The Law Commission

PART VIII REMEDIES

Nomenclature

8.1      An applicant seeking judicial review may claim one or more of the following final forms of relief: the prerogative orders of mandamus, prohibition or certiorari, and a declaration or injunction. Damages may also be awarded in certain limited circumstances.^[1] None of the modern procedural reforms has altered the nature of the prerogative orders and we do not propose any such reform now. We acknowledge their long history^[2] and the importance of the fact that they are "prerogative" and granted at the suit of the Crown as indicated by the title of the Proceedings.^[3]
8.2      The latin names of the orders (mandamus and certiorari), however, obscure their functions to non-lawyers. By contrast, in a number of Commonwealth jurisdictions, where statute has introduced a modern judicial review procedure, mandamus, prohibition and certiorari have been replaced by a modern review remedy to compel, prohibit or set aside the exercise of administrative power.^[4] Although we recognise that there are limits in the extent to which legal terminology can be made accessible to laypeople, we believe it desirable that the function of a legal remedy should be as understandable as it can be.
8.3      We therefore recommend that the latin titles of the orders be replaced so that the prerogative orders the court would have power to make in judicial review proceedings would be called: a mandatory order, a prohibiting order, and a quashing order. In judicial review proceedings these orders would be available as well as injunctions and declarations and together with damages and awards for money due and of restitution (see below). Clause 1 of the Draft Bill annexed to this report substitutes a new section 31 of the Supreme Court Act 1981 and subsection (3) of this Bill provides that the High Court shall have jurisdiction to make mandatory, prohibiting and quashing orders in those classes of case in which it had jurisdiction to make orders of mandamus, prohibition and certiorari respectively. This makes it clear that the modernisation of the titles of the prerogative orders is simply a relabelling, and makes no substantive change at all.

Title of cases

8.4      It was suggested to us on consultation that cases should be simply described as "In the matter of an application for judicial review: ex parte Applicant, R v Respondent", as this would standardise the title of proceedings, simplify indexing and make cases easier to find. It was also suggested that the title of the action should remain the same between the application for leave (preliminary consideration) and the hearing of the substantive application with an endorsement at the top indicating "Application permitted to proceed by order of Mr Justice X dated.. . . " The Commission supports these proposals, which it considers might appropriately be dealt with by the issue of a Practice Direction.

Claims for Restitution and in Debt, and Interest

8.4      At present, although the court may, in an application for judicial review, award damages if there is a right to damages in private law,^[5] it cannot make a restitutionary order in such proceedings.^[6] There was unanimous agreement with, and support for, allowing restitutionary claims to be joined with applications for judicial review. We recommend that, as is the case for damages, the court may order restitution in judicial review proceedings provided such restitution would have been granted in an action begun by writ (Draft Bill, clause 1, new section 31B(3) and Draft Order 53 rules 1 and 8).

8.6 Where there is a private law right to restitution, as there now is in respect of ultra vires receipts by public authorities,^[7] on the principles set out in Part III above, it should not be an abuse of process to initiate a claim for restitution by action rather than proceeding under Order 53.^[8] Accordingly, as in the case of claims for damages, the availability of restitutionary relief within Order 53 should be without prejudice to a claimant's right to proceed by way of writ if he chooses.

8.7      We also recommend that, as is the case for damages and is proposed for restitution, the court may award a liquidated sum in judicial review proceedings provided such an award would have been made in an action begun by writ (Draft Bill, clause 1, new section 31B(3) and Draft Order 53 rule 8).
8.8      In cases where, in judicial review proceedings, the court awards damages or a liquidated sum or orders restitution, we consider that it should have the same power to award interest as it would have had in an action begun by writ.^[9]

Advisory declarations

8.9      The need for citizens and authorities to 'know where they stand', which is part of the public interest in good administration, may be relevant to the courts' jurisdiction to adjudicate on matters where the exercise of statutory or prerogative power is not being directly challenged. In private law it has been held that the courts' interest in any particular matter is exhausted by the private dispute at issue.^[10] In public law, however, the considerations may be different.
8.10      Our consultation paper invited views as to whether the courts should be able to grant declarations when there is no decision to be impugned. We pointed to cases indicating that there may be circumstances in which the court will exercise a discretion to adjudicate even if circumstances have made the issue to some extent moot.^[11] The courts have also been willing to review advisory guidance, for instance government circulars^[12] and government information leaflets^[13] which in themselves have no direct legal effect. However, it has also been held that the court has no jurisdiction to grant a declaration amounting to an advisory opinion, for instance as to the scope of a public body's powers, even though a clear issue of law arose.^[14]
8.11      There was widespread support for the granting of advisory declarations provided that the jurisdiction was carefully exercised. It was said that some of the cases in which declaratory relief has been given are in fact examples of advisory declarations.^[15] It was also suggested that the judges currently have an inherent jurisdiction to make advisory declarations in the exercise of their discretion and that the inhibition on their use is self-imposed and may not apply to the exercise of supervisory jurisdiction by judicial review.^[16] While conscious of the numbers of applications to impugn actual decisions and the undoubted caseload pressures on the judicial review jurisdiction,^[17] we accept that the power to grant 'advisory opinions' may be of considerable aid to public authorities and individuals faced with the interpretation of complex statutes drafted in very general terms (particularly those stemming from EC law).
8.12      We believe, however, that it is desirable to make the position clear. In view of the long-standing tradition that the courts do not enter into purely hypothetical questions,^[18] the clear position in private law cases and the divergence of views as to the position in public law cases, we do not consider that reliance can safely be placed on the inherent jurisdiction of the court. We recommend that explicit provision be made for the High Court to make advisory declarations in the exercise of its supervisory jurisdiction by way of judicial review (Draft Bill, clause 1, new section 31A(4)(b)).
8.13      Although many of those who responded gave their warm support to the proposal few indicated the nature of the safeguards that would be required, beyond indicating that without safeguards the court might be faced with a very large number of applications for this kind of relief. It has been suggested that purely academic cases should be prevented from proceeding,^[19] as should cases where primary or secondary legislation on the matter in issue is going through Parliament. One option would be to leave it to the courts to develop their own jurisdiction and practice in the use of advisory declarations. Another suggestion was to provide that an advisory declaration should only be made in cases where there is: (i) a serious issue of law to be determined as to the scope of the rights, power or duties of a public body; and (ii) the issue of law is relevant to the performance of the public body's function. These two requirements do not, however, appear to us to be significant safeguards; they would permit an advisory declaration to be made even where the resolution of the question of law was not necessary for the performance of the public body's function.
8.14      We consider that safeguards should be created, that these should reserve this remedy for cases of general importance but that judicial discretion to develop the law must not be unduly hampered. Accordingly, we recommend that where the judge is satisfied that the application is for an advisory declaration, he should also be satisfied that the point concerned is one of general public importance, before he makes the advisory declaration or, at the initial stage, allows the application to proceed to a substantive hearing (Draft Bill, clause 1, new section 31A(5)).

Power to make substitute orders

8.15      Where the High Court considers that there are grounds for quashing the decision of an inferior court, tribunal or authority, the High Court may, in addition to quashing the order, remit the matter to the inferior court, tribunal or authority, with a direction to reconsider it and reach a decision in accordance with the findings of the Court.^[20] Our consultation paper raised the question whether in certain circumstances the High Court should also have the power to substitute its own order for that of an inferior body.^[21] There was significant support for this proposal^[22]' provided that it was restricted to exceptional cases i.e. where it could be said that to remit the decision was a mere formality.
8.16      It would not be appropriate to exercise a power of substitution where a decision is judicially reviewed on the ground of breach of natural justice or abuse of discretion. In such cases there will often be more than one permissible answer open to the lower court or administrative body and a power of substitution would be incompatible with the court's reviewing function. However, where the ground of review is error of law and the error of law is one which, once corrected, necessarily leads to an obvious outcome, an order remitting the case to that court may now appear to be a remnant of an outmoded and unjustified insistence on procedural propriety.^[23] In the case of decisions by administrative authorities such as ministers and regulatory bodies the need to make it clear that the exercise of the judicial review jurisdiction is a supervisory one means that we do not recommend in those cases a power of substitution. We do, however, consider that different considerations apply to courts and tribunals. We recommend that in the case of decisions by an inferior court or tribunal the reviewing court should be empowered to substitute its own decision for the decision to which the application relates provided that: (i) there was only one lawful decision that could be arrived at; and (ii) the grounds for review arose out of an error of law (Draft Bill, clause 1, new section 31(4)&),(5)).

Discretionary denial of remedies

8.17      The consultation paper expressed the view that provided that the discretion to grant or refuse remedies is strictly limited and the rules for its exercise clearly understood the mere fact that it exists should not be a cause for concern.^[24] The majority of those who responded agreed with the proposition and accepted that a limited discretion to refuse relief should be available. No consultee thought that reliance on discretionary factors had affected the conduct or length of the proceedings. Some concern was, however, expressed about the extent to which the merits of a case may in practice influence a court's willingness to exercise its discretion.
8.18      The factor of merit is sometimes considered under the guise of the inevitability of the outcome,^[25] or where there is an issue of natural justice and there are doubts as to the utility of the remedy.^[26] Consideration of the merits may in some cases be inextricably linked with the supervisory and appellate elements of the High Court's jurisdiction over inferior courts. In other cases, it may be seen as part of the proper and necessary consideration to be given to the substance of the alleged unfairness. One particular criticism concerning the relevance of considering merit in judicial review, however, is that it contributes to the blurring of the distinction between appellate and review functions. We make no recommendations for reform in this area because we believe the law is clear. In view of the concerns expressed on consultation we consider it important to state that we consider that it is normally incompatible with the court's reviewing function for the merits of a case to be taken into account in exercising discretion whether to grant relief or not.^[27]
8.19      We do not propose the introduction of further criteria for the exercise of discretion to grant or refuse relief in judicial review when a ground of judicial review has been established. We have, however, recommended the retention of the criteria now contained in section 31 (6) of the Supreme Court Act 1981 for cases involving what the judge determines to be delay without good reason.^[28]
8.20      In cases involving questions of standing or delay the court may exercise its discretion to deny a remedy at the substantive hearing. As it is the intention of our recommendations to return the initial stage of an application for judicial review to a largely ex parte process, conducted on the papers,^[29] it is possible that the leave stage (in our terms, the preliminary consideration) will result in applicants in a slightly higher proportion of cases being permitted to proceed to a substantive application for judicial review. Public policy requirements such as certainty, lack of standing or prejudice to good administration will, however, mean that ultimately a remedy may well not be granted, or that relief will only be granted on a prospective basis. ^[30]
8.21      There was little disagreement with the factors said to be taken into account by the courts at present. These have been established to include waiver, bad faith, and ulterior motives, ^[31] prematurity, absence of injustice or prejudice, impact on third parties and on the administration, the procedural nature of the error and, exceptionally, the fact that the decision would have been the same irrespective of the error.^[32]

Prospective declarations

8.22      We sought views on the desirability of prospective declarations which set out the legal position for the future but only granted on what has been termed "relief on a historic basis".^[33] Most of those who responded considered that prospective declarations^[34] had a limited but useful role to play in public law. It was considered that such relief would be useful, for example, in cases where because of the impact on third parties it was undesirable to grant other relief.^[35] We agree and do not propose limitations on the use or development of prospective declarations, where the court finds these to be the most appropriate form of relief.

Note 1   See para 8.5 below.    [Back]

Note 2   For the history of the prerogative remedies see De Smith’s Judicial Review of Administrative Action (4th ed 1980, ed Evans) Appendix 1, p 584.    [Back]

Note 3   O’Reilly v Mackman [1983] 2 AC 237, 252 - 253 (Lord Denning MR).    [Back]

Note 4   Eg Judicial Review Procedure Act 1971 (Ontario), ss 2-8; Judicature Amendment Act 1972 (New Zealand), s 4; Judicial Review Procedure Act 1979 (British Columbia), s 2; Administrative Decisions (Judicial Review) Act 1977 (Australia), s 16. See also Royal Commission into Civil Rights in Ontario (McRuer Commission) 1968 Vol 1 c 325 ff.    [Back]

Note 5   Cf O 53, r 7(l)(b) which states that “...if the claim had been made in an action begun by the applicant at the time of making his application, he could have been awarded damages” and Supreme Court Act 1981, s 31 (4)(b) which uses “would” rather than “could”. The Draft Bill annexed to this report uses “would”: draft clause 1, new section 31B(3)(b).    [Back]

Note 6   In Scotland, the court may order restitution and payment (whether of damages or otherwise) as well as other orders such a reduction, declarator and interdict. See Scottish Rules of Court 260B(4)(b) in the “Parliaments House Book”. It is not clear whether RC 260B applies to an action for damages and restitution alone.    [Back]

Note 7   Woolwich Equitable BS v IRC [1993] AC 70.    [Back]

Note 8   Lonrho plc v Tebbit [1992] 4 All ER 280; Racz v Home Office [1994] 2 AC 45 (HL). It is not an abuse of process to initiate a claim for damages where misfeasance in a public office is alleged.    [Back]

Note 9   Interest is not payable where there is no private claim. Eg where a grant made by a public body in pursuance of its statutory powers is paid late due to an unlawful decision, see: R v The Secretary of State for Transport, ex p Shemz &Sons, The Independent, January 12 1988. In that case Taylor J stated that “it seemed unjust that the court had no power to award interest in such circumstances. It might be that justice required further extension to section 35A to enable the court to award interest in the exercise of its discretion.” This is part of the question as to whether there should be compensation for ultra vires action and as such is outside the scope of this report, see further para 2.32 above.    [Back]

Note 10   Sun Life Assurance Co of Canada v Jervis [ 1944] AC 111.    [Back]

Note 11   R v Board of Visitors of Dartmoor Prison, ex p Smith [1987] QB 106.    [Back]

Note 12   See Royal College of Nursing v DHSS [1981] AC 800 and Gillick v West Nodolk and Wisbech Area Health Authority [1986] AC 112. See also R v Secretary of State for the Environment, ex p Tower Hamlets LBC [ 1993] QB 632 (CA) (guidelines issued by the Secretary of State).    [Back]

Note 13   R v Secretary of State for the Environment, ex p Greenwich London Borough Council [1989] COD 530.    [Back]

Note 14   R v Secretary of State for Education and Science, ex p Birmingham CC (unreported, 14 May 1991); R v Secretary of State for Defence, ex p Equal Opportunities Commission [ 1992] COD 276.    [Back]

Note 15   See notes 12 - 13 above.    [Back]

Note 16   Eg Laws J in R v Home Secretay, ex p Mehari [1994] 2 WLR 349, 366 and see Sir John Laws, “Judicial Remedies and the Constitution” (1994) 57 MLR 213.    [Back]

Note 17   See para 2.12 - 2.14 above and Appendix C below.    [Back]

Note 18   Re Barnato [1949] Ch 258, 270 (per Lord Greene MR).    [Back]

Note 19   See Sir John Laws, “Judicial Remedies and the Constitution” (1994) 57 MLR 213.    [Back]

Note 20   O 53, r 9(4).    [Back]

Note 21   The present position is that the court can only quash a decision or order and remit it.    [Back]

Note 22   Approximately 80% of those who responded supported this proposal.    [Back]

Note 23   Although in theory situations in which there is only one possible inference from the primary facts are susceptible to the same argument (see the facts in R v Rowe, ex p Mainwaring [1992] 1 WLR 1059 (CA)), a power of substitution could risk the court going beyond its reviewing function.    [Back]

Note 24   Consultation Paper No 126, para 14.2.    [Back]

Note 25   R v Monopolies and Mergers Commission, ex p Argyll Group Plc [1986] 1 WLR 763.    [Back]

Note 26   Glynn v Keele University [1971] 1 WLR 487.    [Back]

Note 27   John v Rees; Martin v Davis; Rees v John [1970] Ch 345; R v Secretary of State for the Environment, ex p Brent LBC [1982] QB 593.    [Back]

Note 28   See paras 5.23 - 5.30 above and Draft O 53, r 2, Appendix A below.    [Back]

Note 29   See Part V above for our proposals on the leave stage.    [Back]

Note 30   See para 8.21 below.    [Back]

Note 31   See for example, R v Commissioners of Customs and Excise, ex p Cook [1970] 1 WLR 450.    [Back]

Note 32   See n 25 and para 8.18 above.    [Back]

Note 33   See Consultation Paper No 126, para 14.5 for a discussion on the types of circumstance where the courts have only granted prospective declarations. See also R v Panel on Takeovers and Mergers, ex p Guinness Plc [1990] 1 QB 146.    [Back]

Note 34   There was some confusion about the meaning of the phrase “relief on an historic footing”. Prospective declarations, as outlined in the case law, are a hybrid of cases where a remedy is refused due to the detriment to good administration but where the court grants declaratory relief as a guide for the future.    [Back]

Note 35   Eg in school admissions policy cases or cases involving the regulation of financial markets.    [Back]