Step 2 - Grounds of Judicial Review

This Chapter Includes:

Once a person has successfully passed all of the hurdles in stage one and has been granted a permission to apply for Judicial Review, he can proceed to stage two. There must be valid ground/grounds to pursue a claim under Judicial Review.

Illegality / Ultra Vires Decision Includes

  • Error of law
  • Error of Facts
  • Onerous Conditions
  • Use of power for the wrong purpose
  • Relevant consideration and Bad Faith
  • Fettering Discretion
  • Unauthorised use of power
  • Failure to Act and Comply with Policy

Irrationality

  • Unreasonableness
  • Proportionality

Procedural Impropriety

  • Failing to comply with mandatory procedures
  • Breach of natural justice
  • Breach of Article 6 of the European Convention on Human Rights
  • Bias
  • The Right of fair hearing
  • The Duty to act fairly
  • The Duty to give reasons
  • Legitimate expectation

Illegality (Ultra vires)

Ultra Vires refers to an action which is outside or in excess of the powers of the decision-making public body. Illegality includes “acting for an improper motive, failing to take account of relevant circumstance, failing to respect the requirements of natural justice, being unreasonable”. Courts aim to ensure that the decision-maker has acted according to law and has not gone beyond the powers given to them

Error of Law

The error of law occurs, where a public body misinterprets or misunderstands the powers which it has been given. Going beyond these powers will make the decision ultra vires and hence illegal

Error of Facts

Only where the mistake of fact is one which is central to the decision maker’s power of decision will it? be held as an error of facts. Crucial errors of facts will be reviewed by courts or where the decision is reached on the basis of facts for which there is no evidence or use of wrong facts or where facts are ignored, these situations will provide some valid grounds for a Judicial Review.

Onerous (Difficult) Conditions

A decision is illegal and may also be unreasonable if the conditions attached to the decision are difficult or impossible to perform.

Use of Power for the wrong purpose

Powers given to a public body must only be used for the purpose it is given. Whenever the power given to a public body is used for a wrong purpose it will make the decision illegal and provides valid grounds to seek Judicial Review

Relevant consideration and Bad Faith

Whenever a public body uses irrelevant consideration into account to reach a decision or wherever there is a failure to decide a case in the manner required by law, this will be illegal and provides valid grounds for Judicial Review

Fettering Discretion

A public body must exercise the discretion given to it when making a decision. It must not adopt a rigid policy which may result in the refusal of an application under a certain category. The authority may act ultra vires(illegal) where it fetters (restricts) the discretion given to it.

Unauthorised Delegation of Power

An unauthorised delegation of power by a public body to another body or person, who makes the decision will make the decision illegal.

Failure to Act and Failure to Comply with policy

A Public body may be under a statutory duty to take actions and comply with the policy. It may be held to be acting illegally if it fails to act when it is under the duty to act or comply with the policy. This is a complex area of law and claimants including self-representing litigants should seek professional advice.

Irrationality

Unreasonableness

A decision is unreasonable and irrational where a public body has acted or reached a decision in a manner so unreasonable that no reasonable public body could have come to it or could have to make such a decision.

“Unreasonableness” is an umbrella term which entails “unreasonableness”, “bad faith”, “dishonesty”, “paying attention to irrelevant circumstances”, and “disregard of a proper decision-making process”.

Proportionality

The Human Rights Act 1998 has provided an additional basis for Judicial Review, on which the legality of actions of the public body will be tested. Breach of human rights is a valid ground for Judicial Review. Proportionality requires that in decision making the public body must always ensure to strike a fair balance between the rights of the individual and the interests of the community. The decision must be proportionate and does not violate the human rights of the applicant.

Final ground for Judicial Review

Procedural Impropriety

Procedural Impropriety is referred to as a failure by a public body to “comply” with the “procedures” laid down by statute.

Failing to comply with mandatory procedures

The breach of mandatory procedural requirement will make the decision invalid and will be grounds for a Judicial Review

Breach of natural justice

It means that those who are affected by the decision maker’s decision should be dealt with in a fair manner. The rules of natural justice require that the proceedings must be conducted in a way which is fair and fair in all circumstances.

Breach of Article 6 of European Convention on Human Rights

Everybody has a right to a fair trial under Article 6 of the European Convention on Human Rights. Breach of a fair trial will invalidate a decision.

Bias

Any bias from the public body and the decision maker will invalidate the decision. The foundation of any justice system lies on a fair hearing. It is often quoted that justice should not only be done but should undoubtedly be seen to be done. Bias includes financial and non-financial bias and is another ground for Judicial Review

The Right of fair hearing

This includes

  • The right to be given notification of the hearing
  • The right to be given indication of any adverse evidence
  • The right to be given an opportunity to respond to the evidence
  • The right to an oral hearing
  • The right to legal representation at a hearing
  • The right to question witnesses

The Duty to act fairly

The person whose right has been affected, he/she must have the opportunity both to know and understand any allegations made and to make representation to the decision maker to meet the allegations

The Duty to give reasons

The decision maker is under an obligation to provide the applicant with the reasons for the decision in most cases or provide adequate information as to the basis on which a decision has been reached

Legitimate expectation

Where a person has been led to understand by the words or actions of a decision maker that certain procedures will be followed in reaching a decision, this will give rise to a legitimate expectation in the mind of the complainant.

Example

  • Ali was led to believe that there would be an oral hearing, this will give rise to legitimate expectation on Ali’s part that an oral hearing will take place
  • Michael was led to believe that he would be able to make a formal representation, this will give rise to legitimate expectation to make a formal representation

Where such expectations have been created, the decision maker or the public body is not free to ignore the procedure which has been promised or indicated.

Remedies

The granting of a remedy in Judicial Review proceedings is at the discretion of the court. Even where the claimant has established his case, the court has discretion or may refuse a remedy if there has been a delay in commencing proceedings or where the applicant has acted unreasonably, or where it is against the public interest to award a remedy.

A court may award the following remedies

  • Quashing Orders: A quashing order sets aside the original decision or nullifies the original decision.
  • Prohibiting Order: It prevents a body from making any further decision which is capable of being quashed/nullified by quashing orders
  • Mandatory Order: It compels an authority to act in a particular way in making a new decision and a failure to comply with the mandatory order is a serious offence and may amount to contempt of court
  • Declarations: A declaration is a statement of the legal position of the parties, public bodies or authorities who are required to respond to a declaration and comply with the terms by rectifying their actions.
  • Injunctions: They are court orders to stop someone doing something. In Judicial Review an injunction will stop or restricts a public body from acting in a particular manner. Injunctions may be interim or permanent but are used to prevent a public body from acting unlawfully
  • Damages: The court can award damages as well in appropriate cases. Damages are monetary in value and are awarded to compensate a person for his losses and intended to place him in a position where he could have been, had the right decision been made
  • Habeas Corpus: They are used to challenge the legality of a decision to detain an individual and are used to bring a person who is under arrest in front of the court to secure a release. They amount to production orders for the release of a detainee.

Important Note

There can be more than one grounds to rely on when pursuing a Judicial Review. A decision can be argued on illegality, irrationality and procedural impropriety at the same time. Judicial Review is a complex process and should be conducted or carried out with the advice and expertise of a lawyer.

Disclaimer

While every effort has been made to ensure the accuracy of the information provided in this article, it does not constitute legal advice and cannot be relied upon as such. Each legal case and issue may have unique facts and circumstances, as a result legalally does not accept any responsibility for liabilities arising as a result of reliance upon the information provided. For further help and guidance, you can always rely on and seek advice from our experienced lawyers.