What is Prohibition?

Prohibition is used to restrain a tribunal, minister or other public body from proceeding in excess of jurisdiction. As it comes from the root word, ‘prohibit’, it entails preventing a statutory body from making a decision otherwise illegal, irrational and so on.

It is categorized as a prerogative order, which means they are remedies of public law and will control private or domestic bodies

For example in the quintessential case of  R. v. Liverpool Corp., ex p. Liverpool Taxi Fleet Operators Association, the local authority had allegedly failed to exercise its discretion properly and was about to act in an ultra vires manner in terms of  distributing taxi cab licences. An order of prohibition was made to prevent the authority acting beyond its jurisdiction.

Landmark cases

R v liverpool corp

In the landmark case of R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators' Association [1972]. The Liverpool Corporation, a local authority responsible for regulating taxi services within its jurisdiction, gave an undertaking to the Liverpool Taxi Fleet Operators' Association, which represented existing taxi license holders, that the number of licenses would remain capped unless the Association was consulted beforehand. Notwithstanding this assurance, the Corporation unilaterally resolved to increase the number of taxi licenses without initiating the requisite consultative process. In response, the Association sought judicial review, contending that the Corporation’s undertaking had engendered a legitimate expectation that such consultation would precede any decision to alter the licensing cap.

R v. London County Council, ex parte Entertainments Protection Association

In R v. London County Council, ex parte Entertainments Protection Association, the London County Council imposed additional conditions on cinema licenses, including restrictions on Sunday screenings. The Entertainments Protection Association, representing cinema operators, sought judicial review, contending that the Council had acted ultra vires by exceeding the scope of its statutory powers and failing to exercise its discretion in a reasonable manner.

The court held that the Council’s decision was amenable to judicial review and found that public authorities must act intra vires, ensuring that their actions are lawful, rational, and procedurally fair. Relief was granted, reaffirming that conditions imposed by statutory bodies must align strictly with the enabling legislation and cannot be arbitrary, excessive, or outside the scope of their legal authority.

R v Sussex Justices, ex parte Entertainment Services

In R v Sussex Justices, ex parte Entertainment Services, the case concerned a magistrates' court's decision involving the Entertainment Services company, which challenged the ruling on the grounds of procedural impropriety. The challenge was based on an allegation of apparent bias, as the clerk to the justices had a potential conflict of interest due to connections with one of the parties involved in the case.

The court held that justice must not only be done but must also be seen to be done, establishing a foundational principle for judicial impartiality. The magistrates' decision was quashed, underscoring that even the appearance of bias undermines public confidence in the fairness of judicial proceedings. This case remains a cornerstone in administrative law, emphasizing that procedural fairness is essential in decision-making by public authorities.

In R v. Justices of Middlesex (1837), a writ of prohibition was sought to prevent the Justices of Middlesex from proceeding with a case alleged to fall outside their jurisdiction. The applicant contended that the justices were acting ultra vires (beyond their lawful authority) and that allowing the case to proceed would result in an invalid decision. The court held that prohibition was the appropriate remedy to restrain the justices from overstepping their jurisdiction, ensuring that no unlawful action occurred.

This case highlights the preventive nature of prohibition as a judicial remedy, stopping inferior courts or tribunals from exceeding their legal powers before any decision is made. It reinforces the principle that all judicial and administrative bodies must act within their statutory boundaries, protecting individuals from unlawful decisions and preserving the integrity of the rule of law. Prohibition thus serves as a vital mechanism for ensuring accountability and procedural fairness in the exercise of public authority.

The Scope of Prohibition

1.Where the body acts ultra vires

E.G: R. v. London C.C., ex p. Entertainments Protection Association, a crucial case,  a decision by a local authority to authorise a cinema to open on Sundays was quashed due to it  being ultra vires.

2.Where there is a breach of the rules of natural justice.

E.G: In R. v. Sussex Justices, ex p. McCarthy, a paradigmatic case, the conviction of dangerous driving was quashed because it breached the ‘Nemo Judex rule’, which states that no one should be a judge in their own hearing. This simply means, if you have an interest in the matter/close to the matter/know someone in the matter, you can’t judge the case.

Restrictions of Prohibition

1.Seeing as it is a Prerogative order, it cannot interfere with private or domestic entities, nor in the case of a public body carrying out matters pertaining to private law. (R. v. B.B.C)

2.It cannot lie against the crown (in this case Parliament/The Government)

3.It cannot be exercised in cases involving the use of legislative functions

The below remedies are categorized as non prerogative, meaning they are not solely used in public law, unlike remedies such as prohibition, rather they are used in private law and widely used in public law matters as well.

Damages

According to Lexis Nexis, “Damages refers to compensation awarded to an individual who has suffered harm or loss due to unlawful or improper actions taken by a public body or authority.” In Layman's terms, it is the monetary compensation awarded by law to a person for legal wrongs done to the individual. It is important to note that judicial review mainly focuses on the legality of public organizations, functionaries or tribunals, to prohibit, compel, restrain, quash or restrict the actions or decisions of these bodies of figures. However, while it doesn't aim to give monetary compensation some situations may require compensation. With this, the applicant must be able to prove that the public authority's actions affected him directly resulting in harm that must be compensated for. Damages are mostly awarded or done in private law rather than public law. The following must be proven for an individual to claim damages in judicial review:

1. There was an unlawful conduct
2. No other remedies are available
3. Violation of the constitution

First and foremost, the applicant must prove that there was unlawful conduct against him/her. In other words, a public authority or official has taken action outside of its legal powers (ultra vires) or acted in a way that violates legal principles, leading to harm to the claimant. Additionally, The claimant must show that the unlawful action of the public authority caused them direct harm, which could be compensated by damages. Furthermore, the applicant must be able to prove that he or she had no other alternate remedies available and lastly, the applicant must prove that their constitutional rights have been violated for the court to award damages.

In the case of Higgs V Commissioner of Police (2007), Higgs, a Jamaican citizen, was detained by the police for an extended time without proper legal authority. He argued that his detention breached his constitutional rights, including his right to liberty and freedom from arbitrary detention. The police had not adhered to the legal procedures required under Jamaican law, prompting Higgs to pursue judicial review to challenge the unlawful detention.

In another case, the Attorney General of Trinidad and Tobago v. Ramanoop [2005] damages were awarded. Ramanoop, a citizen of Trinidad and Tobago, was unlawfully detained, assaulted, and humiliated by police officers in his home. He claimed that his constitutional rights to liberty, security, and protection from inhuman or degrading treatment were violated. Ramanoop sought redress under the Constitution, arguing that the state's failure to protect his rights warranted both compensatory and vindicatory damages.

In conclusion, courts primarily focus on rectifying unlawful decisions through remedies like quashing orders or injunctions, and damages are usually awarded only in exceptional cases involving clear violations of constitutional rights or where no other adequate remedy is available.

Injunction

This remedy can either require a party to do something, which is called a mandatory injunction or it restrains a party from pursuing a course of action which is called a prohibitory injunction, this is used especially in cases where the course of action involves a breach of the law. The case of Bradbury v Enfield is an example of a case where an injunction was granted to restrict a party from acting ultra vires. The injunction was granted to prevent a local authority from reorganising local schools without following the correct procedure.

An injunction can either be granted temporarily or permanently. A temporary injunction is granted to provide immediate relief until the case is resolved whereas a permanent injunction is granted after a case has been resolved and serves as a lasting remedy.

There are two main benefits of this remedy, the first one being that it is not only limited to public bodies but also non-public bodies (like private organizations) when their actions are challenged. This makes this remedy flexible which is beneficial because it is not restricted to governmental bodies or statutory entities like other remedies like certiorari or prohibition. The second benefit is that it can be issued even when there is no ultra vires case. This means that this remedy can be issued even if there is no proof that the body acted outside of its power. So an injunction may be granted to prevent harm or preserve the regular state of things even if no illegal activity has been proven.

However, a restriction of an injunction is that it cannot be issued against the Crown and it will not hinder the processes of Parliament. In the Caribbean, however, it can be issued against a minister of state in their capacity as public officers but in limited circumstances as seen in the case of Spencer v AG of Antigua and Barbuda.

When compared to prohibition, an injunction has the benefit of providing interim relief to prevent irreparable harm until the matter is resolved as opposed to prohibitions that do not offer any temporary relief and only restrains actions that exceed legal authority. Additionally, injunctions actively prevent harm or compel actions to ensure justice. This is not the case with prohibitions which serve to curtail unlawful exercises of power.

Restitution

The aim of this remedy is to prevent the defendant from a gain instead of  to compensate the claimant for a loss suffered.

There are three claims that could be made under The Law of Restitution:

1.The defendant has benefited from committing a wrong, which could be applied to a public body who may have profited from a tort.

2.The defendant received property that the claimant has proprietary interest in, the latter will be able to exercise his rights

3.The defendant has been greatly enriched at the downfall of the claimant, which is the most popular against public bodies

Thus claims #1 and #2 are both applicable as a remedy under The Law of Restitution in Judicial Review

The following elements must be considered to establish either claim:

1.If the defendant received money this must be proven

2.This money came directly from the claimant causing him strife/loss

3.The direct sending of money must be proven to be unjust and applicable to one of the claims. This is the hardest element to satisfy against public bodies

4.The public body, in this case is unable to apply a suitable defence (eg: estoppel or change of position) to justify this enrichment