Post Pandemic Covid 19 Commonwealth Region Judicial Review Constants

By Author: premkumar nadarajan.
Total Articles: 26
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An "interested party" is "any person (other than the claimant and defendant) who is directly affected by the claim". The "directly affected" person must be "affected without the intervention of any intermediate agency". So, for example, the application of certain tobacco companies to be interested parties in an action against the Legal Aid Board's refusal to grant legal aid for personal injuries actions against them was refused. Interested parties are parties to the claim and may therefore appeal the judgment of the court.
An "intervener" is any person granted permission (a) to file evidence or (b) to make representations at the hearing of the judicial review. Generally the court will grant permission if the interveners, through their expertise, are likely to be able to assist the court in understanding either the legal issues in question or the factual basis of the claim. In recent years there has been a striking increase in interventions in judicial review. Interveners have included campaign groups, government departments and companies indirectly affected by the outcome of the review. It should be remembered, ...
... though, that intervention may have costs consequences for the intervening party.

The most common target for judicial review is a "decision", often communicated in a decision letter. However the scope of "targets" for judicial review is very broad. There have been successful applications for permission to bring judicial review in respect of primary legislation, subordinate legislation, policies and schemes, proposals, guidance and opinions.

A claim will often involve several potential connected targets. An example of this would be a planning resolution and consequential planning permission.

There are certain claims which the courts have traditionally not considered. A claim may fail if it is felt to lack substance or materiality. The courts have always been mindful of the fact that proceedings should be proportionate to the issues involved and the remedy sought. They are disinclined to entertain cases which are based on hypothetical or academic issues.

Additionally, the courts are reluctant to entertain challenges to decisions relating to the internal procedures of the United Kingdom Parliament and challenges to decisions of the superior courts of England and Wales (e.g. the High Court, Court of Appeal and Supreme Court). Challenges to decisions relating to the validity of Acts of Parliament have traditionally been outside the remit of judicial oversight although there are certain areas, such as compliance with European Community law, which the courts may investigate.

The courts have also shown an unwillingness to pass judgement on certain issues such as national security and economic policy.

There have traditionally been three grounds for judicial review. These are illegality, irrationality, and procedural impropriety. These categories are not exhaustive nor mutually exclusive.

The most obvious example of illegality is where a body acts beyond the powers which are prescribed for it. In other words, it acts ultra vires (a concept imported from company law). There is a fundamental hierarchy in English law which comprises (1) European legislation, (2) primary legislation, (3) subordinate legislation and (4) decision-making. Illegality can occur where any of these is inconsistent with the parameters imposed by a superior source of law. In April 2013, Npower successfully challenged Milton Keynes Council's decision to implement a new planning document that would introduce minimum separation distances between wind turbines and residential properties on the basis that the document was in conflict with the existing local plan and national legislation on wind energy.

Decisions taken for improper purposes may also be illegal. So, for example, the decision of a council not to do business with Shell on the grounds that Shell had interests in apartheid South Africa was held to be unlawful. While it would have been legitimate for the decision to be taken merely on the basis that it would improve race relations in Lewisham, in this case it had also been taken to exert pressure on Shell to end its involvement in South Africa. This constituted an improper purpose.

A further category of illegality is where a body either abdicates or delegates responsibility for a decision or impermissibly fetters its discretion. It has been accepted that it is a practical necessity of administration that responsibility be devolved (rather than delegated) in certain cases (so, for example, it is permissible for a duly authorized civil servant to exercise a power granted to his Minister). However, a body may not surrender its decision-making responsibilities to another body. Similarly, a body must not blindly follow policy guidelines where it is required to exercise its discretion; it must maintain an open mind.

Illegality also extends to circumstances where the decision-maker misdirects itself in law. When exercising a discretionary power, a decision-maker may take into account a range of lawful considerations. If the exercise of the discretionary power has been influenced by considerations that cannot lawfully be taken into account, or by the disregard of relevant considerations required to be taken into account, a court will normally find that the power had been exercised illegally.

One of the most well-known grounds of challenge is on the basis that a decision is irrational or unreasonable.

In the leading case, a local authority granted a cinema license pursuant to legislation which granted it a discretion to impose such conditions as it saw fit. A license was granted subject to the condition that no children under fifteen years of age should be admitted to Sunday performances with or without an adult. It was held that the authority had not acted unreasonably. The court was entitled to investigate only whether the authority had taken into account matters that it ought not to, or had disregarded matters that it ought to have taken into account.

The courts have raised the bar for irrational or unreasonable behavior. This is because they do not want to stray into territory which requires them to pass judgement on the merits of decisions rather than the process by which they have been made.

One formulation of the test is that an irrational or unreasonable decision must be "so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it".

There has been criticism of the extreme formulations of the test but it remains the case that it is difficult to bring a successful judicial review on the basis of irrationality or unreasonableness.

English law imposes minimum standards of procedural fairness. This concept is founded upon the principle of natural justice. The "twin pillars" of procedural impropriety have been described as "the rule against bias" and "the right to be heard". The right to be given reasons for a decision is also an integral element of procedural fairness.

While actual bias is relatively rare, it is a conclusive factor in disqualifying a decision-maker. More common is where apparent bias is alleged. The courts have adopted a test of whether there is a "real possibility" of bias. In other words, "whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the [decision] was biased".

Thus, where the chairman of a planning committee had a close relationship with developers, apparent bias was found. However, an adjudicator of a construction dispute was not apparently biased in circumstances where he had ruled previously on the dispute and where he had engaged in a telephone conversation with the solicitor of one of the parties.

The right to be heard is fundamental in criminal and asylum cases, but also extends to commercial situations. A flawed consultation process restricting the right to be heard is now a common ground for judicial review. In many situations, a decision maker will be required to consult by statute, and any flaw in that process may vitiate the final decision.

In March 2013, HS2 Action Alliance, a not-for-profit organization working with other action groups opposed to the Government's proposal to build the "High Speed 2" rail link, were successful in their claim that the consultation process for the compensation scheme for blighted properties, on or near the route of HS2, was flawed. The court held that the consultation period was so unfair as to be unlawful. The Government had failed to provide adequate information to consultees on the practical implications of the proposed schemes and had failed to conscientiously consider the claimants' consultation response.

In relation to the right to reasons, there is a large body of case law that supports the existence of this general duty. There is an obvious rationale for reasoned decisions: it enables claimants to assess whether a decision has been made for illegal or irrational reasons.

Allied to the ground of procedural impropriety is the notion of "legitimate expectation". This is sometimes considered as a discrete ground for judicial review and arises where a party has been given an expectation that a body will act in a certain way, either because of express statements from the authority, or from prior conduct. It is likely that for a legitimate expectation to arise there will need to have been a clear promise or evidence of a regular practice.

lecturer at a private learning institution ( UTAR).