JUDICIAL REMEDIES IN PUBLIC LAW

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

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 1-001 B. The Application for Judicial Review 1-004 C. Significance of the Application for Judicial Review 1-007 D. Habeas Corpus 1-011 E. Statutory Mechanisms of Challenge 1-012 F. Damages 1-013 G. European Union law 1-016 CHAPTER2 THE AVAILABILITY OF JUDICIAL REVIEW A. Introducrion 2-001 B. Source of the Power 2-005 Statute 2-005 Non-statutory bodies exercising statutory powers 2-007 xv

Situations where judicial review is inappropriate 2-009 Rationale for judicial review of statutory powers and duties 2-010 Statutory bodies performing a non-public function 2-011 Statutory bodies and private law 2-013 Prerogative 2-017 Availability of judicial review 2-017 Definition of the prerogative 2-018 Scope of judicial review 2-024 Prerogative powers that may or may not be justiciable 2-025 Prerogative powers that are reviewable 2-027 Prerogative powers to regulate the civil Service 2-028 Prerogative powers in foreign affairs 2-030 The prerogative power to grant a pardon 2-034 Prerogative power to consent to relator action 2-038 Prerogative power to stop criminal proceedings 2-040 Miscellaneous prerogative powers 2-041 European Union law 2-042 Sporting bodies and other bodies deriving jurisdiction from contract 2-047 Domestic tribunals 2-047 Judicial control of domestic tribunals 2-056 Criticism of the existing position 2-057 Public bodies acquiring jurisdiction by contract 2-058 C. Nature of the Function 2-063 Bodies performing public functions 2-063 Government or public authority involvement 2-066 Statutory recognition 2-073 The nature and importance of the function 2-080 The absence of private law mechanisms of control 2-083 Common law powers of certain bodies 2-084 D. Miscellaneous Bodies 2-087 Chartered corporations 2-087 The British Broadcasting Corporation 2-092 Universities and Colleges 2-096 The Inns of Court 2-101 Parliament 2-102 Charities 2-103 Superior courts 2-104 E. Subject-matter of the Claim 2-110 Contract 2-114 Power to contract 2-116 Statutory restrictions on the power to contract 2-122 xvi

Public law principles regulating the exercise of contractual power 2-124 Contractual position of the Crown 2-128 Judicial review and employment relationships 2-131 Tort 2-136 Statutory duties 2-138 No, or no live, issue of public law raised 2-142 F. Declarations and Injunctions 2-145 G. Damages and Judicial Review 2-151 H. Power to Order Proceedings to Continue as if begun by Claim 2-152 CHAPTER 3 CHOICE OF FORUM AND THE EXCLUSIVITY OF JUDICIAL REVIEW PROCEEDINGS IN PUBLIC LAW A. Introduction 3-001 B. The Rule in O'Reilly v. Mackman 3-003 Rationale for the rule 3-005 Effect of the rule 3-009 Scope of the rule 3-012 Cases raising only public law issues 3-018 Cases involving only private law issues 3-020 Cases involving both private and public law 3-021 Decisions affecting private law rights 3-021 Public and private law claims arising 3-026 Public law decision a precondition to the creation of a private law right 3-034 Cases involving enforcement of a private law right where a collateral issue of public law arises 3-040 Consent 3-041 C. Defences 3-042 Defences in civil proceedings 3-042 Defences based on the invalidity of the decision to Institute proceedings 3 046 Defence to criminal proceedings 3-049 Decisions to institute criminal charges 3-054 Consequences of a successful defence in criminal cases 3-055 D. Relator Actions 3-058 E. Habeas Corpus 3-059 xvii

F. Declarations against the Crown 3-060 G. Specific Provision for Ordinary Claims 3-061 H. Appeal Procedures and Original Jurisdiction of Tribunals 3-062 I. Assessment of the Rule in O'Reilly v. Mackman 3-064 CHAPTER4 ACTS AND OMISSIONS IN RESPECT OF WHICH JUDICIAL REVIEW IS AVAILABLE A. Introduction 4-001 B. Acts Affecting Individuais 4-004 Decisions and dererminations 4-004 Decisions affecting rights 4-005 Decisions imposing legal sanctions 4-007 Decisions affecting personal liberty 4-009 Decisions affecting livelihood and office 4-010 Decisions affecting legitimate expectations 4-011 Exercises of discretionary power 4-012 Decisions having factual consequences for individuals 4-014 Procedural decisions 4-015 Preliminary decisions 4-018 Decisions on whether or not to institute proceedings 4-019 Recommendations 4-024 Managerial decisions 4-026 Reports 4-028 Advice and guidance 4-033 Conduct or action other than decisions affecting an individual 4-043 C. Acts by one Public Body Affecting Another Public Body 4-048 Central local government relations 4-050 Decisions 4-050 Default powers 4 051 Fiscal controls 4-052 Determining the allocation of authority 4-053 Protection of procedural rights 4-054 Challenges by central government 4-055 Relations between local authorities 4-056 Relations between other public bodies 4-058 D. Measures of General Application 4-059 Acts of Parliament 4-060 Acts of Parliament and European Union law 4 062 xviii

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 4-064 4-065 4-068 4-070 4-071 4-071 4-074 4-077 4-077 4-079 4-080 4-081 4-083 CHAPTER5 INVALIDITY, PARTIAL INVALIDITY AND SEVERANCE A. Introduction 5-001 B. The Ultra Vires Principle 5-002 Basis of the ultra vires principle 5-003 Exception to the ultra vires principle errors of law within jurisdiction 5-004 C. The Meaning of Null and Void in Administrative Law 5-006 Introduction 5-006 Need to establish invalidity 5-009 Methods of establishing invalidity 5-011 Situations where the courts will refuse to intervene 5-012 Consequences when the courts do intervene 5-016 Consequences in contract and restitution 5-017 Consequences in tort 5-020 Void and voidable 5-026 D. Prospective Declarations E. Partial Invalidity and Severance Measures only partially invalid The test for severance or partial invalidity Textual severability 5-029 5-033 5-033 5-035 5-038 xix

Substantial severability 5-040 Measures other than delegated legislation 5-043 CHAPTER6 THE PREROGATIVE REMEDIES: CERTIORARI, PROHIBITION AND MANDAMUS A. Introduction 6-001 B. Certiorari 6-002 The control of ultra vires acts 6-002 The scope of certiorari 6-003 Non-binding acts 6-006 Certiorari and nullities 6-007 Certiorari and subordinate legislation 6-008 Refusals or failure to act 6-010 Threatened unlawful acts 6-011 Restrictions on the availability of certiorari 6-012 The effect of certiorari 6-016 Power to remit 6-019 Variation of sentences 6-021 Severance or partial invalidity 6-022 Standing and discretion 6-023 Interim relief stay of proceedings 6-024 Principles governing the grant of a stay 6-028 Consequences of a breach of a stay 6-029 Errors of law on the face of the record 6-030 Definition of the record 6-031 Definition of error of law 6-032 Effect of certiorari 6-033 C. Prohibition 6-034 Purpose of prohibition 6-034 Prevention of unlawful action 6-035 Conditional prohibition 6-038 Restrictions on prohibition 6-039 Premature applications for prohibition 6-041 Interim relief, Standing and the discretionary refusal of prohibition 6-042 Failure to comply with an order of prohibition 6-043 xx

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 6-044 6-045 6-048 6-053 6-054 6-057 6-058 6-058 6-059 6-062 6-063 6-065 6-066 6-067 CHAPTER 7 DECLARATIONS A. Introduction 7-001 B. Historical Outline Pre-1978 position Position from 1978 onwards 7-002 7-005 7-007 C. Uses of the Declaration in Public Law 7-009 To establish whether a decision, order, conduct or other act is ultra vires 7-012 To establish the invalidity of subordinate legislation 7-014 To specify the consequences of a finding of invalidity 7-016 To determine the extent of the powers of a public body 7-017 To determine the existence and extent of public duties 7-019 To determine rights 7-021 To determine questions of European Union law 7-026 Declarations under the Human Rights Act 1998 7-031 To determine questions of law 7-032 D. Restrictions on the Grant of Declaratory Relief 7-035 Non-legal claims 7-036 Matters outside the jurisdiction of municipal courts 7-037 Validity of Acts of Parliament 7-038 Internal proceedings of Parliament 7-041 Intra vires errors of law 7-042 Hypothetical and academic disputes 7-043 xxi

E. Declarations and the Criminal Law 7-046 F. Declarations against the Crown 7-054 G. Standing 7-057 H. Discretion 7-059 I. Severance or Partial Invalidity 7-060 J. Interim Relief 7-061 K. Effect of Granting Declaratory Relief 7-065 L. Prospective Declarations 7-066 M. Declaratory Relief outside Order 53 7-073 N. Relator Actions 7-074 CHAPTER 8 INJUNCTIONS A. Introduction 8-001 Position prior to 1978 8-003 Position from 1978 onwards 8-005 B. Uses of the Injunction in Public Law 8-006 Restraining public bodies from acting unlawfully 8-006 Restraining implementation of unlawful decisions 8-007 Enforcing public duties 8-008 Injunctions in the nature of quo warranto 8-011 C. Injunctions against the Crown 8-012 D. Injunctions and Legislation 8-015 European Union law and legislation 8-018 Injunctions and subordinate legislation 8-021 Injunctions and Parliament 8-023 E. Interim Relief 8-024 Serious issue to be determined 8-027 Balance of convenience: relevance of damages 8-030 Balance of convenience: the wider public interest 8-032 Cases involving European Union law 8-035 xxii

Procedure for applying for interim relief in judicial review applications 8-037 F. Injunctions outside the Judicial Review Procedure 8-039 Injunctions in aid of the criminal law 8-039 Criteria for determining whether to grant an injunction 8-040 Conduct of the defendant 8-042 Adequacy of the criminal penalties 8-043 Other considerations 8-044 Interlocutory injunctions 8-046 Defences to the action 8-048 Defences under the European Union law 8-050 Procedure 8-052 Injunctions in public law cases 8-055 Injunctions to enforce a public right 8-056 Statutory provision for injunctions 8-057 Injunctions and chartered bodies 8-058 CHAPTER 9 MACHINERY OF JUDICIAL REVIEW A. Introduction 9-001 B. Applications for Permission 9-002 Procedure for applying for permission 9-002 The Form 86a 9-003 Need to specify relief sought 9-004 Need to specify grounds on which relief sought 9-005 Amendments 9-008 Written evidence in support of application 9-009 Applications to be made in London or Cardiff 9-010 Consideration of the initial application for permission 9-011 Test for granting permission 9-014 Arguable case 9-015 Standing 9-016 Delay 9-017 Alternative remedies 9-018 Discretion to refuse relief 9-019 Scope of the grant of permission 9-020 Time-limits for applying for permission and delay 9-025 Date from which time begins to run where certiorari is sought 9-031 Two-tier decision-making processes 9-035 Alternative administrative remedies 9-038 xxüi

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 9-039 9-040 9-041 9-042 9-048 9-049 9-050 9-053 9-058 9-059 9-060 9-063 9-064 9-065 9-066 9-069 9-070 9-071 9-072 9-073 9-076 9-079 9-080 9-081 9-087 9-088 9-090 9-091 9-093 9-094 9-095 9-096 9-098 9-100 9-102 9-108 9-110 9-111 9-113 9-115 9-116 XXIV

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 9-117 9-118 9-119 9-120 9-120 9-123 9-124 9-125 9-127 9-129 9-130 9-131 9-132 9-133 9-136 9-137 9-137 9-139 9-140 CHAPTER 10 STANDING A. Introduction 10-001 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 10-005 10-007 10-008 10-010 10-013 10-017 10-018 10-020 10-024 10-027 10-028 10-032 10-033 10-036 XXV

C. Effect of a Finding of no Sufficient Interest 10-038 D. Capacity 10-039 E. Standing Outside CPR Schedule 1; Order 53 10-040 CHAPTER 11 THE DISCRETION OF THE COURT TO REFUSE RELIEF AND THE EXCLUSION OF JUDICIAL REVIEW A. Introduction 11-001 B. Conduct of the Applicant 11-005 Delay 11-009 Prematurity 11-013 C. Relief of no Practical Use 11-019 No injustice or prejudice suffered 11-022 Decision would be the same irrespective of the error 11-026 D. Impact on Third Parties 11-033 E. Impact on Administration 11-035 F. Nature of Decision 11-040 Nature of the error committed 11-041 G. Alternative Remedies 11-042 Existence of alternative remedies 11-042 Exhaustion of remedies 11-043 Rationale for the principle 11-045 Scope of the principle 11-046 Type of error 11-047 Distinction between appeal and review 11-052 Situations in which alternative remedy inadequate 11-053 Appellate machinery inadequate to resolve dispute 11-057 Urgency and speed 11-059 Costs 11-061 Need for authoritative judicial guidance 11-063 Relevance of an ultimate right of appeal to a court 11-065 Preliminary decisions 11-067 Other exceptional circumstances 11-069 No appeal available 11-070 Permission to appeal required 11-072 Stage at which existence of alternative remedies should be considered 11-073 xxvi

H. Implied Exclusion of Judicial Review 11-074 Duties and default powers 11-075 Early exceptions to Pasmore 11-076 Current approach to alternative remedies and statutory duties 11-077 Enforcement of statutory right 11-079 University visitors 11-083 Judicial review of the visitor 11-085 Academic employment 11-087 I. Statutory Exclusion and Restriction of Judicial Review 11-089 Introduction 11-089 Final and conclusive and similar clauses 11-092 Shall not be questioned and similar clauses 11-095 No certiorari and similar clauses 11-098 Conclusive evidence and similar clauses 11-099 Partial ouster clauses 11-104 As if enacted clauses 11-107 Statutory reform of ouster clauses 11-108 Scope of section 12 11-110 Measures within section 12 11-110 Types of ouster clauses within section 12 11-112 Acts within section 12 11-117 Remedies restored by section 12 11-118 Statutory applications to quash and time-limited ouster clauses 11-119 Possible exceptions 11-122 Significance of the Tribunals and Inquiries Act 1992 11-123 Ouster clauses and European law 11-124 CHAPTER 12 HABEAS CORPUS A. Introduction 12-001 B. Scope of the Jurisdiction 12-002 Nature of review on habeas corpus application 12-004 Questions of fact 12-004 Questions of legal validity 12-009 Bürden and Standard of proof 12-014 Discretion to refuse habeas corpus 12-016 Habeas corpus and superior courts of record 12-019 Habeas corpus and criminal appeals 12-020 Habeas corpus and the Crown 12-021 Committals by Parliament 12-022 xxvii

Territorial scope of habeas corpus 12-023 C. Procedure 12-024 Application for the writ 12-024 Powers of the court on an application without notice 12-026 Procedure at the hearing 12-028 Power of the court at a hearing 12-029 Issue of the writ 12-031 Return of the writ and procedure at the hearing 12-032 Costs 12-033 Appeals 12-034 Other writs of habeas corpus 12-036 CHAPTER 13 APPEALS AND STATUTORY APPLICATIONS A. Introduction 13-001 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 13-002 13-002 13-003 13-003 13-006 13-008 13-010 13-011 13-012 13-013 13-015 13-015 13-017 13-020 13-024 13-025 13-026 13-027 13-028 13-029 13-031 13-032 xxvni

Relationship between appeal by case stated and other remedies 13-034 E. Appeals by Case Stated by Other Public Bodies to the High Court 13-038 Jurisdiction to hear appeals by case stated 13-038 Application 13-039 Interlocutory decisions 13-040 Procedure for stating a case 13-041 Proceedings for determination of a case 13-043 Amendment 13-044 Appeals by case stated in tax cases 13-045 F. Appeal by Case Stated to the Court of Appeal 13-051 Appeal by case stated from the Lands Tribunal 13-051 Appeal by case stated from other tribunals 13-052 Proceedings on case stated 13-054 G. Appeal to the High Court 13-055 Jurisdiction to hear appeals 13-055 Procedure for appealing 13-060 Serving and entering the appeal 13-061 Amendment 13-063 Listing of cases 13-064 Procedure at the hearing 13-065 Powers of the High Court 13-069 Planning appeals 13-070 Appeals 13-073 H. Appeal to the Court of Appeal 13-074 I. Appeal to the Privy Council 13-076 J. Statutory Applications to Quash 13-077 Jurisdiction to hear applications 13-077 Standing 13-080 Time-limits 13-082 Procedure for applying 13-083 Witness Statements and affidavits 13-084 Interim relief 13-085 Hearing of the application 13-086 Powers 13-087 Costs 13-089 Relationship with other remedies 13-091 Miscellaneous 13-092 xx ix

CHAPTER 14 DAMAGES AND THE PRINCIPLES GOVERNING PUBLIC AUTHORITY LIABILITY A. Introduction 14-001 B. Tortious Liability 14-002 Negligence 14-002 Introduction 14-002 Duty 14-005 Purpose for which a statutory power is conferred 14-010 Nature of the function 14-013 Practical consequences of imposing liability 14-021 Non-justiciable decisions, discretion and the operationalpolicy decision 14-023 Relevance of alternative remedies 14-029 Kind of härm 14-031 Omissions and failure to exercise a power 14-034 Liability for acts of third parties 14-037 Negligent misstatement 14-040 Breach, causation and loss 14-044 Striking out 14-045 Nuisance 14-047 The rule in Rylands v. Fletcher 14-051 Breach of statutory duty 14-054 Introduction 14-054 Relevance of alternative remedies 14-057 Default powers and administrative remedies 14-058 Availability of judicial review 14-061 Obligations imposed for a defined class of persons 14-064 Non-feasance and highways 14-069 Conditions of liability 14-070 Breach of European Union Law 14-072 Trespass 14-073 False imprisonment 14-075 Other torts relevant to the criminal justice System 14-080 Mode of trial 14-081 General considerations governing tortious liability in the criminal justice field 14-082 Liability of the police 14-082 Exemplary damages 14-083 Miscellaneous torts 14-086 Misfeasance in a public office 14 087 Meaning of public office 14-088 Malice or knowledge of ultra vires and foresight of härm 14-090 Causation, proximity and damages 14 093 XXX

Relationship with other torts 14-097 Immunities 14-098 Judicial immunity 14-098 Specific statutory immunities 14-103 C. Contract 14-104 Whether contract exists 14-105 Contract and public sector employment 14-106 Public law principles and contract 14-107 D. Restitution 14-110 Possible defences 14-113 Recovery of money paid by a public body 14-115 Procedure 14-116 Statutory provision for recovery and set-off 14-119 Charges levied contrary to European Union law 14-120 E. Relevance of remedial discretion of the courts to private law claims 14-122 F. Statutory compensation 14-123 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 14-124 14-124 14-125 14-128 14-128 14-129 14-130 14-131 14-132 14-134 14-138 14-139 14-142 14-143 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 15-001 15-004 15-004 15-005 XXXI

Partial direct effect 15-011 Prospective direct effect 15-012 Regulations 15-015 Directives 15-017 Definition of emanation of the State 15-019 Test for direct effect 15-024 Decisions 15-025 Agreements between the European Union and non-member states 15-027 C. Supremacy of European Law The Position under European Law 15-029 D. Duty of Construction 15-031 E. The Obligation to Achieve Füll and Effective Protection 15-032 F. State Liability in Damages for Violation of European Law 15-033 G. European Law in the United Kingdom 15-034 Direct effect 15-034 Implementation of Community obligations 15-037 Supremacy of European law before United Kingdom courts 15-040 Duty of uniform interpretation 15-045 H. Remedies for Breaches of European Law 15-049 Principles laid down by the European Court on remedies 15-049 The need to ensure füll and effective protection 15-051 The current approach: effectiveness and equivalence 15-052 Meaning of equivalence 15-054 The principle of füll and effective protection: specific requirements 15-056 Breach of European law: appropriate remedies 15-056 State liability in damages 15-058 The decision in Francovich 15-058 Conditions for State liability 15-061 Substantive and procedural conditions governing State liability in damages 15-067 Restitutionary claims 15-069 Other specific remedies 15-070 Right to a judicial remedy 15-071 Courts having jurisdiction 15-072 Availability of interim relief 15-073 Time limits 15-074 Interest 15-076 Ancillary procedural conditions 15-077 Additional restrictions on national law 15-078 xxxii

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 15-079 15-080 15-081 15-082 15-083 15-084 15-086 15-088 15-091 15-093 15-094 15-096 15-097 15-104 15-105 15-107 15-109 15-110 15-111 15-112 15-113 15-114 15-116 15-117 15-118 15-122 15-122 15-123 CHAPTER 16 REFERENCES TO THE EUROPEAN COURT FOR A PRELIMINARY RULING UNDER ARTICLE 234 (ex Article 177) A. Introduction 16-001 B. Questions that may be Referred 16-003 C. Questions of Fact and National Law 16-004 D. Need for a Genuine Dispute 16-005 E. Courts and Tribunals which may Refer under Article 234(2) (ex Article 177(2)) 16-006 Arbitration tribunals 16-012 U.K. courts and tribunals 16-013 xxxiii

F. Courts and Tribunals which are Obliged to Refer under Article 234(3) (ex Article 177(3)) 16-014 The House of Lords and the Court of Appeal 16-016 The Divisional Court in Criminal Cases 16-019 Administrative tribunals 16-021 G. Exceptions to the Obligation to Refer in Article 234(3) (ex Article 177(3)) 16-023 H. Discretion to Refer under Article 234(2) (ex Article 177(2)) 16-027 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 16-029 16-030 16-033 16-034 16-037 16-038 16-039 16-040 16-042 16-043 16-045 16-047 16-048 16-049 16-050 16-051 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 16-053 16-053 16-055 16-056 16-057 16-059 16-060 16-064 of 16-065 Index 567 XXXIV