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11.2.3 Applications, Grounds and Remedies Lecture - Hands on Examples

The following essay style questions provide examples that will test your knowledge and understanding of the topics covered in the chapter on Applications, Grounds and Remedies for Judicial Review. Suggested answers can be found at the end of this section. Make some notes about your immediate thoughts and if necessary, you can go back and review the relevant chapter of the revision guide. Working through exam questions helps you to apply the law in practice rather than just having a general understanding of the legal principles. This should help you be prepared for particular questions, which may be presented in the exam.

Problem Question

The Action Against Climate Change Act 2014 (fictitious) establishes a Climate Commission and empowers it to fine any company in the UK that are impacting negatively upon the UK governments obligations under the Kyoto Agreement., in that the greenhouse gas emissions for which they are responsible exceed a industry based agreed target. The Action Against Climate Change Act 2014 requires that the Secretary of State for Climate Change approve any decision of the Climate Commission before fining any company.

Mega Corp is a private rail operator that operates within the UK railway industry. The railway industry in the UK has managed to keep within its industry an agreed target for greenhouse gas emissions, Mega Corp have also complied with its individual targets for greenhouse emissions. Mega Corp CEO Ronald Baxter learns that the Climate Commission intends to fine Mega Corp for failure to operate within their commitments.

Ronald sends the Climate Commission an independently audited report of its company's greenhouse emissions illustrating that it complies with its targets and an industry-wide report showing that as a whole the industry has complied with its targets. Ronald Baxter was vocal in his disagreement with the establishment of the Climate Commission and actively lobbied against it.

The Commission's decision to fine Mega Corp is authorised by the Secretary of State for Climate Change following a meeting with the Prime Minister who reminded him that tighter control of greenhouse emissions was a fundamental principle of current government policy.

Advise Ronald as to the grounds upon which he might apply for judicial review against the decision of the Climate Commission and the Secretary of State for Climate Change.

Suggested Answer

1. Parties and Cause of Action

Start with a short introduction that states the claimant as Ronald Baxter, and the defendants as the Climate Commission and the Secretary of State for Climate Change. You can explain that the cause of action is for judicial review, since you are challenging the decision of a public authority on matters of public law.

Apply O'Reilly v Mackman [1983] UKHL 1, in which it was held that the exclusive principle states that you cannot assert a public law right against a public body with a private law action; judicial review is the appropriate remedy in such a case.

2. Pre-Action Procedural Steps for Judicial Review

Pre-Action protocol, write a letter to an authority outlining their claim in an attempt to avoid litigation.

A claim must be filed within the Administrative Court outlining the decision to be reviewed.

The defendant must then state within 21 days whether they intent to contest the claim.

3. Commencement of Proceedings

Part 54, S.1 Civil Rules of Procedure, requires:

Application for permission to Administrative Court, within 3 months of decision, using appropriate claim form; and supporting documents.  If the claim is not accepted an oral hearing can be heard, and there is also an avenue of appeal to the Court of Appeal.

4. Grounds for Judicial Review

Three Grounds, Lord Diplock Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374: illegality, irrationality and procedural impropriety

Has the Climate Commission, SSCC acted ultra vires? Explain ultra vires, Attorney General v Fulham Corporation [1921] 1 Ch 440, Bromley LBC v GLC, [1983] AC 768, [1982] 1 All ER 153,

You can consider 'improper purpose' which can include malice or dishonesty on behalf of a public official, e.g. Congreve v Home Office [1976],  QB 629, Potter v Magill [2001] UKHL, 67, [2002] 2 AC 357 - Westminster Council sold of council houses to attract home owners who would vote conservative

In the current case it appears that the Climate Change Commission and the Secretary of State for Climate Change have acted ultra vires as they have no authority to fine a company that has operated within its target for green house gas emissions.

5. Relevant Considerations

R v Home Secretary, ex p Venables [1998] AC 407 - consider that an error of law by a public authority when it acts outside of its jurisdiction will be declared invalid by the courts. In Venables the Home Secretary erred in law and acted outside the scope of his powers. In the current case, the Climate Change Commission and the Secretary of State for Climate Change have erred in law since they have applied in incorrectly by applying a fine for excess emissions to a company that is operating within its target green house emissions.

Also consider British Oxygen Company Ltd v Ministry of Technology [1971] AC 619, in which it was held that fettering of discretion can occur if a policy is applied to rigidly. Authorities must "always [be] willing to listen to anyone who has something new to say" [per Lord Reid].

6. Possible Remedies

Outline the various remedies that are available in judicial review proceedings including: quashing orders, mandatory and prohibiting order, injunctions (also available in private law proceedings), interim injunctions (if the right would be destroyed once a certain act is carried out) and declarations. e.g. Royal College of Nursing v DHSS [1981] AC 800.

Advice Robert Baxter what the most appropriate remedy would be in his case. It is likely to be a quashing order that would nullify the decision of the Climate Commission and Secretary of State for Climate Change to fine Mega Corp.


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