Judicial review

Step 1: Public law matter / Public body:

Judicial review is concerned with the power of judges to check and control the activities and decisions of governmental bodies, tribunals, inferior courts and the decisions of some private bodies that affect the public.

In its reviewing capacity the court is essentially looking to see whether a decision-making body has acted ‘ultra vires’ or ‘intra vires’. The term ‘ultra vires’ means ‘without power’ while ‘intra vires’ means ‘within power’. If a decision-making body acts ultra vires the reviewing court has the discretion to intervene.

Unlike the appeal process, JR is concerned only with the manner, or procedure, by which an administrative decision was reached-and neither with the facts of the case nor with the substantive merits of the decision.

In the legal appeals system, by contrast, the applicants ask the appellate court to reconsider their case and substitute their decision for that of the lower court. It follows that, in exercising JR of a public body’s decision, the High Court will determine only whether that body has applied the relevant rules laid down by statute and the common law: it will not produce a decision that substitutes the original one.

In sum it is accepted that JR ‘is not an appeal from a decision, but a review of the manner in which the decision was made’.

In other words, the role of the court in JR is to exercise a supervisory, not appellate, jurisdiction. This principle is reflected in the nature of the specific grounds, or reasons, on the basis of which JR may be successfully sought. On the other hand, although having a limited jurisdictional scope by comparison to statutory appeals, JR requires no statutory basis, whereas appeals do. In other words, JR is an inherent jurisdiction of the court, not one granted to it by Parliament. That said, Parliament could impose limits on the exercise of JR (See, Ouster clause)

According to the law, the process of JR begins by an application by an interested party, i.e. a natural person or legal personality that is affected negatively by the administrative action or decision in question. There is no automatic, or ‘unfettered’, right to JR-rather, the interested party must first seek the court’s permission or ‘leave’ to apply for JR.

Judicial Review is governed by the Supreme Court Act 1981 and Order 53 of the Rules of the Supreme Court. One must seek the court’s leave to apply for JR and the granting of such leave depends on a number of conditions being met: a) the matter must be of public, not private, law nature (the ‘exclusivity principle’); b) the source of the decision/action against which the complaint is made must be a ‘public body’ in view of its functions; c) the matter must be considered ‘justiciable’, i.e. not a matter of public policy, but it is the court which decides on this and the exercise of the royal prerogative may be reviewed; d) the applicant must have standing, that is sufficient interest in the matter. Traditionally the interest must be personal but, at times, the court will also consider applications by individuals or groups concerned with the ‘public interest’. e) the application for JR must be made within three months of the challenged decision/ action, or within any other time-period as specified by clauses in specific statutes; f) the application must not be precluded by a clear and un-ambiguous statutory clause; g) all other alternative remedies must have previously been exhausted; h) the applicant must be seeking JR on the basis of at least one of the grounds that the court has recognized as acceptable for the purposes of JR, i.e. illegality, irrationality and procedural impropriety.

a) the matter must be of public, not private, law nature

The distinction between public and private law is important in relation to remedies. Furthermore, judicial review is only available against public bodies, not private bodies; they do not have ‘legal authority’ merely rights and duties under contract: O’Reilly v. Mackman.

b) Is the decision in question subject to JR? b) the source of the decision/action against which the complaint is made must be a ‘public body’ in view of its functions;only public law issues are subject to judicial review. One such example would be the decision of a public body, such as a local authority or Government Department.

The difficulties arise where the matter in issue concerns an activity/ decision emanating from a private body. The court in R v. Panel on Take-overs and Mergers, ex parte Datafin (1987), offered guidance that a decision emanating from a private body would be reviewable if that body had the power to take decision which affected the public.

In R v Jockey Club, ex parte Aga Khan (1993), the decision of the Jockey Club was not amenable to JR on the basis that its powers were not governmental in nature and because the club’s members had agreed to be bound by its rules (i.e, it was a voluntary contract)

However, the master of the rolls indicated that Jockey Club decisions could have been subject to JR had the applicant not been in a contractual relationship with it. This could have included members of the general public, as well as Jockey’s and trainers etc, who had chosen not to be bound by the Jockey club’s rules.

In R v. Insurance Ombudsman Bureau, ex Parte Aegon Life (1994), the divisional court held that decisions were not amenable to JR if the decision-maker’s power was contractual.

The current position is therefore that the decision of a private body may be subject to judicial review as long as its powers are:

a)      governmental in nature; and

b)     those affected are not in a contractual relationship with the decision making-body.

In Football Association of Wales, ex Parte Flint Town United Football Club (1991), the existence of a contractual relationship between the club and the Association was decisive (final) in the courts’ decision that JR would be inappropriate.

Step 2: Procedure to commence claim

X would apply for JR under Civil Procedure Rules Pt 54 to a judge in the Administrative Court of the High Court. He would specify on a claim form the facts upon which the claim is based, among other things, the decision under review, the remedies sought and the grounds for review. Furthermore, the claim must be made promptly and so later than three months from the decision to be challenged, subject to shorter time limits.

Judicial review has, in recent times, been governed by s. 31 of the Supreme Court Act 1981, and Order 53 of the Rules of the Supreme Court 1965, although since 2nd October 2000, Order 53 has been replaced by the Civil Procedure Rules, Part 54.

Step 3. Clauses:

a) Locus Standi:

Applicants must show that they have a sufficient interest in the matter to which the application relates under O 53 R 3(7). Under CPR Pt 54, applicants must be directly affected by the decision in order to have the necessary locus standi. This includes victims under the Human Rights Act 1998.

The question of what amounts to such a sufficient interest under the old order 53 was dealt with in R v. IRC ex P National Federation of Self employed (1982). Since then, the courts have taken an increasingly relaxed approach to the question of what amounts to sufficient locus.

In Covent Garden Community Association v. GLC (1981), the Association formed to safeguard and represent the interests of covent Garden residents had locus standi to seek certiorari to quash a decision of the council to grant planning consent in respect of premises in the area owned by the council.

In R v. Poole BC ex Parte Beebee & others (1991) the BHS had Locus Standi to challenge the council’s decision to grant itself planning permission to develop part of a health.

More recent cases have taken even more generous approach to the question of Standing. In Inspectorate of Pollution ex P Greenpeace (1994), where the court found that members of the group had a personal interest in a matter of substantial concern-public health.

Similarly, in Secretary of State for the Environment ex P Friends of the Earth (1994), in which Friends of the Earth and its director were granted leave to challenge a decision related to the quality of drinking water in certain specified areas, the fact that the director lived in one of those areas-London-and, hence, had a personal local interest in the matter was stressed as significant.

b) Ouster Clauses:

These clauses are inserted by Parliament in Acts that delegate law-making powers to public bodies, with the intention to exclude JR. such clauses provide that a subordinate piece of legislation shall have effect ‘as if enacted in this Act’, thereby offering the public body in effect the same immunity from judicial scrutiny as enjoyed by Acts of Parliament, under the doctrine of parliamentary sovereignty. In other instances, a statute could contain less conclusively worded causes that may have the effect of excluding JR-these clauses are called ‘ouster clauses’.

In this case, the Act states, ‘the decision of the Minister shall not be called into question’. The clause in a statute attempted to exclude the right to JR. The court would consider whether it was really Parliament’s intention that there should be no right to challenge any decision made under the Act, or whether Parliament intended to restrict rights of appeal rather than to deny access to JR. Applicant might argue that such attempts at exclusion will never oust the court’s jurisdiction.

The clause stating that a decision of the Tribunal ‘shall be final’ would not exclude the courts jurisdiction to review: R v. Medical Appeal Tribunal, ex Parte Gilmore (1957), L Denning stated that ‘the remedy by certiorari is never to be taken away by statute except by the most clear and explicit words’ and that the word ‘final’ only meant ‘without appeal’ and not without recourse to certiorari’

Similarly, in Anisminic  v. Foreign Compensation Commission (1969), the C/A held that a clause in a statute stating that a decision of the FCC ‘shall not be questioned in any court of law’ would not exclude the court’s jurisdiction to review where the decision-maker had made an error of law which affected his/ her power to decide.

In asserting the court’s right to retain the power of JR, L Wilberforce noted, ‘what would be the purpose of defining by statute the limit of a Tribunal’s powers, if by means of a clause inserted in the instrument of definition, those limits could safely be passed.

On the other hand, the Secretary of State might argue that the courts power to review has been effectively excluded by the wording of a statute. In R v. Registrar of Companies, ex Parte Central  Bank of India (1968), where the wording of a statute, ‘be conclusive evidence’, effectively precluded it from examining whether decision-maker had acted ultra-vires.

c) Time Clause:

The clause imposes time limits to challenge the decision by the court within 6 weeks from the day of confirmation. If the claimant comes after 6 weeks to challenge the order, should he be allowed to proceed his application. On this point two cases are decided prior to O’Reilly v. Mackman; both cases the claimants came after events, but today is not possible, to review the order after 6 weeks, in Part 54 in public law.

Smith v. East Ellae Rural District Council (1956), The legislation, the Acquisition of Land Act 1946, provided for a challenge in the High Court within a six weeks period, after which the clause ousted or excluded the jurisdiction of the courts. The action for the declaration was brought some five years after the order had been confirmed. H/L’s ruling which held that the clause ‘shall not be questioned in any legal proceedings whatsoever would defeat a claimant seeking a declaration that a compulsory purchase order had been obtained through fraud.

In R v. Secretary of State for the Environment, ex Parte Ostler (1977), the fact was that the road works scheme, which was the reason for the compulsory purchase, had begun. This was a case in which administrative certainty and convenience prevailed over injustice to an individual caused by possible admininstrative illegality. Mr Ostler complained to the PC for Administration who found that justice had not been seen to be done. The department made an gratia payment which covered the reasonable costs. By the time Ostler challenged it was two years when the decision made. The Highways Act 1959 imposed the requirement that a compulsory purchase order could only be challenged within 6 weeks after the publication of the order.

In following Smith v. East Ellow, L Denning was influenced by the policy issues. He pointed out that once the six week period for submitting a challenge had expired ‘the authority will take steps to acquire property, demolish it and so forth, the public interest demands that they should be safe in doing so’

Thus, the courts are more willing to accept time limits on judicial review than attempts to exclude JR totally.

4. Grounds for JR:

a) Illegality: a decision-maker cannot exercise any power (whether discretionary or mandatory) that has not been conferred on him by law. Anything i) in excess or ii) any abuse of powers conferred will be ultra-vires. Powers are often conferred by statute.

For example: University Act 2000 nature and scope of power. Clause: ‘where considers or in the opinion of the authority’. Then, this is a discretionary clause rather than mandatory, also a subjective clause (not objective) because it is in the opinion of the authority.

Secretary of State would argue that court’s cant intervene as it is subjective power and Parliament has given him such wide discretionary power and he was acting within it.

In Liversidge v. Anderson, the court could not interfere with the decision whether in fact S of S had reasonable grounds for the necessary belief as the case decided on the ground of national security and national emergency.

The claimant could argue that discretionary power must exercise in legal limits, reasonably and in good faith.

In Attorney General v. Fulham Corporation (1921), the corporation was empowered under statute to maintain wash houses but this power did not extend to the operation of a laundry.

In Bromley LBC v. GLC (1983), the H/L’s decided that the GLC was ultra vires in imposing higher rates on taxpayers in order to subsidise London Transport Fares. The relevant required that the services be run ‘economically’ but this did not extend to the subsiding of fares through higher rates.

London CC v. Attorney General (1902), a power to run trams did not include a power to run buses.


The nature of public law

“If the state is to care for its citizens from the cradle to the grave to protect their environment, to educate them at all stages, to provide them with employment, training, houses, medical services, pensions, and, in the last resort, food, clothing, and shelter, it needs a huge administrative apparatus. Relatively little can be done merely by passing Acts of Parliament and leaving it to the courts to enforce them. There are far too many problems of detail, and far too many matters which cannot be decided in advance. No one may erect a. building without planning permission, but no system of general rules can prescribe for every case. There must be discretionary power. If discretionary | power is to be tolerable, it must be kept under two kinds of control: political control through Parliament, and legal control through the courts. Equally there^ must be control over the boundaries of legal power, as to which there is normally no discretion. If a water authority may levy sewerage rates only upon properties connected to public sewers, there must be means of preventing it from rating unsewered properties unlawfully. The legal aspects of all such matters are the concern of administrative law.”

[Extract taken from Wade & Forsyth: Administrative Law]

Further, they offer a general definition of administrative law; in essence this is equally a definition of public law as a whole, in particular as far as the area of remedies is concerned. They say,

“A first approximation to a definition of administrative law is to say that it is the law relating to the control of governmental power. This, at any rate, is the heart of the subject, as viewed by most lawyers. The governmental power in question is not that of Parliament: Parliament as the legislature is sovereign and, subject to one exception, is beyond legal control. The powers of all other public authorities are subordinated to the law, just as much in the case of the Crown and ministers as in the case of local authorities and other public bodies. All such subordinate powers have two inherent characteristics. First, they are all subject to legal limitations; there is no such thing as absolute or unfettered administrative power. Secondly, and consequentially, it is always possible for any power to be abused. Even where Parliament enacts that a minister may make such order as he thinks fit for a certain purpose, the court may still invalidate the order if it infringes one of the many judge-made rules. And the court will invalidate it, a fortiori, if it infringes the limits which Parliament itself has ordained.

The primary purpose of administrative law, therefore, is to keep the powers of government within their legal bounds, so as to protect the citizen against their abuse. The powerful engines of authority must be prevented from running amok. ‘Abuse’, it should be made clear, carries no necessary innuendo of malice or bad faith. Government departments may misunderstand their legal position as easily as may other people, and the law which they have to administer is frequently complex and uncertain. Abuse is therefore inevitable, and it is all the more necessary that the law should provide means to check it. It is a common occurrence that a minister’s order is set aside by the court as unlawful, that a compulsory purchase order has to be quashed or that the decision of a planning authority is declared to be irregular and void. The courts are constantly occupied with cases of this kind which are nothing more than the practical application of the rule of law, meaning that the government must have legal warrant for what it does and that if it acts unlawfully the citizen has an effective legal remedy. On this elementary foundation has been erected an intricate and sophisticated structure of rules, which are basically judge-made rules of common law.

As well as power there is duty. It is also the concern of administrative law to see that public authorities can be compelled to perform their duties if they make default. The Inland Revenue may have a duty to repay tax, a licensing authority may have a duty to grant a licence, the Home Secretary may have a duty to admit an immigrant. The law provides compulsory remedies for such situations, thus dealing with the negative as well as the positive side of maladministration.

As a second approximation to a definition, administrative law may be said to be the body of general principles which govern the exercise of powers and duties by public authorities. This is only one part of the mass of law to which public authorities are subject. All the detailed law about their composition and structure, though clearly related to administrative law, lies beyond the scope of the subject as here presented. So it is not necessary to investigate how local councilors are elected or what are the qualifications for service on various tribunals. Nor is it necessary to enumerate all the powers which governmental authorities possess, which by itself would require a book. A great deal must be taken for granted in order to clear the field.

What has to be isolated is the law about the manner in which public authorities must exercise their functions, distinguishing function from structure and looking always for general principles. If it appears that some unwritten law requires that a man should be given a fair hearing before his house can be pulled down, before his trading licence can be revoked, and before he can be dismissed from a public office, a general principle of administrative law can be observed. If likewise a variety of ministers and local authorities are required by unwritten law to exercise their various statutory powers reasonably and only upon relevant grounds, there too is a general principle…… The essence of administrative law lies in judge-made doctrines which apply right across the board and which therefore set legal standards of conduct for public authorities generally.”

It should be clear from the above that public law and the way in which the courts approach are very different from private law. This is reflected in the remedies available and the procedure by which they may be obtained.

When is a public law remedy appropriate?

The initial problem in this area of law is in deciding whether indeed the question is one of public law. The most obvious example of a pure public law matter is where a power has been given to a Minister by statute e.g. under the Immigration Act 1971. Where a person is refused entry to the UK under this Act, this is a matter which is challengeable in public law. Ditto, questions of compulsory purchase of land and of the grant or refusal of planning permission.

However, there are many areas where it is not entirely clear whether the matter is one of public law. For example, what of a Health Authority’s decision to refuse an operation because of lack of funds (R v Cambridge Health Authority ex parte B [1995] 1 WLR 898)? Health authorities are the creation of statute – the National Health Service and Community Care Act 1990 – but is the decision as to medical treatment truly a matter of public law? (See also A (Children) 2000 (see post). Or, what of Camelot’s challenge to the decision not to award them the licence to run the National Lottery? (See R v National Lottery Commission ex parte Camelot Group Plc 2000 – post)

The courts have devised various tests in order to attempt to answer this crucial question. They will not, however, solve all problems.

The consequences of the public/private law divide; the exclusivity rule

The reason why it is so critical to decide at the outset whether or not the matter is a public law one is because this determines the remedy available. This is as a result of the decision in O’Reilly v Mackman 1982 (see post).

The procedure and remedies

From October 2, 2000, there is a change in the remedies, procedure and citation of judicial review cases. The old procedures were contained in RSC O53, which was preserved by the Civil Procedure Rules in schedule 1. The CPR have now undergone their 18th amendment and by SI 2092 (CPR (Amendment No4) Rules) 2000 (see post), Order 53 has been revoked. The old procedures apply where proceedings were started before October 2, 2000.

The basic principles and remedies remain the same, save possibly for the question of locus standi.

Supreme Court Act 1981, s31

CPR Part 54

Part 54.1

(1)       This Part contains rules about judicial review.

(2)       In this Part –

(a) a “claim for judicial Review” means a claim to review the lawfulness of –

i.     an enactment; or

ii a decision, action or failure to act in relation to the exercise of a public function. “

(b)   an order of mandamus is called a “mandatory order”;

(c)   an order of prohibition is called a “prohibitory order”;

(d)   an order of certiorari is called a “quashing order”;

(e) “the judicial review procedure” means the Part 8 procedure as modified by this Part;

(f) “interested party” means any person (other than the claimant and defendant) who is directly affected by the claim: and

(g) “court” means the High Court, unless otherwise stated.

When this Part must be used?

54.2    The judicial review procedure must be used in a claim for judicial review where the claimant is seeking –

a . a mandatory order

b . a prohibitory order

c.   a quashing order or

d. an injunction under s30 Supreme Court Act 1981 (restraining a person from

acting in any office in which he is not entitled to act)

When this Part may be used

54.3(l) the judicial review procedure may be used in a claim for judicial review where the claimant is seeking

a. a declaration or

B. an injunction

(2) A claim for judicial review may include a claim for damages but not damages alone.

Permission required

54.4 The court’s permission to proceed is required in a claim for judicial review.

Time limit for filing claim form

54.5(1) A claim form must be filed

a.  promptly and

b. in any event, not later than 3 months after the grounds to make the claim

first arose.

(2)       The time limit may not be extended by agreement between the parties.

(3) This rule does not apply where any other enactment specifies a shorter time limit for making the claim for judicial review.

54.18 The court may decide the claim for judicial review without a hearing where all the parties agree.

54.19(1) this rule applies where the court makes a quashing order in respect of the decision to which the claim relates.

(2)       The court may –

a.   remit the decision to the decision-maker; and

b.    direct it to reconsider the matter and reach a decision in accordance

with the judgment of the court.

(3) Where the court considers that there is no purpose to be served in remitting the decision to the decision-maker, it may, subject to any statutory provision, take the decision itself.

(Where a statutory power is given to a tribunal, person or other body, it may be the case that the court cannot take the decision itself)

Issues in judicial review

The first question which arises in any case is whether the public law procedure has to be followed. This is governed by several factors and was discussed at great length in

O’Reilly v Mackman 1982 3 All ER 1124

Since the House of Lords’ decision in this case this is an exclusive procedure for public law matters.

Lord Diplock expressed the principles thus:”…..it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of 053 for the protection of such authorities.”

The decision in O’Reilly v Mackman has received a great deal of criticism. The case resulted in very artificial distinctions being made in subsequent cases between the public law and private law part of an authority’s decision (e.g. Davy v Spelthorne 1984).   There is also an assumption in Lord Diplock’s judgment that it is easy to distinguish matters of public law. This is certainly not the case; for example, it was only just before the action in O’Reilly v (Mackman that it was decided that prison Boards of Visitors were subject to judicial review (R v Hull Prison Board of Visitors ex parte St Germain 1979). The difficulties of the Datafin decision make this even more clear.

Subsequent cases, in an attempt to mitigate the harshness of the O’Reilly principle, have created exceptions. A possibly dangerous exception is that created by Wandsworth LBC v Winder 1985. The principle here allowed was that a defendant in private law proceedings brought by a public authority could raise the vires of the authority’s decision by way of defence in those proceedings. Thus the temptation might be for an applicant to sit tight and wait for the authority to take action against him. This would put authorities in a very vulnerable position; the legality of their actions could be challenged long after the event. Mr. Winder’s defence was in the end unsuccessful but, on policy grounds, it is hard to see how it could have been otherwise. Had he succeeded in showing that the rent increases were ultra vires, presumably so could every other council tenant in the borough. Of much more general significance is the decision in Rye v Sheffield City Council 1997.

The public/private law divide is of less importance now since the introduction of CPR Part 54. For a discussion of the effect of the new rules see Clark v ULH 2001 below.

Types of bodies amenable to judicial review

R v Panel of Take-overs & Mergers ex parte Datafin PLC 1987 1 All


Case note on Datafin: 1987 Public Law 356

See also (in part): 1987 Public Law 543-569

R v Insurance Ombudsman ex parte Aegon Life Assurance Ltd 1994 (Times)

Re B 1995 2 All ER 129

Allocating Health Care Resources in an Imperfect World: Parkin 58 MLR 867

R v Human Fertilisation & Embryology Authority ex parte Blood 1997[Times]

Sporting bodies

R v Disciplinary Committee of the Jockey Club ex parte

Massingberd-Mundy 1993 2 All ER 207

R v Jockey Club ex parte Ram Racecourses Ltd 1993 2 All ER 225

R V Disciplinary Committee of the Jockey Club ex parte Aga Khan

1993 2 All ER 853

1993 Public Law 239 – case note on the Aga Khan case

R v Football Association Ltd ex parte Football League Ltd 1993 2

All ER 833

Is the decision making body reviewable?

The second question in any judicial review case, which is closely entwined with the one above, is whether the particular body being challenged is in fact susceptible to being judicially reviewed. Fenwick says

Not all decisions which are disliked by citizens or groups of citizens are reviewable.  Three main factors are used to decide whether aggrieved persons can challenge decisions.  First, is the body which had made the decision one which it is appropriate to subject to review?

Not all decision-making bodies will be subject to review. There are clear examples of those which are. Many applications for judicial review are concerned with bodies such as local authorities carrying out statutory duties, which are quite clearly subject to public law remedies. The fact that a body derives its authority from statute will generally be conclusive. Problems tend to arise in the case of bodies which are created in some other way such as self regulatory bodies set up by persons with a common interest. The classification of one such body was considered by the Court of Appeal in City Panel on Takeovers and Mergers, ex p Datafin plc 1987.

The Court of Appeal had to consider whether the Panel on Takeovers and Mergers, al self-regulating body without statutory, prerogative or common law powers, was subject to the supervisory jurisdiction of the high court as performing a public function. The Panel operated a Code regulating takeovers and mergers in the City.

However, it appears that a body can be one which affects the interests of the public and one against which no contractual remedy can be sought and yet remains not subject to review. This seems to be so in the case of sporting bodies and can be explained only on policy grounds.

R v Jockey Club, ex p Aga Khan [19931 2 All ER 853, where Lord Justice Bingham MR said…

I have little hesitation in accepting the applicant’s contention that the Jockey Club effectively regulates a significant national activity, exercising powers which affect the public and are exercised in the interest of the public. I am willing to accept that if the Jockey Club did not regulate this activity the Government would probably be driven to create a public body to do so.

But the Jockey Club is not in its origin, its history, its constitution or (least of all) its membership a public body. While the grant of a royal charter was no doubt a mark of official approval, this did not in any way alter its essential nature, functions or standing. Statute provides for its representation on the Horseracing Betting Levy Board, no doubt as a body with an obvious interest hi racing, but it has otherwise escaped mention in the statute book. It has not been woven into any system of governmental control of horse racing, perhaps because it has itself controlled horse racing so successfully that there has been no need for any such governmental system and such does not therefore exist. This has the result that while the Jockey Club’s powers may be described as, in many ways, public they are in no sense governmental.

Secondly, even if the body is in general terms subject to review, is the particular decision complained of reviewable? Even where it is clear that the decision-making body may be described as a public body, particular decisions made by it may not be susceptible to judicial review if they are not seen to have a clear ‘public1 element. This is increasingly becoming an issue in cases involving medical treatment (or, rather, lack of it) where judicial review is being used where a negligence action might not lie. Examples of this are Re B, ex parte Blood and ex parte Glass. “There has always been a similar problem in respect of universities. The issue now seems to have been resolved by the decision in

Clark v University of Lincolnshire and Humberside 2000 3 All ER 752

Between 1992 and 1995 the appellant, C, was a student at the respondent university, one of the new universities brought into being by the Education Reform Act 1988. As such, it was a body corporate known as a higher education corporation, and had no charter and no provision for a visitor. C became involved in a dispute with the university over the marking of a paper, submitted for her final examination, which had been given a mark of zero despite the abandonment of an initial finding of plagiarism. In 1998 C brought proceedings for breach of contract against the university, contending that its appeals board had misconstrued the meaning of plagiarism and that the paper had been given a mark beyond the limits of academic convention. Her claim was struck out by the judge who held that breaches of contract by universities were not justiciable by the courts. On appeal, C was allowed to amend her pleadings to claim breaches of contractual rules under the university’s student regulations. As well as seeking to uphold the judge’s views on justiciability, the university contended that C should have proceeded by way of judicial review and that accordingly it was an abuse of process to sue in contract, well beyond the three-month period for bringing a judicial review application.

Held – (1) Although the arrangement between a fee-paying student and a higher education corporation was a contract, disputes suitable for adjudication under the contract’s dispute resolution procedures might be unsuitable for adjudication in the courts. There were issues of academic or pastoral judgment which the university was equipped to consider in breadth and in depth, but on which any judgment of the courts would be inappropriate. That class of issues included such questions as the mark or class to be awarded to a student or whether an agrotat was justified. Although that distinction had no bearing on the availability of recourse to the courts in an institution which had a visitor, it constituted, where there was no such visitor, a sensible allocation of issues capable and not capable of being decided by the courts. Thus issues such as the award of a gold medal or a party’s academic competence would not be susceptible of adjudication as contractual issues in cases involving higher education corporations. In the instant case, C’s claim as originally pleaded travelled deep into the field of academic judgment. For that reason, rather than on the ground of nonjusticiability of the entire relationship between student and university, the judge had been right to strike out the claim. However, the allegations pleaded by amendment fell outside the class of non-justiciable issues. While capable, like most contractual issues, of domestic resolution, they were allegations of breaches of contractual rules on which, in the absence of a visitor, the courts were well able to adjudicate.

(2) Where a student had a claim in contract which could be brought more appropriately by judicial review proceedings, the court would not strike out the claim merely because of the procedure which had been adopted. Under the CPR, the court was able to prevent the unfair exploitation of the longer limitation periods for civil suits without resorting to a rigid exclusionary rule capable of doing equal and opposite injustice, just as the court could enlarge time on a judicial review application if justice so required, it could now intervene in a civil suit, notwithstanding the currency of the limitation period, if the entirety of the circumstances, including the availability of judicial review, demonstrated that the court’s processes were being misused, or if it were clear that no worthwhile relief could be expected because of the lapse of time or other circumstances. In the instant case, however, it would not be right to strike out or stay the action on that ground. Even though the case had been brought late, it would not be appropriate to stifle it on procedural grounds, given the way it had developed, the exploration of the legal situation and the fact that the parties had now agreed to attempt alternative dispute resolution. Accordingly, the appeal would be allowed to the extent of restoring the action which would then be stayed; O’Reilly v Mackman [1982] 3 All ER 1124 considered.

Locus Standi

Inland Revenue Commissioners v National Federation of Self-Employed &

Small Businesses

R v HM Inspectorate of Pollution ex parte Greenpeace Ltd 1994 4 All ER 329

R v Secretary of State for Foreign Affairs ex parte The World Development

Movement Ltd 1994

Pergau be Damned NLJ December 9 1994

The third question to be considered is whether the person who seeks to challenge the decision has the necessary standing (locus standi) to do so

Ord 53 r 3(7) provided that:

“The court shall not grant leave unless it considers that the   applicant has a

sufficient interest in the matter to which the application relates.”

CPR Part 54 refers to a ‘person who is directly affected’. This is in line with the test for standing under the Human Rights Act 1998.

The question of what amounts to such a sufficient interest under the old Order 53 was  dealt with in R v Inland Revenue Commissioners ex p National Federation of Self Employed and Small Businesses Ltd 1982 (The Mickey Mouse Case). Since then, the courts have taken an increasingly relaxed approach to the question of what amounts to sufficient locus, as can be seen by subsequent decisions, hi Covent Garden Community Association Ltd v GLC 1981 Woolf J held that the Association, formed to safeguard and represent the interests of Covent Garden residents had locus standi to seek certiorari to quash a decision of the council to grant planning consent in respect of premises in the area owned by the Council.

Ditto, in R v Poole BC ex parte Beebee & others 1991 it was held that the British Herpetological Society had locus standi to challenge the council’s decision to grant itself planning permission to develop part of a heath.

More recent cases have taken an even more generous approach to the question of standing. See exp Greenpeace Ltd (No 2) (1994)

A similar approach was adopted in Secretary of State for the Environment, ex p Friends of the Earth (1994); the group and its director were granted leave to challenge a decision related to the quality of drinking water in certain specified areas. The fact that the director lived in one of those areas – London – gave him a personal local interest in the matter.

However, in other cases involving decisions of national importance the courts have been prepared to move beyond this stance and allow challenges by persons whose only concern with the decision is intellectual or ideological. The rationale appears to be that in these cases, there is no one who will be personally affected and who therefore could claim a greater interest in the matter than the applicant. The result would otherwise be that if the applicant were denied leave, no one else would be able to come forward and the decision would go unchallenged, even if it were unlawful. This was the position in Secretary of State for Foreign Affairs, ex p the World Development Movement [19951 1 All ER 611

Rose LJ: Internationally, [the World Development Movement] has official consultative status with UNESCO and has promoted international conferences. It has brought together development groups within the OECD. It tends to attract citizens of the United Kingdom concerned about the role of the United Kingdom Government in relation to the development of countries abroad and the relief of poverty abroad.

Its supporters have a direct interest in ensuring that funds furnished by the United Kingdom are used for genuine purposes, and it seeks to ensure that disbursement of aid budgets is made where that aid is most needed. It seeks, by this application, to represent the interests of people in developing countries who might benefit from funds which otherwise might go elsewhere.

If the applicants have no standing, it is said that no person or body would ensure that powers under the 1980 Act are exercised lawfully.

It cannot be said that the applicants are ‘busybodies’, ‘cranks’ or ‘mischief -makers’. They are a non-partisan pressure group concerned with the misuse of aid money. If there is a public law error, it is difficult to see how else it could be challenged and corrected except by such an applicant.

If they cannot seek relief, who can? Neither a Government nor citizen of a foreign country denied aid is, in practical terms, likely to be able to bring such a challenge.

Furthermore, the merits of the challenge are an important, if not dominant, factor when considering standing. In Professor Sir William Wade’s words in Administrative Law

… the real question is whether the applicant can show some substantial default or abuse, and not whether his personal rights or interests are involved.

Leaving merits aside for a moment, there seem to me to be a number of factors of significance in the present case: the importance of vindicating the Rule of Law; the importance of the issue raised, as in ex p Child Poverty Action Group; the likely absence of any other responsible challenger, as in ex p Child Poverty Action Group and ex p Greenpeace Ltd; the nature of the breach of duty against which relief is sought (see IRC v National Federation of Self-Employed and Small Businesses Ltd); and the prominent role of these applicants in giving advice, guidance and assistance with regard to aid (see exp Child Poverty Action Group [1989] 1 All ER 1047. All, in my judgment, point, in the present case, to the conclusion that the applicants here do have a sufficient interest in the matter to which the application relates within s31 (3) of the 1981 Act and Ord 53, r 3(7).

The case is clearly not a charter for the tiresomely officious: the applicants were a body whose work was of international repute and whose concern for the issue in hand was genuine. Further, the fact that there was no one more closely affected by the decision in question who could have brought the case was clearly instrumental in the court’s finding.

Locus under the Human Rights Act

It is, therefore, surprising that the Human Rights Act 1998 provides for a different test of locus. Actions under this Act can be brought only by victims, a much narrower concept. It remains to be seen whether judicial creativity will expand this. It is clear from Lord Irvine’s Paul Sieghart Memorial lecture in April 1999 that the Lord Chancellor would restrict the role of the judges. He said, “The challenge for the courts is to work out where the correct balance lies between these competing imperatives of activism and restraint. A rich, and complex alchemy of factors impacts upon this judicial balancing exercise. But a crucial factor is the prevailing conception in society of the role and function of the courts within the broader legal and constitutional order.

The more keenly it is felt that the judges are guardians of fundamental rights, who serve a central role is ensuring accountable government, the more likely they are to take an interventionist approach, broadly reading the rights themselves while narrowly construing any provisions which appear to inhibit their application. In contrast, a judiciary which less readily perceives that it is part of constitutional machinery which secures individuals’ rights against legislative encroachment and executive abuse is likely to take a very different approach to the interpretation of a human rights instrument.

I need hardly point out to so distinguished an audience that there can be no clearer illustration of this than the historic judgment of the United States Supreme Court in Marbury -v- Madison. The vacuum created by the US Constitution’s silence on the courts’ powers over unconstitutional legislation had to be filled by judicial decision. The Supreme Court’s conclusion, that the judicial branch could set aside such legislation, was inspired by a particular conception of the purpose and role of the courts and the nature of their relationship with the other institutions of government.

However, to acknowledge the particular importance and sensitivity of the judicial decision-making process in the field of human rights interpretation does not mean that the judges have carte blanche to do as they please. This follows for a number of reasons.

First, the text itself provides, to some extent, a limit on the judges’ freedom. Although the expansive language of human rights instruments means that they cannot constitute precise directions which judges simply enforce, they do at least point towards the acceptable parameters within which constitutional adjudication may occur. The text thus reminds that judge that, in the words of Cardozo, “even when he is free, he is not wholly free … He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness”.

Secondly, the conclusions which previous courts have reached also constitute through the doctrine of precedent – a significant limit on the scope of the judges’ interpretative freedom.”

The principles of judicial review

It is crucial to remember that the nature of the challenge, and the role of the courts is very different in public law from that in a private law action, in public law, one party is always the government in some form or other. This may seem strange when the action is, for example, against a health authority or a university. It must be borne in mind that these bodies are amenable to judicial review only because of the public law element of their powers. They operate in the public domain – as does the government.

One consequence of the governmental nature of the powers is that the courts cannot investigate the merits of a decision taken. That is a question for the decision-maker. On judicial review, the courts can investigate only the power (or jurisdiction) to take the decision. Was the body empowered to take this decision? If it was, then review cannot succeed on the basis that, perhaps, the court would not have so decided; and certainly not on the basis that the applicant does not like the decision.

Because the courts are reviewing a decision, rather than hearing an appeal, the court cannot change the decision taken. Rather, it can find that the decision was within the powers or outside the powers. If the former, then there is no remedy; if the latter, then the court can quash the decision by way of certiorari. This, of course, does not necessarily give the applicant what he wants.

The nature of the ultra vires doctrine. Error on the face of the record. The concept of jurisdictional and non-jurisdictional errors.

Anisminic v Foreign Compensation Commission 1969 2 AC 147

Anisminic Ltd had had certain of its property sequestered by the Egyptian Government, and had later sold it to TEDO, an Egyptian Organisation, for considerably less than its actual value. Anisminic applied for compensation to the Foreign Compensation Commission, which had the duty, under Art 4 of the Foreign Compensation etc Order 1962, of distributing compensation to business such as Anisminic which had suffered loss by virtue of the confiscation of their property. Article 4 stated that the Commission was to treat a claim as good if they were satisfied of the following:

(a) the applicant was the person referred to in the relevant part of Annex E of the ‘Order as ‘the owner of the property or … the successor in title of such a person’; and

(b) the person referred to in that part of Annex E ‘and any person who became successor in title of such person … were British Nationals’.

The Commission’s initial finding was that Anisminic Ltd was not entitled to compensation because TEDO (its successor in title) was not a British national.

Lord Reid: It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity….. But there are many cases. where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly.

On the substantive question, Lord Reid said

It appears from the commission’s reasons that they construed this provision as requiring them to inquire, when the applicant is himself the original owner, whether he had a successor in title.

They made that inquiry in this case and held that TEDO was the applicant’s successor in title. As TEDO was not a British national they rejected the appellants’ claim. But if, on a true construction of the Order, a claimant who is a original owner does not have to prove anything about successors in title, then the commission made an inquiry which the Order did not empower them to make and they based their decision on a matter which they had no right to take into account.

If one uses the word ‘jurisdiction1 in its wider sense, they went beyond their jurisdiction in considering this matter…. It cannot be for the commission to determine the limits of its powers.

So the question is whether on a true construction of the Order the applicants did or did not have to prove anything with regard to successors in title. If the commission were entitled to enter on the inquiry whether the applicants had a successor in title, then their decision as to whether TEDO was their successor in title would I think be unassailable whether it was right or wrong: it would be a decision on a matter remitted to them for their decision. The question I have to consider is not whether they made a wrong decision but whether they inquired into and decided a matter which they had no right to consider.

I have great difficulty in seeing how in the circumstances there could be a successor in title of a person who is still in existence….There can only be a successor in title where the title of its original possessor has passed to another person, his successor, so that the original possessor of the title can no longer make a claim, but his successor can make the claim which the original possessor of the title could have made if his title had not passed to his successor. The ‘successor’ of a deceased person can do that. But how could any ‘successor’ do that while the original owner is still in existence? One can imagine the improbable case of the original owner agreeing with someone that, for a consideration immediately paid to him, he would pay over to the other party any compensation which he might ultimately receive. But that would not create a ‘successor in title’ in any true sense. And I can think of no other way in which the original owner could transfer inter vivos his expectation of receiving compensation. If there were anything in the rest of the Order to indicate that such a case was intended to be covered, we might have to attribute to the phrase ‘successor in title’ some unusual and inaccurate meaning which would cover it. But there is nothing of that kind. In themselves the words ‘successor in title’ are, in my opinion, inappropriate in the circumstances of this Order to denote any person while the original owner is still in existence, and I think it most improbable that they were ever intended to denote any such person. There is no necessity to stretch them to cover any such person. I would therefore hold that the words ‘and any person who became successor in title to such person’ in art 4 (l) (b) (ii) have no application to a case where the applicant is the original owner. It follows that the commission rejected the appellants’ claim on a ground which they had no right to take into account and that their decision was a nullity. I would allow this appeal.


Lord Reid’s speech in Anisminic explains the nature of the concept of jurisdiction. In simple terms, where a body acts outside its jurisdiction, it acts beyond its powers. However, it may act beyond its powers in both obvious and perhaps not so obvious ways. If a body is given power to do X and it does Y, then clearly it is acting ultra vires. Lord Reid takes this further by saying that even if it does X, it may still act ultra vires because it, for example, has acted unreasonably; or, it has failed to take account of something it should have considered etc In other words, it is not the decision itself which is necessarily critical – but, rather, the way in which the decision was arrived at.

Lord Diplock, in the GCHQ case, referred to the grounds for review in different terms but the meaning is the same.

Exclusion of Review

In many instances, Parliament, in the enabling Act (i.e. the statute giving the power) will attempt to ensure that the courts cannot question the exercise of that power. This is particularly true in sensitive areas and is yet another reflection of the tension between government and the courts. There are various types of these ‘ouster clauses’ as they are known. Most have met with little success hi defeating the courts’ power to review.

Finality or no certiorari clauses

[1] Review for ultra vires or jurisdictional error

Statute dated prior to 1958

Tribunals and Enquiries Act 1992

S I2. – (I) As respects England and Wales-

(a)       any provision in an Act passed before 1st August 1958 that any order or determination shall not be called into question in any court, or

(b)      any provision in such an Act which by similar words excludes any of the powers of the High Court, shall not have effect so as to prevent the removal of the proceedings into the High / Court by order of ce