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Judicial Review and Remedies in Public Law

Judicial Review and Remedies in Public Law

Judicial review is a form of legal proceeding in England and Wales that enables an individual (a claimant) to ask the court (the Administrative Court, which is a specialist court within the Queen’s Bench Division of the High Court) to review a decision made by a public body (the defendant), ultimately with a view to having that decision quashed.

Indeed, the Administrative Court has considerable leeway when assessing whether or not relief should be given to the claimant.

Public law is the branch of law which deals with the legal principles that govern public bodies. Whilst public law issues can often be remedied through recourse to Ombudsmen and complaint procedures, this article will focus solely on the relief that judicial review can offer an individual aggrieved by a decision made by a public body.

When a proposed claimant makes an application for judicial review, he must, amongst other things, fill in a claim form. One of the sections of the claim form requires him to stipulate what remedy he is asking the court to provide. In summary, the following remedies are available for the court to grant the claimant if his application for judicial review is successful:

  • court orders (quashing orders, mandatory orders, prohibiting orders)
  • injunctions
  • declarations
  • damages.

Judicial Review: A Discretionary Remedy

Judicial review is a discretionary remedy. This means that just because a claimant establishes that a public body has erred in law, he is not automatically entitled to the remedy he seeks, or indeed, any remedy at all. Indeed, the Administrative Court has considerable leeway when assessing whether or not relief should be given to the claimant. Lord Justice Hobhouse in Credit Suisse v Allerdale Borough Council [1997] QB 306 at 355D said:

The discretion of the court in deciding whether to grant any remedy is a wide one. It can take into account many considerations, including the needs of good administration, delay, the effect on third parties, the utility of granting the relevant remedy. The discretion can be exercised so as partially to uphold and partially quash the relevant administrative decision or act.

In addition to these factors, the Administrative Court may also consider the following when exercising its discretion:

  • if the claimant failed to make proper disclosure
  • if the application is, or becomes, ‘academic’ (that is to say if the claimant suffers no actual injustice as a result of the public body’s decision, or if the issue is a wholly hypothetical one)
  • if there is an alternative remedy available to the claimant.
Quashing orders

A quashing order is a form of court order by which the Administrative Court quashes the decision challenged in the judicial review. This means that the original decision is nullified and remitted to the defendant decision-maker who must reconsider the decision in light of the court’s findings. The defendant is at liberty to make the same decision again, however, given that its decision-making process has already been scrutinised, it is more likely to make a lawful decision the second time around. It is important to note that the Civil Procedure Rules (CPR) state that where a quashing order is made, the court is not compelled to remit the decision. Rather, Rule 54.19(2)(b) of the CPR states that the court may:

‘in so far as any enactment permits, substitute its own decision for the decision to which the claim relates.’
This power can only be used if the decision in question was made by a court and there is no other decision that the court could make according to Section 31(5A) of the Senior Courts Act 1981 (SCA).

Quashing orders are used to quash decisions of the criminal courts (for example, decisions as to convictions or sentencing) and also decisions of the executive (for example, planning decisions).

Mandatory orders
A mandatory order requires the defendant in judicial review proceedings to do something, namely, to carry out the duty that it is obliged to execute by law . An example of where a mandatory order may be an appropriate remedy, is if the claim is grounded on the assertion that a court has wrongly declared that it has no jurisdiction and therefore fails to consider a particular matter. Under these circumstances, if a mandatory order is given, the court in question, by virtue of the order, is compelled to make the decision it failed to make in the first place.

The Administrative Court has the discretion to not make a declaration.

Prohibiting orders

A prohibiting order prevents a public body or court from acting beyond its powers in the future. Prohibiting orders are particularly useful as they may be sought to prevent a decision being made in excess of jurisdiction, even if there is a right to appeal the decision.

Injunctions

Injunctions are often sought as interim relief in judicial review proceedings. There are various types of injunctions, but in essence, injunctions can either compel a party to do something or prohibit a party from doing something.

Declarations

Declarations are statements in which a High Court judge clarifies the law through stating the law as an order. They are central to the purpose of judicial review, since judicial review in itself aims to ensure that decisions are made lawfully. Declarations help decision makers make lawful decisions because they often provide much needed clarification on matters of law. Section 31(2) of the SCA states the circumstances in which a declaration may be granted:

A declaration may be made or an injunction granted under this subsection in any case where an application for judicial review, seeking that relief has been made and the High Court considers that, having regard to:

(a) the nature of the matters in respect of which relief may be granted by mandatory, prohibiting or quashing orders

(b) the nature of the persons and bodies against whom relief may be granted by such orders and

(c) all the circumstances of the case, it would be just and convenient for the declaration to be made, or the injunction be granted, as the case may be.

Declarations of Incompatibility

Courtesy of the Human Rights Act 1998 (HRA), the Administrative Court may now make a declaration of incompatibility. Such a declaration however, can only be made after the court has attempted to read the primary legislation in a way that is compatible with the European Convention on Human Rights. Declarations of incompatibility made by the Administrative Court are rare given that Section 3 of the HRA states that the court must strive to interpret legislation in a way that is compatible with the Convention so far as is possible to do so.

Even if the Administrative Court cannot construe the primary legislation in a way that is compatible with the Convention, this does not automatically mean that a declaration of incompatibility should be made. The Administrative Court has the discretion to not make a declaration.

Damages

Section 31(4) of the SCA gives the Administrative Court the power to award damages (monetary compensation) at the conclusion of a judicial review, if:

(a) the application includes a claim for such an award arising from any matter to which the application relates; and

(b) the court is satisfied that such an award would have been made if the claim had been made in an action begun by the applicant at the time of making the application.

Damages can only be granted if another judicial review remedy is being sought. That is to say, in judicial review proceedings, damages cannot be requested on their own. There is no general right to damages for breaches of public law. Damages in judicial review cases may be claimed in three limited situations:

  • where damages would have been available as a remedy if the claim had been brought as a private law action against a public body, for example, a claim in negligence
  • where ‘just satisfaction’ is sought for breach of the HRA (Sections 8 and 9) and
  • where the claimant has successfully demonstrated that the defendant has infringed upon an individual’s right under European Union law (Francovich and Bonifaci v Italian Republic [1993] 2 CMLR 66).
Power to vary sentence following judicial review

In respect of the judicial review of a criminal court’s decision, the Administrative Court has the power to vary a sentence imposed by either the magistrates’ court or Crown Court following a committal for sentence or an appeal against a sentence. Such a variation can only be made if there has been a successful application for a quashing order according to Section 43(1) of the SCA.

 
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