Procedural Hurdles of Judicial Review

Question	Answer
What is judicial review?	Judicial review was defined under the Civil Procedural Rules Pre-action Protocol for Judicial Review as 'judicial review allows anyone with sufficient interest in a decision or action taken by a public authority to ask a judge to review the lawfulness of a decision, action of failure to act in relation to the exercise of a public function'. Therefore, it is clearly different than an appeal.
What is the aim of judicial review?	Judicial review ensures that the judiciary is able to keep a balance and check on the powers exercised by the executive. Lord Diplock within the case of GCHQ stated 'judicial review is the means by which judicial control of executive action is exercised'.
Recent changes to judicial review.	Recently, the Criminal Justice and Courts Act 2015 has established that judicial review will now be carried out by a judicial review panel. It has also established that those who contribute financially to applications of judicial review may be partially liable if the person applying for the review is unsuccessful.
Why do we have the procedural hurdles?	In order to stop prevent unmeritorious cases from reaching the court and to save court time and expenses, the procedural hurdles were established to reduce the amount of potential cases to enter the court.
What are the key procedural hurdles?	There are 5 key procedural hurdles that the application for judicial review must overcome before it is successful.
Is the matter one of public law?	It must first be established that the matter at hand is one of public law - this being law that is interested in the relationship between individuals and the State. Judicial review does not involve itself with issues of private law.
O'REILLY V MACKMAN	Judicial review will not review private law issues. This is known as the 'exclusivity principle'.
ROY V KENSINGTON, CHELSEA AND WESTMINSTER FPC	Where a case involves matters of both public and private law, the courts will take a flexible approach if they believe that justice will be served better in this manner.
WANDSWORTH LONDON BOROUGH COUNCIL V WINDER	A defendant may still raise public law issues as a defence in civil proceedings.
Is the authority public?	Judicial review will only lend itself to situations in which a PUBLIC authority or body has acted unlawfully.
EX PARTE DATAFIN	Private bodies may be subject to judicial review if they exercise public law functions or their actions have public law consequences.
EX PARTE AGA KHAN	Example of a private body. Therefore, it could not be subject to judicial review.
EX PARTE FOOTBALL LEAGUE	Another example of private authority.
EX PARTE WACHMANN	Another example of a private authority.
Is the matter time barred?	Some matters can be time barred. This means that there is a specific time period in which an application for judicial review must be applied for. After this time period, the public authority will be excluded from judicial review.
Current law on time barring.	As established in s.31(7) of the Senior Courts Act 1981, any application for judicial review for a public law has 3 month period in which an application for judicial review may be made. This time period starts from the day the grounds for the judicial review arose. The two parties are unable to extend the time period for which an application can be made through mutual agreement.
Time barring and Planning Committees.	In situations in which a Planning Committee is involved, the time period of an application for judicial review can sometimes be as short as 6 weeks.
Issues with time barring.	The time period allowed for private law issues, such as issues of contract law, can be up to a period of 6 years. Therefore, many have criticised that the time barriers established under judicial review are incredibly unfair and unjust due to their short nature.
SMITH V EAST ELLOE RURAL DISTRICT COUNCIL	Some statutes may further limit the time period in which an application for judicial review can be made.
Locus standi.	In order for an application of judicial review to be successful, the High Court must be satisfied that the applicant has sufficient interest in the matter and an arguable case OR they have some right, interest or legitimate interest that has been damaged by the abuse of power by the public authority.
Who has locus standi?	Therefore, an application for judicial review can be brought by an individual who has been directly effected by the abuse of power by the authority or by a non-governmental organisation representing and acting on behalf of such individuals.
EX PARTE NATIONAL FEDERATION FOR SELF EMPLOYMENT AND SMALL BUISSNESSES	Lord Diplock stated that the purpose of ensuring that parties have locus standi is to keep out 'busybodies, cranks and mischief makers' from the courts.
EX PARTE REES-MOGG	It was established that Lord Rees Mogg had sufficient interest due to his deep concern for constitutional issues.
EX PARTE GREENPEACE	The NGO Greenpeace was established as having sufficient interest as it was clear that they were nationally and internationally recognised and had special knowledge and expertise on the issue at hand.
EX PARTE WDM	This NGO was also established as having sufficient interest due to their clear understanding of the issue at hand and their prominent role.
Is the public authority protected by an ouster clause?	Ouster clauses are clauses that seek to exclude judicial review. There are two forms of ouster clauses - total ouster clauses that seek to exempt judicial review completely and partial ouster clauses, that seek to impose a time limit on which an application for judicial review can be made.
Dicey and ouster clauses.	DICEY believed in a 'red light approach' - he stated that there should be a deep-rooted suspicion of governmental power and a desire to minimize the encroachment of the statute on the rights of individual.
Bentham and ouster clauses.	BENTHAM believed in the 'green light approach' - he believed that ouster clauses are useful devices to keep a conservatively-induced judiciary at bay. He believed that ouster clauses ensure that parliament supremacy was respected.
ANISMINIC LIMITED V FOREIGN COMPENSATION COMMISSION	In order for a total ouster clause to completely exempt the public authority from judicial review, it must clearly and directly state so.
SMTIH V EAST ELLOE RURAL DISTRICT COUNCIL	However, in situations in which it is questioned whether the public authority acted in bad faith, an total or partial ouster clause will not be able to exempt the public authority from judicial review.

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	Created by Chantal Briancon over 8 years ago