rules of natural justice are breached: As in the seminal case of R. v. Sussex Justices, a conviction for dangerous driving was quashed for breach of the nemo judex rule, which states that no man must be a judge in his own hearing. This implies the body who made the conviction of the defendant was close to the matter, thus breached the rules of natural justice.

3.Where there is error of law on the face of the record: This simply means the law was used in the wrong context or the wrong legislation was applied. Take R. v. Northumberland Compensation for example, here in assessing the amount of compensation owed to Shaw, misinterpreted the statutory provisions and made an error of law which was apparent on the face of the record of the decision. That decision was quashed.

Subsequently, there is prohibition which merely means to restrict or prevent a public body from acting ultra vires. See the crucial case of R. v. Liverpool Corp., ex p. Liverpool Taxifleet, it was alleged that a local authority had failed to exercise its discretion properly and was about to act in an ultra vires manner in the allocation of taxi cab licences. An order of prohibition was given to prevent the body from acting ultra vires.

Its scope however, is the same as certiorari, excluding point 3, whereby it cannot be used to prevent a tribunal from making an error of law on the face of the record.

Contrastingly, there are restrictions to the aforementioned prerogative orders (certiorari and prohibition) which include:

(a) As it is a remedy of public law it will not lie to control the jurisdiction of private or domestic bodies. Nor will it lie to control the activities of a public body carrying out a purely private law matter. (see R. v. B.B.C)

(b)It cannot lie against the crown (government or Constitution)

(c) It has not been granted in cases involving the exercise of legislative functions, e.g. to control delegated legislation

Then there is mandamus, which is an order that forces a public body to perform a duty it was originally obligated to do. It does not force a new task upon them, but rather commands them to do what ought to have been done and was expected to be done in accordance with the law. In the landmark case of R. v. Manchester Corp the order compelled the local authority to make by-laws that it was under a statutory duty to make. Here, a new task wasn’t forced upon the public body, rather it is a duty to be done originally that which he failed to do. The case of PM Andrew Holness v Integrity Commission is also a prime case on the matter.

The scope of this remedy is as follows:

(a) Seeing as it compels performance of a public duty. It will not lie to control the activities of public bodies in terms of their private duties

(b)It does not compel the exercise of a power, rather to perform a task obligated by law

(c) The duty the body is forced to perform must be lawful

Secondly, non prerogative orders are those that are non found in public law, rather primarily used in private law, however, widely used in public law. Declaration is among one of the two considered in this category, which entails the litigant obtaining a statement that declares a legal relationship or assets a right to said litigant.

It can be used to challenge a legality of an administrative decision, for example in Ridge v Baldwin, to establish the existence of a public duty, as in Central Electricity Board v. Jennaway, or even challenge the validity of delegated legislation, as in the case of Daymond v. South West Water Authority.

However there are a few restrictions to its usage such as:

1.The applicant must have a justifiable interest

2.The dispute between the parties must be substantial or ‘real’

3.It cannot quash a decision it cannot be used to challenge a decision on the ground that there has been an error of law on the face of the record of a public body’s decision (reserved for certiorari)

*5. What is the procedure to apply for Judicial Review (make reference to filing a Notice of Application For Court Orders seeking Leave, Affidavit in Support of the Application and Affidavit of Urgency)See part 56 of CPR (10)

As mentioned previously, the documents required to file for judicial review are:

1.NOA: a notice of application of court order

2.An affidavit:

3.An affidavit of urgency:

1.This is given to the accused informing them that the litigant is requesting a court order, in this case the accused is the public body.

2.This is where the litigant gives evidence of the wrongdoing done to himself by the accused. It must be signed by a witness, in most cases, their lawyer.

3.This explains to the court why the matter is urgent and the litigant must skip normal procedures