Public law – Judicial review
- Procedure: governed by primary legislation (s 31 of the Senior Courts Act 1981) and
rules in part 54 of the Civil Procedure Rules (CPR) 1998.
Can claimant (‘C’) make a claim for judicial review?
- Does C’s claim raise public law issues?
o Public law vs private law:
Principle of ‘procedural exclusivity’: requires that in a public law case
judicial review should normally be followed, rather than ordinary
private law procedure.
O’Reilly v Mackman: Lord Diplock stated that if the plaintiffs
used private law procedure, they would have evaded the
permission and delay rules which affect an application for
judicial review.
Cases involving public and private law:
o Roy case: where there is a mixture, public law element
Examples of most common type of public law cases: challenges
to the making of compulsory purchase order over land,
challenges to grant/refusal of a licence permitting a type of
activity, challenges to refusal of financial grants etc.
A public law issue can be raised as a defence in a private law
proceedings.
o Wandsworth LBC v Winder.
- Identity of the Decision-maker: amenable to judicial review?
o Claimants can seek judicial review only of decisions made by public bodies.
(Decisions of private bodies must be challenged under private law
proceedings).
Ex p Datafin plc: two-part test to determine what constitutes a
public body.
First part of the test: source of power test. If the body making
a decision has been set up under statute / delegated legislation,
or derives its power under reviewable prerogative power, then
it is a public body.
If this part of the test is not satisfied, then the court applies the
second part: nature of power test. If the body making
decisions is exercising public law functions, it may still be a
public body.
- Requirement of “sufficient interest”: does the claimant have sufficient interest in
the matter to which a claim relates?
o Required by s 31(3) Senior Courts Act 1981
o It will not be a problem to establish this when a claimant is personally affected
by a decision. It can be an issue when claimant has no personal interest
Ex p National Federation of Self-Employed and Small Businesses Ltd:
applied for judicial review of decision of the Inland Revenue to grant
amnesty to workers employed by Fleet Street who did not pay taxes,
, providing they would pay in the future. Revenue argued that National
Federation lacked personal interest to have standing.
JD is a two-stage process: permission stage is in place to weed out
weak and frivolous claims. At this stage it was correct to hold that the
Federation had standing because the claim was obviously not
unmeritorious.
Second stage: court should re-examine the claimant’s standing with
regards to the merits of the claim and the claimant’s relationship to the
merits.
In this case the Federation had been unable to prove wrongdoing on the
part of the Revenue, so it did not have sufficient interest as normally
one tax payer has no legitimate interest in the affairs of another.
o Pressure groups:
ex p World Development movement: when does a pressure group
have sufficient standing to bring a claim for judicial review. A court
should consider five relevant factors in deciding whether a pressure
group has standing to bring claim for judicial review:
the need to uphold the rule of law
the importance of the issue raised
the likely absence of any other responsible challenger
the nature of the alleged breach of duty; and
the role of the pressure group
o This is particularly relevant to pressure groups, court
pointed out WDM’s role in promoting and aiding
developing nations (expertise etc).
o Sometimes a group of people personally affected by a
decision will form a group challenging a decision: they
would not be a pressure groups as they will have
sufficient standing under s 31(3) SCA 1981.
- Time limits to make a claim for judicial review:
o A claimant must make a claim within time.
o s 31(6) SCA 1981 allows courts to refuse a claim where it feels there has been
‘undue delay’.
o CPR r 54.5 requires a claim to be filed promptly, and in any case within a
maximum of three months after the ground to make the claim first arose.
Planning acts: cases within ‘planning acts’ have a time limit of six
weeks.
“planning acts” defined in s 336 of the Town and Country
Planning Act: planning decisions.
Public procurement cases: time limit of 30 days.
Public authority acquires supplies or services.
o NB: three months is the maximum: not every claimant will have full
standard time limit to bring a claim.
Finn-Kelcey case: appellant appealed against refusal by the
Administrative court to grant him permission to apply for judicial
review, he issued an application for judicial review within the three
months; the appeal was dismissed, CA held there was no reason to
- Procedure: governed by primary legislation (s 31 of the Senior Courts Act 1981) and
rules in part 54 of the Civil Procedure Rules (CPR) 1998.
Can claimant (‘C’) make a claim for judicial review?
- Does C’s claim raise public law issues?
o Public law vs private law:
Principle of ‘procedural exclusivity’: requires that in a public law case
judicial review should normally be followed, rather than ordinary
private law procedure.
O’Reilly v Mackman: Lord Diplock stated that if the plaintiffs
used private law procedure, they would have evaded the
permission and delay rules which affect an application for
judicial review.
Cases involving public and private law:
o Roy case: where there is a mixture, public law element
Examples of most common type of public law cases: challenges
to the making of compulsory purchase order over land,
challenges to grant/refusal of a licence permitting a type of
activity, challenges to refusal of financial grants etc.
A public law issue can be raised as a defence in a private law
proceedings.
o Wandsworth LBC v Winder.
- Identity of the Decision-maker: amenable to judicial review?
o Claimants can seek judicial review only of decisions made by public bodies.
(Decisions of private bodies must be challenged under private law
proceedings).
Ex p Datafin plc: two-part test to determine what constitutes a
public body.
First part of the test: source of power test. If the body making
a decision has been set up under statute / delegated legislation,
or derives its power under reviewable prerogative power, then
it is a public body.
If this part of the test is not satisfied, then the court applies the
second part: nature of power test. If the body making
decisions is exercising public law functions, it may still be a
public body.
- Requirement of “sufficient interest”: does the claimant have sufficient interest in
the matter to which a claim relates?
o Required by s 31(3) Senior Courts Act 1981
o It will not be a problem to establish this when a claimant is personally affected
by a decision. It can be an issue when claimant has no personal interest
Ex p National Federation of Self-Employed and Small Businesses Ltd:
applied for judicial review of decision of the Inland Revenue to grant
amnesty to workers employed by Fleet Street who did not pay taxes,
, providing they would pay in the future. Revenue argued that National
Federation lacked personal interest to have standing.
JD is a two-stage process: permission stage is in place to weed out
weak and frivolous claims. At this stage it was correct to hold that the
Federation had standing because the claim was obviously not
unmeritorious.
Second stage: court should re-examine the claimant’s standing with
regards to the merits of the claim and the claimant’s relationship to the
merits.
In this case the Federation had been unable to prove wrongdoing on the
part of the Revenue, so it did not have sufficient interest as normally
one tax payer has no legitimate interest in the affairs of another.
o Pressure groups:
ex p World Development movement: when does a pressure group
have sufficient standing to bring a claim for judicial review. A court
should consider five relevant factors in deciding whether a pressure
group has standing to bring claim for judicial review:
the need to uphold the rule of law
the importance of the issue raised
the likely absence of any other responsible challenger
the nature of the alleged breach of duty; and
the role of the pressure group
o This is particularly relevant to pressure groups, court
pointed out WDM’s role in promoting and aiding
developing nations (expertise etc).
o Sometimes a group of people personally affected by a
decision will form a group challenging a decision: they
would not be a pressure groups as they will have
sufficient standing under s 31(3) SCA 1981.
- Time limits to make a claim for judicial review:
o A claimant must make a claim within time.
o s 31(6) SCA 1981 allows courts to refuse a claim where it feels there has been
‘undue delay’.
o CPR r 54.5 requires a claim to be filed promptly, and in any case within a
maximum of three months after the ground to make the claim first arose.
Planning acts: cases within ‘planning acts’ have a time limit of six
weeks.
“planning acts” defined in s 336 of the Town and Country
Planning Act: planning decisions.
Public procurement cases: time limit of 30 days.
Public authority acquires supplies or services.
o NB: three months is the maximum: not every claimant will have full
standard time limit to bring a claim.
Finn-Kelcey case: appellant appealed against refusal by the
Administrative court to grant him permission to apply for judicial
review, he issued an application for judicial review within the three
months; the appeal was dismissed, CA held there was no reason to
