11.2.2 Applications, Grounds and Remedies Lecture

Introduction

In this section, the procedural process for making judicial review will be considered by outlining the stages established within Order 54 of the Civil Procedure Rules. Secondly, it will analyse the various grounds for judicial review. The final part of this chapter looks at the various remedies for judicial review.

A. Applications for Judicial Review

The first step in the judicial review procedure is that the claimant complies with the pre-action protocol.

To establish standing to make a claim for a judicial review, the court must find that the applicant has 'sufficient interest in the matter to which the application relates' (section 3(1) Senior Courts Act 1981).

B. Grounds for Judicial Review

As discussed in Section 11.1, the three grounds for judicial review are outlined in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.

i. Illegality

Illegality is a very broad ground for review and covers a wide range of possible abuses by public authorities. When public authorities act outside of their legal authority, they are acting ultra vires.

(a) Discretion

In other circumstances, a public authority has the discretion to act. Frequently claims for judicial review arise out of a public authority's exercise of discretion within their statutory powers.

The essential element of a discretionary power is choice, whereas a duty removes discretion and takes away choice.

(b) Discretion is not unrestricted

The fact that discretion must be unfettered requires that it must be exercised according to the purpose of the law that gives rise to the discretion.

(c) Illegality: discretion and policies

In cases where a public authority is exercising a discretion which affects a large number of people, it may adopt rules or policy for guidance.

(d) Delegation, Abdication and Dictation

A body to which a responsibility to exercise discretion has been granted must not delegate that responsibility.

(e) Improper Purpose and Irrelevant Considerations

The exercise of power for an improper purpose is invalid.

(f) Error of Law and Error of Fact

An error of law by a public authority is outside of its jurisdiction and will be declared invalid by the courts. 

Judicial review does not provide a right of appeal, so an error of fact must not ask the court to substitute the court for the decision maker in deciding an issue of fact.

ii. Irrationality

Lord Diplock explained that irrationality means unreasonableness.

(a) Proportionality

Proportionality requires that the court take additional steps and engages with the challenged decision in much greater depth.

iii. Procedural Impropriety

The correct procedure for making a decision must be observed for it to be lawful. Procedural review thus examines the process by which a decision has been reached.

(a) Statutory requirements

There is certain procedural impropriety that invalidates administrative actions.

(b) Natural Justice

Natural justice is now more commonly referred to as fairness.

C. Remedies for Judicial Review

Quashing orders

Mandatory and Prohibiting Orders

Injunctions

Declarations

Damages

Remedies in judicial review cases are discretionary. This can be contrasted with private law cases where a claimant is entitled to relief.


To export a reference to this article please select a referencing style below:

Reference Copied to Clipboard.
Reference Copied to Clipboard.
Reference Copied to Clipboard.
Reference Copied to Clipboard.
Reference Copied to Clipboard.
Reference Copied to Clipboard.
Reference Copied to Clipboard.

Current Offers