Judicial Review Remedies

The remedies granted in judicial review reflect the historical State-side prerogative order, namely certiorari, prohibition, and mandamus. Following revisions to court rules, effective since 1978, awards of damages and other remedies may be allowed. The remedies that may be awarded are now flexible. Certiorari quashes a decision, which is of no legal effect. It retrospectively declares the decision to be void on the basis that the parties, that the decision-maker has acted in breach, outside his powers or ultra vires.

Prohibition prevents a body from making a decision that would be outside its powers.

Mandamus compels a public body to perform its duty. This may not be a duty, it prevents unlawful failures to fulfill a duty. The obligation may be simply to consider a particular state of affairs or person’s interest. It does not compel a particular, necessarily or even often compel a particular outcome.

A declaration declares the true legal position. Public bodies are obliged by law to comply with declarations notwithstanding that they have no formal enforcement mechanisms.

Injunctions or damages may be awarded in personal injuries cases. Damages may be awarded in the same manner as if the action had proceeded by civil, in the manner of normal civil proceedings.

In criminal cases, the application of habeas corpus may be brought requiring justification of the legality of detention.

The Human Rights Act entitles the courts to grant such relief or remedy or make such order as within its powers, as it considers just and appropriate. This includes declarations, damages, injunctions, and the above judicial remedy review type remedies. In principle, an award of damages may be made against the Crown, where the judicial bodies have breached Convention rights. Where the Convention rights are breached by an Act of Parliament, no damages may be awarded. The courts may make a declaration of incompatibility.

The Criminal Justice and Courts Act 2015 amends the Supreme Court Act 1981 to require that in an application for judicial review, an application is to be refused if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. The requirement does not apply if it appears to the court that there are reasons for exceptional public interest to disregard it.

The court may act on its own motion or may act on an application by the respondent. Where the applicant cannot demonstrate that the result would be substantially different, leave for judicial review must be refused. The same principle applies both at the leave stage and at the substantive stage.

The legislation was passed in response to the perception that a large number of unmeritorious judicial review applications were clogging up the system and holding up reform.

The legislation requires the applicant to furnish information to the court regarding the financing of the application. Particulars of the source, nature, and extent of the financial resources available to meet the cost of the application must be furnished.

A court may not order a party to judicial review proceedings to pay the cost of an intervener unless the court considers there are exceptional circumstances that make it appropriate to do so. The intervener will be ordered to pay any costs that have arisen as a result of its intervention in the following circumstances:

• The intervener has acted as the sole principal applicant, respondent, or appellant.
• Its evidence and representations taken as a whole have not been of significant assistance to the court.
• A significant part of its evidence and representations relates to matters that were not necessary for the court to consider in order to resolve the issues in the applications, or the intervener has acted unreasonably.

The court need not require the intervener to pay costs if there are exceptional circumstances that make it appropriate not to do so.

The existence of alternative remedies has always been a center for consideration in judicial review matters. If there is an alternative remedy available, this should first be generally exhausted. Accordingly, many legal schemes of administration have internal rights of appeal. They must generally be exhausted other than in exceptional circumstances.

Generally, judicial review proceedings must be brought under the procedures for judicial review. The timelines are much tighter, and the requirements much more exacting than in a private action. It is possible for a judicial review to continue as a private action or as if commenced by a writ or originating summons (now a claim form). Generally, however, public law matters may not be commenced by ordinary proceedings.

There are exceptions to the rule of exclusivity, so-called, in particular where the public element is collateral or secondary to the private law element. Courts may seek a balance between denying justice, between the effect of denying justice/judicial review or misuse of the private law proceedings to avoid the requirements of judicial review by way of leave and time limit.

A public law claim may be used as a defense in private proceedings. This is not an abusive proceeding, as it involves defending against a claim initiated by a third party, generally in this case a public authority.

Where cases involve mixed private law and public law issues, the fact judicial review could have taken does not disable the matter from being litigated in ordinary proceedings, and ordinary private law remedies being granted. It appears that judicial review may not be taken by way of defense in criminal proceedings. For example, challenging administrative enforcement.

The appropriate procedure is to seek an adjournment and apply for judicial review. It may be possible to raise public law issues and validity directly in criminal proceedings by way of defense. In some cases where the relevant act, administrative act is wholly invalid, has no legal basis.

The English courts do not adopt the rigid administrative public law meets private law approach of continental courts, in particular the French system. Public law issues may be aired in a private law action. The courts will be reluctant to introduce rigidity which applies to the form of action before the merits of the case.

Commencement of private law proceedings may be appropriate in cases where mixed elements of contract and public law are involved. It’s only where it is an abusive process, that the relevant issue was whether it would constitute an abusive process to proceed by private ordinary claim proceedings, non-judicial review proceedings.

The issue may arise as to whether the particular legislation is intended to found a private right in the context of a breach of statutory duty. Where there is a substantial element of discretion in an implementation required by the public body, it is unlikely that a private right of action is intended.

The issue arises in the case of many private bodies which are founded in contract, but have a public law dimension. In these cases, the courts where there is a clear contractual right under the rules, the courts are more likely to allow private law proceedings and will not insist the matter be brought by way of judicial review.

There are some matters which are outside the scope of judicial review on constitutional grounds. In particular, the separation of powers may make certain executive actions immune from examination by the courts.

Matters of high-level public policy are not justiciable, including matters of political decisions, controversial political decisions. The more political the decision, the less likely it is to be open to challenge other than in cases of clear bad faith, absurdity, or patent improper motive.

Matters of economic policy and choices in the use of public resources will fall into this category. Even where particular policies, priorities are laid down by law, and targets are provided, the executive would have considerable leeway in terms of allocation of resources. Generally, the courts will be reluctant to make orders, which would have the effect of significantly affecting the allocation of resources and undermining the authority’s budget and finance.

Courts are deferential to the executive and are reluctant in this context to trespass on decisions which were appropriately made by the democratically elected government.In a number of instances, the UK courts have proceeded on the basis of deference to the executive, whereas higher European courts have been more willing to find breaches of Convention right.

The courts are especially deferential to Acts of Parliament. Where a balance is to be struck in terms of Convention rights within the State’s margin of appreciation, there is greater scope for deference. Matters which are more within the prominence of the courts should be more readily considered, such as individual disputes, than matters which are traditionally those within the competence of government.

However, courts may declare incompatibility with the Human Convention rights, notwithstanding that it may involve political matters. Accordingly, where persons were detained indefinitely, non-nationals were detained indefinitely, certain provisions of the anti-terrorism legislation were declared to be incompatible with Convention rights to liberty, although the courts were always narrow, the more political the question is. Although national security is a matter on which courts will generally refer to Parliament, discriminatory, disproportionate, indefinite detention powers were the subject of deference.

The Supreme Court ruled in 2014, in relation to deference, that where the executive’s decision is based on matters in relation to which the courts do not have the evidence, experience, or institutional legitimacy to form its own view with confidence, the court will only interfere in exceptional circumstances. In the case of economic, diplomatic matters, international matters, and public safety, the matter should be generally entrusted to the executive which has the relevant experience, material, and competence, and its decision should be given great respect.

However, in limiting fundamental rights, the objective must be sufficiently important, and the measures taken must be rationally connected with it and be proportionate, striking a fair balance between the interest of the individuals and the public.

Parliament may, in principle, limit judicial review. In view of the sovereignty of Parliament, courts must give effect to clauses but interpret them restrictively. There is a strong presumption that Parliament does not intend to limit access to the court and the court’s jurisdiction.

Relatively strict, three-month time limits are well established as legitimate in the interest of public administration that there be finality. Statute may seek to prohibit judicial review entirely. If the wording is sufficiently clear to cover any challenge, effect will be given to it. However, the courts will strain not to give such a meaning, where possible.

Apparently clear wording making decisions final have been interpreted by the court not to preclude judicial review. It may imply that the decision is final, referring to an appeal but not to the possibility of judicial review.

An ouster may be more likely to be given an error within jurisdiction than in the case of a fundamental error, patently outside jurisdiction.

Courts have interpreted clauses, ouster clauses, the effect of the decision shall not be questioned in a court of law as inapplicable to decisions taken outside jurisdiction in the famous Anisminic case, 1969 House of Lords.