JUDICIAL REMEDIES IN PUBLIC LAW

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1 LITIGATION LIBRARY JUDICIAL REMEDIES IN PUBLIC LAW by Clive Lewis Barrister, Middle Temple WlTH A FOREWORD BY THE RT. HON. LORD JUSTICE LAWS LONDON SWEET & MAXWELL 2000

2 Foreword Foreword to First Edition Preface Preface to First Edition Table of Cases Table of Statutes Table of Statutory Instruments Table of Civil Procedure Rules Table of International and European Conventions and Treaties page vii ix xi xiii xxxv cxv cxxii cxxiii cxxvi CHAPTER1 INTRODUCTION para A. Public Law B. The Application for Judicial Review C. Significance of the Application for Judicial Review D. Habeas Corpus E. Statutory Mechanisms of Challenge F. Damages G. European Union law CHAPTER2 THE AVAILABILITY OF JUDICIAL REVIEW A. Introducrion B. Source of the Power Statute Non-statutory bodies exercising statutory powers xv

3 Situations where judicial review is inappropriate Rationale for judicial review of statutory powers and duties Statutory bodies performing a non-public function Statutory bodies and private law Prerogative Availability of judicial review Definition of the prerogative Scope of judicial review Prerogative powers that may or may not be justiciable Prerogative powers that are reviewable Prerogative powers to regulate the civil Service Prerogative powers in foreign affairs The prerogative power to grant a pardon Prerogative power to consent to relator action Prerogative power to stop criminal proceedings Miscellaneous prerogative powers European Union law Sporting bodies and other bodies deriving jurisdiction from contract Domestic tribunals Judicial control of domestic tribunals Criticism of the existing position Public bodies acquiring jurisdiction by contract C. Nature of the Function Bodies performing public functions Government or public authority involvement Statutory recognition The nature and importance of the function The absence of private law mechanisms of control Common law powers of certain bodies D. Miscellaneous Bodies Chartered corporations The British Broadcasting Corporation Universities and Colleges The Inns of Court Parliament Charities Superior courts E. Subject-matter of the Claim Contract Power to contract Statutory restrictions on the power to contract xvi

4 Public law principles regulating the exercise of contractual power Contractual position of the Crown Judicial review and employment relationships Tort Statutory duties No, or no live, issue of public law raised F. Declarations and Injunctions G. Damages and Judicial Review H. Power to Order Proceedings to Continue as if begun by Claim CHAPTER 3 CHOICE OF FORUM AND THE EXCLUSIVITY OF JUDICIAL REVIEW PROCEEDINGS IN PUBLIC LAW A. Introduction B. The Rule in O'Reilly v. Mackman Rationale for the rule Effect of the rule Scope of the rule Cases raising only public law issues Cases involving only private law issues Cases involving both private and public law Decisions affecting private law rights Public and private law claims arising Public law decision a precondition to the creation of a private law right Cases involving enforcement of a private law right where a collateral issue of public law arises Consent C. Defences Defences in civil proceedings Defences based on the invalidity of the decision to Institute proceedings Defence to criminal proceedings Decisions to institute criminal charges Consequences of a successful defence in criminal cases D. Relator Actions E. Habeas Corpus xvii

5 F. Declarations against the Crown G. Specific Provision for Ordinary Claims H. Appeal Procedures and Original Jurisdiction of Tribunals I. Assessment of the Rule in O'Reilly v. Mackman CHAPTER4 ACTS AND OMISSIONS IN RESPECT OF WHICH JUDICIAL REVIEW IS AVAILABLE A. Introduction B. Acts Affecting Individuais Decisions and dererminations Decisions affecting rights Decisions imposing legal sanctions Decisions affecting personal liberty Decisions affecting livelihood and office Decisions affecting legitimate expectations Exercises of discretionary power Decisions having factual consequences for individuals Procedural decisions Preliminary decisions Decisions on whether or not to institute proceedings Recommendations Managerial decisions Reports Advice and guidance Conduct or action other than decisions affecting an individual C. Acts by one Public Body Affecting Another Public Body Central local government relations Decisions Default powers Fiscal controls Determining the allocation of authority Protection of procedural rights Challenges by central government Relations between local authorities Relations between other public bodies D. Measures of General Application Acts of Parliament Acts of Parliament and European Union law xviii

6 Proposed legislation and European law Delegated legislation Policies Other measures of general application E. Failure to Act Failure to perform a public law duty Failure to exercise jurisdiction or discretion F. Non-Justiciable Acts and Omissions Meaning of justiciability Security issues Police decisions Issues of judgment Qualifications on the concept of justiciability CHAPTER5 INVALIDITY, PARTIAL INVALIDITY AND SEVERANCE A. Introduction B. The Ultra Vires Principle Basis of the ultra vires principle Exception to the ultra vires principle errors of law within jurisdiction C. The Meaning of Null and Void in Administrative Law Introduction Need to establish invalidity Methods of establishing invalidity Situations where the courts will refuse to intervene Consequences when the courts do intervene Consequences in contract and restitution Consequences in tort Void and voidable D. Prospective Declarations E. Partial Invalidity and Severance Measures only partially invalid The test for severance or partial invalidity Textual severability xix

7 Substantial severability Measures other than delegated legislation CHAPTER6 THE PREROGATIVE REMEDIES: CERTIORARI, PROHIBITION AND MANDAMUS A. Introduction B. Certiorari The control of ultra vires acts The scope of certiorari Non-binding acts Certiorari and nullities Certiorari and subordinate legislation Refusals or failure to act Threatened unlawful acts Restrictions on the availability of certiorari The effect of certiorari Power to remit Variation of sentences Severance or partial invalidity Standing and discretion Interim relief stay of proceedings Principles governing the grant of a stay Consequences of a breach of a stay Errors of law on the face of the record Definition of the record Definition of error of law Effect of certiorari C. Prohibition Purpose of prohibition Prevention of unlawful action Conditional prohibition Restrictions on prohibition Premature applications for prohibition Interim relief, Standing and the discretionary refusal of prohibition Failure to comply with an order of prohibition xx

8 D. Mandamus Duty to exercise jurisdiction or discretion Duty to perform a specific act Duties derived from European Union law Duties to provide Services Duty to comply with order or directions Restrictions on the availability of mandamus Superior court The Crown Matters of military law Technical restrictions Effect of mandamus Interim relief Standing and discretion to refuse a remedy CHAPTER 7 DECLARATIONS A. Introduction B. Historical Outline Pre-1978 position Position from 1978 onwards C. Uses of the Declaration in Public Law To establish whether a decision, order, conduct or other act is ultra vires To establish the invalidity of subordinate legislation To specify the consequences of a finding of invalidity To determine the extent of the powers of a public body To determine the existence and extent of public duties To determine rights To determine questions of European Union law Declarations under the Human Rights Act To determine questions of law D. Restrictions on the Grant of Declaratory Relief Non-legal claims Matters outside the jurisdiction of municipal courts Validity of Acts of Parliament Internal proceedings of Parliament Intra vires errors of law Hypothetical and academic disputes xxi

9 E. Declarations and the Criminal Law F. Declarations against the Crown G. Standing H. Discretion I. Severance or Partial Invalidity J. Interim Relief K. Effect of Granting Declaratory Relief L. Prospective Declarations M. Declaratory Relief outside Order N. Relator Actions CHAPTER 8 INJUNCTIONS A. Introduction Position prior to Position from 1978 onwards B. Uses of the Injunction in Public Law Restraining public bodies from acting unlawfully Restraining implementation of unlawful decisions Enforcing public duties Injunctions in the nature of quo warranto C. Injunctions against the Crown D. Injunctions and Legislation European Union law and legislation Injunctions and subordinate legislation Injunctions and Parliament E. Interim Relief Serious issue to be determined Balance of convenience: relevance of damages Balance of convenience: the wider public interest Cases involving European Union law xxii

10 Procedure for applying for interim relief in judicial review applications F. Injunctions outside the Judicial Review Procedure Injunctions in aid of the criminal law Criteria for determining whether to grant an injunction Conduct of the defendant Adequacy of the criminal penalties Other considerations Interlocutory injunctions Defences to the action Defences under the European Union law Procedure Injunctions in public law cases Injunctions to enforce a public right Statutory provision for injunctions Injunctions and chartered bodies CHAPTER 9 MACHINERY OF JUDICIAL REVIEW A. Introduction B. Applications for Permission Procedure for applying for permission The Form 86a Need to specify relief sought Need to specify grounds on which relief sought Amendments Written evidence in support of application Applications to be made in London or Cardiff Consideration of the initial application for permission Test for granting permission Arguable case Standing Delay Alternative remedies Discretion to refuse relief Scope of the grant of permission Time-limits for applying for permission and delay Date from which time begins to run where certiorari is sought Two-tier decision-making processes Alternative administrative remedies xxüi

11 Date from which time runs where relief other than certiorari is sought Duties and mandamus Power to reconsider decisions Good reason for extending the time-limit Refusal of permission or relief due to substantial hardship Notification Distinction between criminal and non-criminal or civil matters Renewal of application for permission in a civil matter Renewal of application in a criminal cause or matter Challenging the grant of permission Application to set aside the grant of permission Appeal Striking out Challenging a decision to set aside the grant of permission Interim relief Special directions Expedited hearings Family cases Mode of trial Bail Costs at the permission stage C. Application for Judicial Review Issuing of the claim form Service of the claim form and Form 86a on persons directly affected Written evidence of Service Entering the application Copy of order Respondent's written evidence Duty on applicant to reconsider application Exchange of written evidence Further written evidence Amendment Interlocutory applications Disclosure Circumstances when disclosure may be ordered Public interest immunity and privilege Further information Cross-examination Orders disposing of proceedings Listing of cases Cases ready to be heard XXIV

12 Hearing dates Bundles of documents Skeleton arguments D. The Hearing Parties Forum Bürden of proof Fresh evidence Remedies Damages Conversion to a claim Appeals to the Court of Appeal in non-criminal matters Applications for permission to appeal The appeal Appeals in criminal cases Costs The general rule Two or more respondents Proceedings becoming academic CHAPTER 10 STANDING A. Introduction B. A Uniform Test of Sufficient Interest Test for Standing at the permission stage Test at the hearing meaning of sufficient interest Scope of statutory power or duty Nature of the applicant's interest Procedural entitlement as an interest Public interest in challenge Representative bodies Public interest groups Standing under the Human Rights Act 1998 Challenges to local authority decisions Challenges by public bodies Challenges by local authorities Nature of the breach indication of sufficient XXV

13 C. Effect of a Finding of no Sufficient Interest D. Capacity E. Standing Outside CPR Schedule 1; Order CHAPTER 11 THE DISCRETION OF THE COURT TO REFUSE RELIEF AND THE EXCLUSION OF JUDICIAL REVIEW A. Introduction B. Conduct of the Applicant Delay Prematurity C. Relief of no Practical Use No injustice or prejudice suffered Decision would be the same irrespective of the error D. Impact on Third Parties E. Impact on Administration F. Nature of Decision Nature of the error committed G. Alternative Remedies Existence of alternative remedies Exhaustion of remedies Rationale for the principle Scope of the principle Type of error Distinction between appeal and review Situations in which alternative remedy inadequate Appellate machinery inadequate to resolve dispute Urgency and speed Costs Need for authoritative judicial guidance Relevance of an ultimate right of appeal to a court Preliminary decisions Other exceptional circumstances No appeal available Permission to appeal required Stage at which existence of alternative remedies should be considered xxvi

14 H. Implied Exclusion of Judicial Review Duties and default powers Early exceptions to Pasmore Current approach to alternative remedies and statutory duties Enforcement of statutory right University visitors Judicial review of the visitor Academic employment I. Statutory Exclusion and Restriction of Judicial Review Introduction Final and conclusive and similar clauses Shall not be questioned and similar clauses No certiorari and similar clauses Conclusive evidence and similar clauses Partial ouster clauses As if enacted clauses Statutory reform of ouster clauses Scope of section Measures within section Types of ouster clauses within section Acts within section Remedies restored by section Statutory applications to quash and time-limited ouster clauses Possible exceptions Significance of the Tribunals and Inquiries Act Ouster clauses and European law CHAPTER 12 HABEAS CORPUS A. Introduction B. Scope of the Jurisdiction Nature of review on habeas corpus application Questions of fact Questions of legal validity Bürden and Standard of proof Discretion to refuse habeas corpus Habeas corpus and superior courts of record Habeas corpus and criminal appeals Habeas corpus and the Crown Committals by Parliament xxvii

15 Territorial scope of habeas corpus C. Procedure Application for the writ Powers of the court on an application without notice Procedure at the hearing Power of the court at a hearing Issue of the writ Return of the writ and procedure at the hearing Costs Appeals Other writs of habeas corpus CHAPTER 13 APPEALS AND STATUTORY APPLICATIONS A. Introduction B. Appeal by way of Case Stated General C. Appeals by Case Stated from the Crown Court Jurisdiction to State a case Interlocutory decisions by the Crown Court Procedure for stating a case Lodging the appeal Listing of cases Procedure on appeal Appeals D. Appeals by Case Stated from a Magistrates' Court Jurisdiction to State a case Interlocutory decisions of magistrates' courts Procedure for stating a case Form of the case Lodging the appeal Listing of cases Procedure on appeal Amendment Powers of the court Costs Appeal xxvni

16 Relationship between appeal by case stated and other remedies E. Appeals by Case Stated by Other Public Bodies to the High Court Jurisdiction to hear appeals by case stated Application Interlocutory decisions Procedure for stating a case Proceedings for determination of a case Amendment Appeals by case stated in tax cases F. Appeal by Case Stated to the Court of Appeal Appeal by case stated from the Lands Tribunal Appeal by case stated from other tribunals Proceedings on case stated G. Appeal to the High Court Jurisdiction to hear appeals Procedure for appealing Serving and entering the appeal Amendment Listing of cases Procedure at the hearing Powers of the High Court Planning appeals Appeals H. Appeal to the Court of Appeal I. Appeal to the Privy Council J. Statutory Applications to Quash Jurisdiction to hear applications Standing Time-limits Procedure for applying Witness Statements and affidavits Interim relief Hearing of the application Powers Costs Relationship with other remedies Miscellaneous xx ix

17 CHAPTER 14 DAMAGES AND THE PRINCIPLES GOVERNING PUBLIC AUTHORITY LIABILITY A. Introduction B. Tortious Liability Negligence Introduction Duty Purpose for which a statutory power is conferred Nature of the function Practical consequences of imposing liability Non-justiciable decisions, discretion and the operationalpolicy decision Relevance of alternative remedies Kind of härm Omissions and failure to exercise a power Liability for acts of third parties Negligent misstatement Breach, causation and loss Striking out Nuisance The rule in Rylands v. Fletcher Breach of statutory duty Introduction Relevance of alternative remedies Default powers and administrative remedies Availability of judicial review Obligations imposed for a defined class of persons Non-feasance and highways Conditions of liability Breach of European Union Law Trespass False imprisonment Other torts relevant to the criminal justice System Mode of trial General considerations governing tortious liability in the criminal justice field Liability of the police Exemplary damages Miscellaneous torts Misfeasance in a public office Meaning of public office Malice or knowledge of ultra vires and foresight of härm Causation, proximity and damages XXX

18 Relationship with other torts Immunities Judicial immunity Specific statutory immunities C. Contract Whether contract exists Contract and public sector employment Public law principles and contract D. Restitution Possible defences Recovery of money paid by a public body Procedure Statutory provision for recovery and set-off Charges levied contrary to European Union law E. Relevance of remedial discretion of the courts to private law claims F. Statutory compensation G. Crown Proceedings Introduction Liability in tort Immunities Judicial functions Armed forces Personal liability of the Sovereign Acts not done in respect of the government of the United Kingdom Definition of the Crown Liability in contract Personal liability of the Sovereign Procedure Disclosure, further information and evidence Remedies and execution CHAPTER 15 REMEDIES FOR THE ENFORCEMENT OF EUROPEAN UNION LAW IN NATIONAL COURTS A. The Significance of the Law of the European Union B. Direct Effect The Position Under European Law Treaty provisions Test for direct effect XXXI

19 Partial direct effect Prospective direct effect Regulations Directives Definition of emanation of the State Test for direct effect Decisions Agreements between the European Union and non-member states C. Supremacy of European Law The Position under European Law D. Duty of Construction E. The Obligation to Achieve Füll and Effective Protection F. State Liability in Damages for Violation of European Law G. European Law in the United Kingdom Direct effect Implementation of Community obligations Supremacy of European law before United Kingdom courts Duty of uniform interpretation H. Remedies for Breaches of European Law Principles laid down by the European Court on remedies The need to ensure füll and effective protection The current approach: effectiveness and equivalence Meaning of equivalence The principle of füll and effective protection: specific requirements Breach of European law: appropriate remedies State liability in damages The decision in Francovich Conditions for State liability Substantive and procedural conditions governing State liability in damages Restitutionary claims Other specific remedies Right to a judicial remedy Courts having jurisdiction Availability of interim relief Time limits Interest Ancillary procedural conditions Additional restrictions on national law xxxii

20 I. Remedies in English law Public law remedies Decisions contrary to European law Public law powers and European law Powers and duties derived from European law Primary legislation and Eurpoean law Subordinate legislation and European law Interim relief in public law Role of court Habeas corpus Appeals Private law remedies Damages against a public authority Remedies against private individuals Private law causes of action: damages for breach of statutory duty Injunctions Declarations Negligence Economic torts Miscellaneous torts Innominate tort Statutory remedies for discrimination in employment Equal pay Sex discrimination Restitutionary remedies European law as a defence Civil actions Criminal law CHAPTER 16 REFERENCES TO THE EUROPEAN COURT FOR A PRELIMINARY RULING UNDER ARTICLE 234 (ex Article 177) A. Introduction B. Questions that may be Referred C. Questions of Fact and National Law D. Need for a Genuine Dispute E. Courts and Tribunals which may Refer under Article 234(2) (ex Article 177(2)) Arbitration tribunals U.K. courts and tribunals xxxiii

21 F. Courts and Tribunals which are Obliged to Refer under Article 234(3) (ex Article 177(3)) The House of Lords and the Court of Appeal The Divisional Court in Criminal Cases Administrative tribunals G. Exceptions to the Obligation to Refer in Article 234(3) (ex Article 177(3)) H. Discretion to Refer under Article 234(2) (ex Article 177(2)) I. Approach of the U.K. Courts Decision on question of European law must be necessary General approach to the exercise of discretion Need to determine the facts Need to formulate questions Need to determine questions of national law Previous ruling of the European Court Acte clair Advantages enjoyed by the European Court Delay and cost Difficulty of point of law Position of the court in the judicial hierarchy Desire not to overburden the European Court Wishes of the parties The presence of similar actions before the European Court Stage at which the reference is sought J- K. Procedure before National Courts or Tribunals High Court and Court of Appeal Other courts and tribunals Costs and legal aid Appeals against decisions to refer or refusals to refer Withdrawal of references Procedure before the European Court Effect of a preliminary ruling on questions of validity Effect of a preliminary ruling on a question interpretation of Index 567 XXXIV

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