PUBLIC LAW - SQE 2 EXAM
REVIEWED QUESTIONS AND
COMPLETE SOLUTIONS
What is the purpose of judicial review (JR)?
Judicial review checks the exercise of public power to
ensure decisions are made and implemented correctly
according to law.
How does judicial review differ from appeal?
Judicial review does not assess the merits of a
decision or substitute the court’s decision for that of
the original decision-maker.
It ensures the decision is made properly and lawfully.
What are the five main preliminary issues for judicial
review?
Amenability
Procedural exclusivity
Standing
Time limits
Ouster clauses (where relevant)
What determines if a decision is amenable to judicial
review?
Only 'public law decisions' are amenable to judicial
review.
e.g.
Decisions made by public bodies such as government
departments, local authorities, inferior courts, statutory
,tribunals, and bodies exercising statutory or prerogative
powers.
Bodies performing public law functions
Decisions by bodies performing 'public law functions' can
be subject to judicial review regardless of the source of
their power.
e.g.
If a self-regulatory body performs functions of public
importance (e.g., governmental-type roles), its decisions
may be subject to judicial review.
When are self-regulatory authorities amenable to
judicial review?
When their decisions have a public character and affect
public interests.
How does the source of power affect the amenability
of private bodies contracted by public bodies?
Not amenable: If the power is purely contractual
Amenable: If the decision is underpinned by statutory
duties
What is procedural exclusivity in judicial review?
Judicial review is the exclusive procedure for challenging
public law decisions, while private law matters must be
dealt with by ordinary actions.
To bring a public law challenge any other way would
amount to an abuse of process.
What happens if a public law challenge is brought
inappropriately?
It may be struck out as an abuse of process.
What are the two exceptions to procedural
exclusivity?
, When both parties consent to private law procedure.
When the public law issue is collateral (arising
incidentally to another claim).
How have the Civil Procedure Rules influenced
procedural exclusivity?
The Court of Appeal allowed claims in contract to proceed,
even when they involved public law issues, as long as
justice was served under the CPR.
e.g.
The claimant brought a civil action against her university,
challenging a zero percent mark she was awarded in a
final year paper. The University argued that her claim was
an abuse of process as she should have brought it by
judicial review. Furthermore, any application was outside
the three-month judicial review time limit. The Court of
Appeal held that, even though the dispute concerned
issues of public law, this did not prevent her from pursuing
the matter by means of an action in contract (in spite of
the more generous time limits applying in private law).
How have exceptions to the procedural exclusivity
rule developed in mixed cases involving public and
private law claims?
Exceptions have arisen allowing private law claims to
proceed even when they involve public law issues.
This is especially true in cases where:
The claimant is asserting private law rights, and public law
issues arise only incidentally.
The focus is on ensuring justice is served, rather than
strictly adhering to procedural categories.
What is standing (locus standi ) in JR?
REVIEWED QUESTIONS AND
COMPLETE SOLUTIONS
What is the purpose of judicial review (JR)?
Judicial review checks the exercise of public power to
ensure decisions are made and implemented correctly
according to law.
How does judicial review differ from appeal?
Judicial review does not assess the merits of a
decision or substitute the court’s decision for that of
the original decision-maker.
It ensures the decision is made properly and lawfully.
What are the five main preliminary issues for judicial
review?
Amenability
Procedural exclusivity
Standing
Time limits
Ouster clauses (where relevant)
What determines if a decision is amenable to judicial
review?
Only 'public law decisions' are amenable to judicial
review.
e.g.
Decisions made by public bodies such as government
departments, local authorities, inferior courts, statutory
,tribunals, and bodies exercising statutory or prerogative
powers.
Bodies performing public law functions
Decisions by bodies performing 'public law functions' can
be subject to judicial review regardless of the source of
their power.
e.g.
If a self-regulatory body performs functions of public
importance (e.g., governmental-type roles), its decisions
may be subject to judicial review.
When are self-regulatory authorities amenable to
judicial review?
When their decisions have a public character and affect
public interests.
How does the source of power affect the amenability
of private bodies contracted by public bodies?
Not amenable: If the power is purely contractual
Amenable: If the decision is underpinned by statutory
duties
What is procedural exclusivity in judicial review?
Judicial review is the exclusive procedure for challenging
public law decisions, while private law matters must be
dealt with by ordinary actions.
To bring a public law challenge any other way would
amount to an abuse of process.
What happens if a public law challenge is brought
inappropriately?
It may be struck out as an abuse of process.
What are the two exceptions to procedural
exclusivity?
, When both parties consent to private law procedure.
When the public law issue is collateral (arising
incidentally to another claim).
How have the Civil Procedure Rules influenced
procedural exclusivity?
The Court of Appeal allowed claims in contract to proceed,
even when they involved public law issues, as long as
justice was served under the CPR.
e.g.
The claimant brought a civil action against her university,
challenging a zero percent mark she was awarded in a
final year paper. The University argued that her claim was
an abuse of process as she should have brought it by
judicial review. Furthermore, any application was outside
the three-month judicial review time limit. The Court of
Appeal held that, even though the dispute concerned
issues of public law, this did not prevent her from pursuing
the matter by means of an action in contract (in spite of
the more generous time limits applying in private law).
How have exceptions to the procedural exclusivity
rule developed in mixed cases involving public and
private law claims?
Exceptions have arisen allowing private law claims to
proceed even when they involve public law issues.
This is especially true in cases where:
The claimant is asserting private law rights, and public law
issues arise only incidentally.
The focus is on ensuring justice is served, rather than
strictly adhering to procedural categories.
What is standing (locus standi ) in JR?
