The Law Commission

PART V FILTERING OUT HOPELESS APPLICATIONS: LEAVE OR PRELIMINARY CONSIDERATION

5.1      The purpose of the requirement in Order 53 that no application for judicial review shall be made unless the leave of the Court has been obtained is to filter out hopeless applications. Ill-founded applications delay finality in decision making: they exploit and exacerbate delays within the judicial system and are detrimental to the progress of well founded legal challenges. While this is generally true of litigation, in the case of applications challenging regulations and decisions the public policy factors set out in Part II have been seen as justifying the filter provided by the present leave requirement.
5.2      In its 1971 working paper the Commission stated that the likelihood of frivolous actions to challenge an administrative act or order might be increased by the fact that anyone adversely affected will have standing to challenge it and it was therefore "all the more important to have some procedure for striking down applications without delay and cost for the particular public authorities and tribunals concerned".^[1] The leave requirement was originally introduced following the Hanworth Committee's Third Report on the Business of the Courts^[2] and support for the need to retain it has been expressly voiced by the higher judiciary, particularly Lord Woolf.^[3]
5.3      The Commission's 1976 report recommended the retention of the requirement of leave.^[4] Our recent consultation paper tended to the same view but suggested a number of changes to improve the procedures by which the leave requirement presently operates: (i) the introduction of stated criteria for the granting of leave; (ii) the introduction of a power to dispense with leave where both parties agree that there is a serious issue to be tried; (iii) the introduction of provision for potential respondents to make written representations in cases where the judge is in doubt whether leave should be granted or not.^[5] Although some of those who responded to our consultation paper, particularly academics, favoured the abolition of the requirement of leave, the majority of consultees supported the retention of a filter for eliminating the unarguable case.^[6]
5.4      We have also considered the procedures for applying for judicial review in Northern Ireland and in Scotland. In Northern Ireland the procedure is similar to that in England and Wales, except that where leave to apply has not been sought within 3 months, the court may not grant leave or relief unless it is satisfied that such a move would not cause hardship or unfairly prejudice the rights of any person.^[7] I.n~ a lmost all cases, however, unlike this jurisdiction, leave is granted and the application is allowed to proceed.^[8] The position is complicated by the fact that in Northern Ireland many applications are made by prisoners, and are politically sensitive.^[9] Delays before cases are heard are generally much shorter in Northern Ireland, and judicial resources are relatively more abundant, which makes comparisons with the position here difficult. Carswell LJ told us that he considered that leave should be retained in Northern Ireland to prevent entirely vexatious actions from proceeding.
5.5      In Scotland there is no requirement of leave, or special time limit, and the rules emphasise flexibility as regards both procedure and relief, and speed.^[10] The petition is brought before the judge ex parte for a 'first order', which is in effect an order for directions on how to proceed. The matter can then be disposed of at the first hearing, or there can be further hearings until the judge is satisfied that he has all the information he wants before him. The small number of applications (114 in 1992, and 158 in 1993) has meant that leave has not been perceived to be an issue in Scotland.
5.6      We have indicated^[11] that we consider it essential to filter out hopeless applications for judicial review by a requirement such as leave. We note that a filtering requirement can be a tool for the efficient management of the caseload and that there have been calls for greater judicial management of cases at an early stage in other areas of civil procedure.^[12] It is possible that future developments in civil procedure will lessen the contrast between the initial stages of an application for judicial review and the initial stages of other proceedings. Be that as it may, we do, however, believe that a change of nomenclature is desirable and that the filtering stage of an application for judicial review should be known as the "preliminary consideration" rather than the leave stage.
5.7      Although some might see this as purely a cosmetic change, we believe it to be important to remove the perception that a citizen seeking a prerogative remedy is at a substantial disadvantage as compared with one asserting a private law right whether as the result of a tort, or under a contract or a statute. In fact, as is shown by the way the courts have broadened the scope of judicial review by recognising new grounds of review and new categories of decision to be reviewable, the contrary could be argued. It has also been said that a filtering requirement may be beneficial to applicants since with relatively little expenditure of time and money an applicant hears from the court itself either that the case has no prospect of success or that it has some prospect.^[13] The study published by the Public Law Project^[14] supports this argument and indicates that in some areas, for instance homelessness where it appears that many decisions are reconsidered by local authorities after leave is granted, leave in practice serves as a form of summary process.
5.8      We recommend that the filtering stage of an application for judicial review should be known as the "preliminary consideration" rather than the leave stage. Subject to the recommendations we make below, the filtering stage should remain as it is, that is, an ex parte written procedure with a right to renew an application where the application judge has decided that the application may not proceed to a substantive hearing. The new terminology is reflected in the heading of Draft Order 53 rule 3.

Written applications

5.9      In relation to those cases described as being 'intermediate',^[15] the consultation paper invited views as to whether the ex parte procedure should be amended to give respondents an opportunity to put in written representations.^[16] While this proposal was supported in principle by a number of consultees there were also a number of alternative suggestions put forward which, it was thought, would clarify how to proceed in "in-between" cases. We hope that our proposals in Part IV above will create new procedures which will address these concerns to some extent while taking into account the desirability of avoiding excessive "front-end" costs in what is intended to be simply a filtering mechanism designed to identify and eliminate cases which are not properly arguable.
5.10      The existing rule states that applications for leave should be made by filing Form 86A in the Crown Office,^[17] and that the judge may determine the application without a hearing, unless one is requested in the notice of application. In some cases, particularly where an injunction is sought, it may be necessary to make the application very quickly.^[18] A number of consultees, including the nominated judges, felt that there were too many cases where applications for leave were determined for the first time at oral hearings, often with both the applicant and the potential respondent represented by counsel. This adds to general time delays, as well as to the expense involved.^[19]It was said that in some of these cases an oral hearing is desired in order to get publicity. We consider that it should no longer be possible, as it is at present, for an applicant making an initial application (as opposed to a renewed application) to require a hearing.
5.11      We recommend that all applications for preliminary consideration (i.e. in the present terminology applications for leave to apply for judicial review) should, in the first instance, be determined entirely on paper, unless the application falls within a recognised category for which an oral hearing might be necessary (Draft Order 53 rule 3 (6)). We further recommend that the following categories should be so recognised (i) where the application includes a claim for immediate interim relief; (ii) where on the basis of the written material it appears to the Crown Office or the judge that a hearing is desirable in the interests of justice^[20](Draft Order 53 rule 3(7)).
5.12      Renewal of an application for leave to seek judicial review is at present available as of right and in such cases there is an oral hearing.^[21] Where a high court judge has refused to allow an application to proceed to a substantive hearing the lawyers responsible for it will be under a professional duty to consider carefully whether it is reasonable to renew it in the light of the judge's reasons. In the light of this we do not propose any changes in respect of the renewal of applications (Draft Order 53 rule 4). Where, therefore, when at the first preliminary consideration of an application for judicial review, the judge determines that it may not proceed to a substantive hearing, the application may be renewed. As at present, if the preliminary consideration has been on the papers the renewal is to a single judge. In those exceptional cases where there is a hearing for the first preliminary consideration, as at present, the renewed application would be made to the Court of Appeal.

Criteria for permitting an application to proceed to a substantive hearing

5.13      A large number of consultees, although supporting a filtering requirement, criticised the lack of any clear criteria in the Rules for leave being either granted or refused. Concern was expressed about wide disparities in the rates of granting leave as between different subject matters of applications and as between different judges. In the consultation paper we referred to a survey which found that, although the majority of cases were determined on a "quick look" approach, a sizable minority were subjected to what was termed a "good look" with more consideration of the merits of the application.^[22] Since then the Public Law Project has published the preliminary results of a statistical analysis of applications for judicial review which confirmed the disparities.^[23]
5.14      In their response the nominated judges did not favour having their discretion to refuse leave fettered by legislative prescription. However, the majority of consultees who commented considered that the threshold should be explicitly stated in the Rules. For example, the Administrative Law Bar Association argued that an explicit formulation would remove any opportunity for suspicion that the stringency of the requirement for leave reflected the current state of the Crown Office List. It would also enable those considering making an application for judicial review to know in advance the threshold which any application (as a matter of principle) was required to pass. We do not propose departing from the existing grounds for the refusal to grant leave to apply for judicial review but we do consider that these criteria be explicated clearly in the Rules. Accordingly, we recommend that the Rules should direct the court in exercising its discretion to consider the criteria specified below (Draft Order 53 rule 3(5)).

(i) An arguable case

5.15      At present leave will be refused if it is clear that the applicant does not have an arguable case.^[24] We recommend that it should be stated in the Rules that unless the application discloses a serious issue which ought to be determined it should not be allowed to proceed to a substantive hearing. (Draft Order 53 rule 3(5)(a)). This reformulation recognises, inter alia, that one of the main purposes of having a filter is to protect public bodies from unmeritorious applications, which might involve unwarranted delay in implementing decisions. We also recommend that provision is made so as to empower a judge at the preliminary stage to allow the application to proceed on some grounds, while refusing it on others.^[25] This would be a discretionary power and we do not anticipate that a judge would be required to consider the arguability of everything in the form 86A every time permission for a case to proceed is granted. For example, the grounds may be closely interrelated. An applicant would not be prevented from seeking either to renew or amend his application at a later date^[26] (Draft Order 53, rule 13).

(ii) Standing^[27]

5.16      In addition to establishing an arguable case on the merits, the applicant is also required to show sufficient interest in the matter to which the application relates. The fluid nature of the requirement of sufficiency means that it is uncertain what precisely is required. Very broadly speaking, there are three possible approaches: to accord standing only where rights are affected; to accord it where, although rights are not affected, the applicant has in fact been adversely affected; and to accord it to all but the officious intermeddler, the "citizen action" approach.
5.17      The predominant trend in the case law since the reform of Order 53 in 1977 reflects a liberal approach which had long been a feature of relief by way of certiorari and prohibition, going beyond the protection of rights and "injury in fact" but with uneasiness about the treatment of decisions that affect the public in general, or a wide section of it. There are, however, exceptions such as the Rose Theatre Trust case,^[28] which called into question the ability of pressure groups to institute judicial review proceedings.
5.18      Very few consultees questioned the need to establish standing^[29] although a number of those who responded considered that standing should be considered only at the initial or preliminary stage. Others recommended that the judge considering the application should be able expressly to reserve to the substantive hearing any decision on the issue of sufficient interest. Yet others claimed that the reality of an apparent interest cannot be determined until the substantive hearing. It was the view of the House of Lords in the IRC v National Federation of Self-Employed case,^[30] that 'sufficient interest' at the leave stage was merely a threshold requirement to exclude clearly unmeritorious cases, and that locus standi could be investigated in detail at the subsequent substantive hearing.^[31] The question of standing was regarded as inseparable from the substantive grounds and seriousness of the application and we make no recommendations for change.^[32]
5.19      The liberal trend referred to in paragraph 5.17 above continues^[33] and a number of consultees recommended no change to the existing broad approach. However, perhaps because of exceptions such as the Rose Theatre Trust case,^[34] a substantial number of consultees did favour special provision in cases where the applicant is a representative or pressure group or in cases where no individual has standing but it can be demonstrated that there is a sufficient public interest in the matter being litigated.^[35]
5.20      We propose that a two track system of standing be adopted.^[36] The first track would cover those who have been personally adversely affected by the decision which is the subject of the complaint.^[37] The other track would be a discretionary track and cover, inter alia, public interest challenges. We recommend that except in those cases where a statutory power or duty concerns, or is owed to, an individual or to a narrow range of individuals to which the applicant does not belong,^[38] any person who has been adversely affected by a decision should normally be given standing as a matter of course.
5.21      The consultation paper proposed^[39] that the provisions as to standing in the Supreme Court Act and Order 53 should expressly refer to public interest challenges, in the light of the decision in the Rose Theatre Trust case,^[40] which was seen to be going against the present widespread trend to allow public interest challenges under the present general head of "sufficient interest". The issue of public interest challenges was raised in two contexts: (i) challenges by individuals and groups in respect of measures which affect the public generally, ^[41] and (ii) challenges by groups rather than specific individuals where a decision affects a particular individual.^[42]
5.22      We have considered whether, as those who have suggested this sort of approach have advocated, ^[43] the Rules should refer to the factors to be taken account of in public interest challenges. These include:

- the importance of the legal point,

- the chances of the issue being raised in any other proceedings,

- the allocation of scarce judicial resources, and

- the concern that in the determination of issues the courts should have the benefit of the conflicting points of view of those most directly affected by them.

We accept that all these may be relevant in relation to both public interest and group challenges. However, although we carefully considered whether to enunciate criteria such as these in the test of standing in public interest and group challenges, we consider a simple test allowing the application judge a broad discretion is preferable.^[44] Accordingly, we recommend that an application should not be allowed to proceed to a substantive hearing unless the court is satisfied that the applicant has been or would be adversely affected, or the High Court considers that it is in the public interest for an applicant to make the application^[45]( Draft Bill, clause 1, new section 3 1B( 1)).

(iii) Time limits

5.23      At present an application for leave to apply for judicial review may be refused on the ground that there has been (1) undue delay, where granting relief would be likely to cause "substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration" or (2) lack of promptness.^[46] There was widespread support for the proposition that a specific time limit was necessary to give effect to the principle of certainty.^[47] It was also agreed that the co-existence of section 31(6) of the Supreme Court Act 1981 with the provisions of Order 53 rule 4(5) is pointlessly confusing and should be remedied.
5.24      After reviewing the approach adopted in EC law and a number of other systems containing time limits for challenging administrative acts or rules,^[48] our consultation paper invited views as to whether the present three month time limit was too short. We suggested that the correct balance lay somewhere between three and six months. The majority of consultees, however, did not favour lengthening the time limit although there was support for abandoning the promptness requirement. We believe that the principle of certainty is particularly important in administrative law decisions, and that a short time limit for initiating the application should continue to be included in the Rules.
5.25      The public policy considerations set out in Part I1 all tend to justify the provision of special time limits for initiating legal challenges to administrative acts. Different circumstances and the different remedies that are sought do, however, mean that it is important that the court should continue to have discretion at the preliminary consideration stage and be able to exercise its jurisdiction flexibly. We consider that time limits should be dealt with in the Rules of Court rather than in primary legislation and that section 31(6) of the Supreme Court Act 1981 should accordingly be replaced by a provision empowering time limits to be specified by rule.
5.26      We recommend:-

(a) that the time limit in applications for judicial review should be prescribed in rules of court (Draft Bill, clause 1, new section 31 (B) (2) and should be three months from the date when grounds for the application first arose (Draft Order 53, rule 2(1));

(b) that the court may refuse an application made within the three month time limit if the application is not sufficiently prompt and, that if the relief sought was granted, on an application made at this stage, it would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or be detrimental to good administration (Draft Order 53, rule 2(2)).

(c) that an application may be made after the end of the period of three Months^[49] if the court is satisfied that there is a good reason^[50] for the application not to have been made within that period, and that if the relief sought was granted, on an application made at this stage, it would not be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or be detrimental to good administration (Draft Order 53, rule 2(3)).

5.27      Lack of promptness might be good reason for refusing to allow the case to proceed even within 3 months,. especially if the applicant was delaying for mischievous reasons, and this remains explicit in the Draft Order 53 rule 2(2)(b) annexed to this report. The court would have discretion to decide in each case whether there was good reason or not. This presumption would give the courts the necessary flexibility to deal with the wide variety of circumstances which they could face. In R v The Independent Television Commission, exp TVNI Ltd^[51] the applicants were refused leave on the ground that their application had not been made promptly, even though it was made within three months. This was a case involving legally sophisticated applicants delaying longer than they should have done, or needed to do.
5.28      "Good reason" could be used to incorporate extensions of time where an applicant has been pursuing an alternative remedy.^[52] Also, the need to show good reason for the delay might, depending on the circumstances of the case, mean that the applicant had to show that the application would not substantially cause hardship or prejudice rights or good administration. This would only be necessary in extreme cases; normally such issues should be left to the substantive hearing.^[53] Alternatively, if a respondent was invited to give further information, he might be able to show that no remedy would be awarded at the substantive hearing, thereby preventing the applicant from making out his or her claim of good reason for being allowed to proceed even though out of time, due to the substantial detriment which this would cause. This would be unlikely to be easily demonstrable on paper in a summary process, and it is anticipated that refusals on this ground alone may be rare. However, good reason would not be confined to this; it would be determined in the circumstances of each case, and we have recommended that the relevant rule continue to refer specifically to promptness.
5.29      The next issue about time limits, promptness and delay arises from the nature of the filter stage of the application, at present leave and, on our recommendation, preliminary consideration. There is concern that applications for leave have become a lesser version of the substantive hearing, rather than an ex parte filter. This is why we have proposed^[54] that the initial stage of applications should generally be made and considered on paper, preventing the case from in effect being treated as inter partes and being argued in full at the leave stage. This will necessarily limit the arguments which can be made either by the applicant or by the respondent,^[55] especially where the respondent is required to do no more than complete a "request for further information" form.^[56]
5.30      Although compliance with time limits is clearly important in the preliminary consideration of an application,^[57] at this stage we think it neither appropriate nor practical for there to be lengthy argument at the filtering stage over, for instance, whether the granting of relief would substantially prejudice third party rights or be detrimental to good administration.^[58] This issue is one that can only rarely be dealt with satisfactorily in the absence of the respondent. It is collateral to the issue whether the decision should be reviewed and it should normally influence the exercise of the judge's discretion when deciding whether or not to grant a remedy rather than whether or not to allow the application to proceed to a substantive hearing. We are of the view that this approach fits with the principle that a leave stage or a preliminary consideration filters applicants, and that as such it must be primarily concerned with their position.

(iv) Exhaustion of alternative remedies

5.31      In the consultation paper we asked whether the issue of alternative remedies should be raised at the leave stage^[59] and whether it should be made clear that, where an alternative remedy is being pursued, the three month time limit should not run.^[60] The majority of those who responded favoured the court considering questions of alternative remedies at the initial leave stage. It was argued that this would prevent the loss of time and costs which would occur if consideration of this question only takes place at the substantive hearing.
5.32      We have drawn a distinction between legal alternative remedies (ie remedies available before a court or a tribunal or a statutory appeal to a minister) and other remedies and proposed that the former should be regarded as adequate alternative remedies in this context.^[61] We noted that ministerial default powers, while legal remedies, require slightly different treatment. The modern view is that, while the existence of a default power will generally exclude a civil action for damages, it does not exclude the judicial review jurisdiction. However, like other alternative remedies, it is taken account of in the exercise of the court's discretion.^[62] The Court of Appeal has stated that a default power should not preclude judicial review unless the central complaint is in reality about the substantive merits of the decision rather than the authoritative resolution of a legal issue.^[63]
5.33      While we consider that appeals to courts, tribunals and statutory appeals to ministers should normally have to be exhausted before either an application is allowed to proceed,^[64] or a remedy is granted, we believe that a more flexible approach is needed in the case of default powers by ministers. It has been said that when exercising obligations under such powers the minister is quite clearly acting in a purely ministerial capacity.^[65] Although even in relation to the determination of a legal issue some may prefer to seek the exercise of a default power, for instance on grounds of cost, this can involve considerable delay and, even where there has been ultra vires action, the minister may decide not to intervene unless, for instance, he judges that the dispute raises issues of wider application.^[66] We also note that a default power might be regarded as an extraordinary remedy dependent on the discretionary power of a public authority and not therefore an effective remedy for the purposes of Article 26 of the European Convention on Human Rights.^[67]
5.34      We have already proposed that both the Form 86A compiled by the applicant and the Request for Information form which may be sent to the respondent should refer to any alternative remedy^[68]which has been or is being pursued. Where an alternative remedy is being pursued within the three month time limit the respondent might agree to an extension of time.^[69] Alternatively, where a right of appeal lies against an order which is sought to be quashed by certiorari, consideration of whether to allow an application to proceed to a substantive hearing may be adjourned until the appeal is determined or the time limit for appeal has expired.^[70]Although some nominated judges consider that this is a satisfactory way of proceeding, if widely used it could have the effect of clogging up the list with applications for preliminary consideration (in present terminology, leave) which might never proceed. We do not consider that an applicant should be obliged to make such an application and then adjourn it until alternative remedies are exhausted.
5.35      We consider that an application ought not to be allowed to proceed to a substantive hearing unless the applicant has exhausted all alternative legal remedies or demonstrates that, despite the existence of such a remedy, judicial review is an appropriate procedure.^[71] It is accordingly recommended that time taken in the pursuit of alternative remedies should not normally operate to time-bar applicants from applying for judicial review (this includes legal recourse to ministers). This could be done in two ways: (i) time would not start to run until alternative remedies are exhausted; or (ii) the court would be required to take account of the fact that an alternative remedy was being pursued, as a good reason why an application made after 3 months should be allowed to proceed to a substantive hearing. We prefer the second option as it is simpler evidentially, and fits in with our more general proposals for the matter to be considered when the court decides whether an application should proceed to a substantive hearing. Accordingly, we suggest that the court should take account of the fact that an alternative remedy was being pursued as a good reason why an application made after 3 months should be allowed to proceed to a substantive hearing.

Reasons for not allowing an application to proceed to a substantive hearing

5.36      The consultation paper referred to the suggestion, which has been made elsewhere,^[72] that reasons should be given for the refusal of leave. This would be in line with the provisions of the European Convention on Human Rights on the entitlement to a fair and public hearing and to an effective remedy before a national authority.^[73] There was widespread support for this suggestion, and some experienced practitioners stated that reasons were not always given. We note that under the existing common law professional judges as part of their judicial role should "as a rule" provide reasons for their decisions.^[74] We believe that brief reasons for refusal should be given and we think that the layout of the proposed form JRJ^[75] notifying the applicant of the decision will make this easier.

Respondent's consent to a substantive hearing of the application

5.37      The consultation paper suggested that in those cases where both the applicant and the respondent agreed that there was a serious issue to be tried the leave stage might be dispensed with.^[76] Of those who responded the majority favoured this option. We agree, however, with the nominated judges that in judicial review cases the court should always be satisfied that there was an appropriate issue for consideration by judicial review. The respondent's position, which could be indicated on the "request for information" form, would no doubt be a material factor to be taken into account by the court.

Capacity to apply for Judicial Review

5.38      Formerly unincorporated associations were held to be "persons aggrieved" and able to apply for judicial review.^[77] Under the Interpretation Act 1978 "person" includes "a body of persons corporate or incorporate". It has, however, recently been held that, not being legal persons, unincorporated associations have no capacity to make such applications.^[78] The issue of capacity, it was held, preceded, and was quite distinct from, the issue of sufficient interest, which could not be considered until capacity was established. The reformulation of the test for standing from "person aggrieved" to "sufficient interest", which was made in order to facilitate the adoption of a uniform test for standing, thus appears to have had the effect of narrowing the class of those who may apply for judicial review.
5.39      As a matter of principle, we believe this is unfortunate. Many public interest challenges, and especially group challenges to public acts and decisions may be made by unincorporated associations. Although there are cases in which those interested in bringing judicial review proceedings have formed a limited company specifically for this purpose,^[79] it would be a considerable inconvenience and expense if all pressure groups and interested bodies (including trade associations) had to form themselves into limited companies solely for the purpose of making judicial review applications. In cases where urgent relief is sought a requirement of this sort would, moreover, make it impossible in many cases to proceed in time. In other cases the three month time limit would be particularly burdensome. The result is that an unincorporated association appears to be in a worse position in the context of the public law remedies of Order 53 than in other legal proceedings where they can sue and be sued in a representative capacity.^[80]
5.40      Although, as we have said, unincorporated associations have been held not to have capacity to apply for judicial review, it was held in the same case that the members of the two associations which brought the proceedings were liable for the costs of the application even though they were not entitled to be parties to the proceedings.^[81]Apart from questions of costs the court will, rightly, be concerned with the ability of an applicant to give a cross-undertaking as to damages in the event of the case going against him where interim relief is sought. We consider that these matters should be dealt with in the same way as they are in representative actions brought under the Order 15 rule.
5.41      We recommend that unincorporated associations should be permitted to make applications for judicial review in their own name through one or more of their members applying in a representative capacity where the court is satisfied that the members of the applicant association have been or would be adversely affected or are raising an issue of public interest warranting judicial review, and that the members of the association are appropriate persons to bring that challenge (Draft Order 53 r 1(2)).

Note 1   Remedies in Administrative Law, Working Paper No 40, para 98.    [Back]

Note 2   (1936), Cmd 5066.    [Back]

Note 3   Hamlyn Lectures, pp 19-23; “A Possible Programme for Reform”; [1992] PL 221.    [Back]

Note 4   Report on Remedies in Administrative Law (1976) Law Com No 73 paras 37-39.    [Back]

Note 5   Consultation Paper No 126, paras 5.8 - 5.14.    [Back]

Note 6   It was also said to reflect the different considerations which are applicable to public law cases, ie those identified in the consultation paper at para 2.3.    [Back]

Note 7   See RSC (NI), O 53, r 4.    [Back]

Note 8   195 applications for leave to apply for judicial review were made in Northern Ireland in 1992, and 155 in 1993. These figures include 2-3 applications for habeas corpus each year. Of the 155 applications, 10 were refused leave.    [Back]

Note 9   There were 75 applications for leave to apply for judicial review of decisions concerning prisoners in 1993. Of these, 7 were refused leave.    [Back]

Note 10   See 1985 SI 500, creating and inserting Scottish Rule of Court RC 260B.    [Back]

Note 11   Paras 3.5 - 3.6 above.    [Back]

Note 12   Eg comments of the Master of the Rolls, Sir Thomas Bingham, giving the annual Justice lecture on 7 July 1994; and Lord Woolf as reported in the Observer, 29 May 1994.    [Back]

Note 13   Cf JUSTICE-All Souls Review, Administrative Justice: Some Necessary Reforms (1988) p 153 which doubted that the paternalistic attitude implicit in this argument is one the courts ought to adopt.    [Back]

Note 14   M Sunkin, L Bridges and G Mészáros, Judicial Review in Perspective (1993) Public Law Project pp 49 -53. In 1988 62% of cases in homelessness cases were withdrawn after leave, while in 1989 and the first quarter of 1991 the percentage of withdrawals had risen to over two thirds. Recent figures obtained from the Crown Ofice suggest no change in this pattern. See also para 1.11 above.    [Back]

Note 15   See para 4.9 above.    [Back]

Note 16   Consultation Paper No 126, para 5.11.    [Back]

Note 17   See O 53, r 3 and paras 4.3 - 4.7 above for our proposals as to the composition of a revised Form 86A.    [Back]

Note 18   An order for expedition can be obtained from the Judge or the Divisional Court when leave is granted so that the case will then be entered into the expedited list (Part D of the Crown Office List). See Practice Direction (Crown Office List) [1987] 1 WLR 232. An application for expedition should be included in the Form 86A.    [Back]

Note 19   No statistics for the number of represented hearings are available.    [Back]

Note 20   In some cases the application judge may consider it appropriate to send a request for further information form to the respondent. See paras 4.8 - 4.11 above.    [Back]

Note 21   If the applicant wishes to renew the application for leave in a criminal matter, he must lodge a notice within 10 days of the judge’s refusal: O 53, r 3(5). The application will be heard by the Divisional Court: O 53, r 3(4)(a). Unlike an application relating to a civil matter, the applicant is entitled to renew the application to the Divisional Court even where he was refused leave by a single judge at an oral hearing, but he has no right to appeal or to renew his or her application thereafter to the Court of Appeal. In a civil matter a renewed application will be heard by a single judge in open court, or if the court so directs, by the Divisional Court: O 53, r 3(4)(b). In a civil matter where the first leave application is made at an oral hearing (and also if it is a renewed application at an oral hearing), the applicant must renew the application to the Court of Appeal: O 53, r 3(4); O 59, r 14(3). See further Part IX below.    [Back]

Note 22   A Le Sueur and M Sunkin, “Applications for Judicial Review: The Requirement of Leave” [1992] PL 102.    [Back]

Note 23   M Sunkin, L Bridges and G Mészáros, Judicial Review in Perspective (1993) Public Law Project pp 86 - 97. Eg on initial grant of leave there was, between judges, a range of 64% in 1987, 33% in 1988, and 43% in 1991 (p 88). Annex 1 to Appendix C shows a range of 48% during the first seven months of 1994.    [Back]

Note 24   Eg R v Secretary of State for Home Department, ex p Begum [1990] COD 107. Note that some important principles of law have emerged from cases in which leave was initially refused: R v Medical Appeal Tribunal, ex p Gilmore [1957] 1 QB 574; R v Panel on Takeovers and Mergers, ex p Datafin PIC [ 19871 QB 8 15.    [Back]

Note 25   See comments of Laws J in R v Secretary of State for Transport, ex p Richmond-upon-Thames LBC [1994] 1 WLR 74, 98.    [Back]

Note 26   Ie under the proposed Draft O 53, r 4 or r 7(2).    [Back]

Note 27   Supreme Court Act 1981, s 31(3); O 53, r 3(7).    [Back]

Note 28   R v Environment Secretary, ex p Rose Theatre Trust CO [1990] 1 QB 504, on which see P Cane, “Statutes, Standing and Representation” [1990] PL 307 and Sir Konrad Schiemann, “Locus Standi” [1990] PL 342. See also R v Darlington BC, ex p Association of Darlington Taxi Owners, The Times 21 January 1994 (unincorporated association does not have capacity to bring judicial review proceedings).    [Back]

Note 29   One solicitor consultee thought that if parties were sufficiently motivated to raise a legal challenge they should be allowed to do so.    [Back]

Note 30   [1982] AC 617, 630, 643-644, 649, 659.    [Back]

Note 31   But see R v Secretary of State for Transport, ex p Presvac Engineering Ltd (1992) 4 Admin LR 121 and R v Monopolies and Mergers Commission, ex p Argyll Group Plc [ 1986] 1 WLR 763, 774, for the view that the test as to standing used at the substantive hearing really formed part of the exercise of the court’s discretion whether to grant relief. Standing was also considered separately at the substantive hearing in R v Secretary of State for the Environment, ex p Rose Theatre Trust CO [1990] 1 QB 504; R v Legal Aid Board, ex p Bateman [1992] 1 WLR 711 (DC).    [Back]

Note 32   Dicta in this case ([1982] AC 617, 633, 647B, 654, 662) suggest that standing depends to some extent on the seriousness of the illegality alleged, with greater willingness to regard an interest as “sufficient”, where grave, or widespread illegality is alleged. The JUSTICE-All Souls Report stated (op cit p 196, para 8.45) that this seemed fundamentally unsound since, subject to a de minimis principle, the courts ought to be able to act when a breach of the law by a public authority is drawn to their attention. We agree. Although the nature of the power or duty allegedly breached is relevant to the question of standing, the seriousness or widespread nature of the illegality should not be. Quite apart from issues of principle, the more closely the question of the nature of the illegality is tied to the facts of the case, the more difficult it becomes to predict the degree of interest that will be required.    [Back]

Note 33   Eg R v HM Majesty’s Inspectorate of Pollution, ex p Greenpeace [1994] 1 WLR 570 (CA) where it was held that Greenpeace had standing to challenge variation of existing authorizations for the Sellafield site by reason of its membership in the area.    [Back]

Note 34   R v Secretary of State for the Environment, ex p Rose Theatre Trust Co [1990] 1 QB 504; and see n 28 above.    [Back]

Note 35   One consultee considered that in every case it should be the nature of the issue raised rather than a personal connection with the case which determines the standing of the applicant.    [Back]

Note 36   See JUSTICE-All Souls Report, op cit pp 203-204, para 8.62, p 209 and Lord Woolf, “A Possible Programme for Reform”, [1992] PL 221, 233.    [Back]

Note 37   Eg decisions affecting an individual’s legal rights, legitimate expectations, or a refusal to confer some discretionary benefit upon them.    [Back]

Note 38   Where the statutory power or duty concerns, or is owed to an individual, or to a narrow range of individuals an application by a person outside the designated category may fail for want of standing even where she or he is affected. Thus, it is possible that only a person who has been dismissed, or has had a licence revoked, will have sufficient interest to challenge the decision Durayappah v Fernando [1967] 2 AC 337 (as explained in Hoffmann-La Roche Co AG v Secretary of State for Trade and Industry [1975] AC 295); R v LAUTRO, exp Ross [1993] QB 17 (CA)). The position of an applicant who is not affected by a decision which has not been challenged by the person affected is even weaker (R v Legal Aid Board, ex p Bateman [1992] 1 WLR 71 1).    [Back]

Note 39   Consultation Paper No 126, paras 9.26 - 9.28.    [Back]

Note 40   R v Environment Secretary, ex p Rose Theatre Trust Co [1990] 1 QB 504.    [Back]

Note 41   (1) Group given statutory functions in respect of decision: R v Secretary of State for Employment, ex p Equal Opportunities Commission [1994] 2 WLR 409 (HL), para 3.12 above; (2) Group considered appropriate, perhaps because of expertise: R v Secretary of State for Social Services, ex p GLC, The Times, 16 August 1984, (in the CA the point was left open, The Times, 8 August 1985); R v Secretary of State for Social Services, ex p Child Poverty Action Group (1988) [1990] 2 QB 540. See also (3) standing accorded to ratepayers and taxpayers with a reasonable concern irrespective of whether they are affected in a way distinct from the general public: R v GLC, ex p Blackbum [1976] 1 WLR 550; Arsenal FC v Ende [1979] AC 1; R v HM Treasury, ex p Smedley [1985] QB 657.    [Back]

Note 42   R v Chief Adjudication Ofjicer, ex p Bland, The Times, 6 February 1985 (reduction of benefits to striking miners; cf the TUC whose connection was insufficient); Royal College of Nursing of the UK v DHSS [1981] 1 All ER 545, 551B - H; [1981] AC 800 (advice that it was lawful for nurses to carry out abortion where prescribed by a doctor who remained in charge).    [Back]

Note 43   JUSTICE-All Souls Report, op cit, pp 203-204, para 8.61, p 208; Lord Woolf, “A Possible Programme for Reform”, [1992] PL 221.    [Back]

Note 44   See the Barbados Administration of Justice Act 1980, s 6 (drafted by Sir William Wade): “The court may on application for judicial review grant relief in accordance with this Act (a) to any person whose interests are adversely affected by an administrative decision; (b) to any other person if the court is satisfied that that person’s application is justifiable in the public interest in the circumstances of the case”.    [Back]

Note 45   It is anticipated that the issue of standing in public interest challenges may, as it is now, be a relevant factor when considering the grant of a remedy at the substantive hearing.    [Back]

Note 46   Supreme Court Act 1981, s 31(6) and O 53, r 4(1).    [Back]

Note 47   Consultation Paper No 126, paras 4.28 - 4.29. The Administrative Law Bar Association gave the example of contracts entered into to purchase land conditional upon the grant of a satisfactory planning permission as defined by the contract and no challenge having being made within the 3 month period. See the facts of R v Richmond LBC, ex p Meacock [1994] EGCS 7.    [Back]

Note 48   Consultation Paper No 126, paras 4.16 - 4.22. These are reproduced with minor amendments in Appendix D to this report.    [Back]

Note 49   Assuming that any other criteria are met.    [Back]

Note 50   The courts have generally been reluctant to define good reason, deciding whether there is good reason or not on the individual circumstances of each case. See, however, R v Greenwich LBC, ex p Patterson [1993] 2 FLR 886.    [Back]

Note 51   The Times, 30 December 1991 (CA).    [Back]

Note 52   See paras 5.31 - 5.35 below.    [Back]

Note 53   Eg R v Dairy Produce Quota Tribunal, ex p Caswell [1990] 2 AC 738, 747; R v Secretary of State for Health, ex p Furneaux [1994] 2 All ER 652 (CA).    [Back]

Note 54   At para 5.11 above.    [Back]

Note 55   Arguing, for example, that there is no good reason for the grant of leave due to undue delay which has been detrimental to good administration, or which would cause substantial prejudice or hardship.    [Back]

Note 56   See para 4.8 - 4.11 above.    [Back]

Note 57   See Draft O 53, r 3(5)(c), Appendix A below.    [Back]

Note 58   See n 55 above.    [Back]

Note 59   Consultation Paper No 126, para 14.6.    [Back]

Note 60   Ibid, para 14.11.    [Back]

Note 61   See paras 3.24 - 3.26 above.    [Back]

Note 62   Cf Pasmore v Oswaldtwistle Urban District Council [1898] AC 387 where it was held that where a duty is imposed by statute and a specific statutory remedy is created for the enforcement of that remedy, the statutory remedy (in that case a complaint to the Local Government Board) is the only remedy available and other remedies (like mandamus) are excluded. However, the existence of default powers was found not to preclude judicial review in eg R v ILEA, ex p Ali and Murshid [1990] COD 317; R v Secretary of State for the Environment, ex p Ward [1984] 1 WLR 834; R v Secretary of State for the Environment, ex p Lee (1987) 54 P & CR 31 1; R v Ealing LBC, exp Times Newspapers [1987] IRLR 129.    [Back]

Note 63   See R v Devon County Council, ex p Baker and Johns (1994) 6 Admin LR, 113, 136 per Simon Brown LJ.    [Back]

Note 64   If a statutory appeal to a minister takes a very long time it might be thought a good reason for bringing an application for judicial review outside the three month time limit.    [Back]

Note 65   R v Secretary of State for Education and Science, ex p Chance, Woolf J (unreported 26 July 1982) cited in R v Secretary of State for Education, ex p Prior [1994] COD 197.    [Back]

Note 66   Eg R v Secretary of State for Education, ex p Prior [1994] COD 197, albeit in the context of a challenge to the minister’s refusal to exercise his default power. The original decision was not susceptible to judicial review because it concerned a complaint about a contract of employment (transcript 21 December 1993 pp 13 - 15).    [Back]

Note 67   App 14545/89 Byloos v Belgium (1990) 66 ECHR 238. See generally Van Dijk and Van Hoof, op cit 88-93.    [Back]

Note 68   See para 4.6 above.    [Back]

Note 69   A respondent may consent to an extension of time: see Practice Direction (Crown Office List: Criminal proceedings) [1983] 1 WLR 925, 926,    [Back]

Note 70   See O 53, r 3(8) which states: where leave is sought to apply for an order of certiorari to remove for the purpose of its being quashed any judgment, order, conviction or other proceedings which is subject to appeal and a time is limited for the bringing of the appeal, the Court may adjourn the application for leave until the appeal is determined or the time for appealing has expired.    [Back]

Note 71   A number of consultees were concerned that applicants should be entitled to apply for judicial review both of the appeal and of any matters involved in the original decision which were not adequately remedied by the appeal. This is discussed further in Part IX below.    [Back]

Note 72   A Le Sueur and M Sunkin, “Applications for Judicial Review: The Requirement of Leave” [1992] PL 102. See Consultation Paper No 126, para 5.12.    [Back]

Note 73   Articles 6(1) and 13. Eg App 12275/86 Les Travaux du Midi v France (1991) 70 ECHR 47 and see generally para 2.1 1 above.    [Back]

Note 74   See Eagil Trust Co Ltd v Piggot-Brown [1985] 3 All ER 1 19; R v Knightsbridge Crown Court, e x p ISC Ltd [1981] 3 WLR 640 and para 2.29 n 43 above.    [Back]

Note 75   See para 4.12 above.    [Back]

Note 76   Consultation Paper No 126, para 5.13. But cf R v Durham CC, ex p Robinson [1992] NPC 5, The Times 31 January 1992. One consultee thought that in practice a form of consent operates already ie when an oral application is heard on notice and no objection is made by the respondent.    [Back]

Note 77   R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators and Liverpool Taxi Owners Association [1972] 2 QB 299, 308H-309A, 312B-C; (Lord Denning MR, Roskill LJ and Sir Gordon Willmer) .    [Back]

Note 78   R v Darlington BC, ex p Association of Darlington Taxi Owners and Another, The Times 21 January 1994.    [Back]

Note 79   R v Hammersmith and Fulham LBC, ex p People Before Profit Ltd (1981) 80 LGR 322, referred to in R v Darlington BC, ex p Association of Darlington Taxi Owners The Times 21 January 1994.    [Back]

Note 80   0 15, r 12.    [Back]

Note 81   R v Darlington BC, ex p Association of Darlington Taxi Owners and another (No 2) The Times 14 April 1994. Although Sedley J in R v London Borough of Tower Hamlets, ex p Tower Hamlets Combined Traders Association [1994] COD 325 stated that in principle it did not matter that the applicant was an unincorporated association lacking legal personality, he added that nevertheless there were consequential matters, such as the enforcement of costs orders, which made it necessary that the applicant should be a legal person.    [Back]