Public law template for judicial review
Does the claim raise public law issues?
it is a public law issue for a public law claim = judicial review
it is a private law issue for a private law claim = ordinary proceedings
it is a public law issue for private law proceedings = defence through principle of collateral challenge
does it affect the public at large? i.e nature reserves etc. apply the facts. Can’t be between two
individuals for example
When a claimant’s case raises purely public law issues, judicial review procedure should normally be
followed, rather than ordinary private law procedure principle of procedural exclusivity O'Reilly v
Mackman
The claim has to be against a public body (the government) on public law grounds (fair hearing)
Private law grounds include a breach of contract or a claim in tort for negligent misstatement)
Most common types of public law issues = making a compulsory purchase over land, challenge to the
grant (or refusal) of a licence permitting a particular type of activity to be carried out, challenges to
refusal of discretionary financial grants
Ex p Datafin test
- If the body making the decision has been set up under statute or under delegated legislation,
or derived its power under a reviewable prerogative power, then it’s a public body
- If this is not the case, then the court goes on to apply the second stage, namely the nature of
power test. Under this part, if the body making the decision is exercising public law functions,
it may still be a public body.
Secretary of state counts as a public body exercising powers granted by statute
Exception to procedural exclusivity
Where a case involves both private and public law Roy v Kensington Family Practitioner Committee
[1992] = where a claim is based on a mixture of private rights and public law grounds, the public law
element may be raised in private law proceedings.
A public law issue may be raised as a defence in private law proceedings through the principle of
‘collateral challenge’
The House of Lords confirmed that a defence alleging the invalidity of a public law decision may be
raised either in private law proceedings or through judicial review. In this case, the public law issue is
said to arise ‘collaterally’ in the private law proceedings Wandsworth London Borough Council v
Winder [1985]
R (on the application of Beer) v Hampshire Farmers Market Ltd [2004] 1 WLR 233
says that the two are the same. If you satisfy the datafin test then you’ll satisfy the public authority
case too
If convention rights are engaged, is D a public authority? HRA s6
it is unlawful for a public authority (including a ‘court’) to act in a way which is incompatible with
Convention rights (unless giving effect to an incompatible statute). This affects grounds of challenge
in judicial review of administrative acts. HRA s6
Why Human Rights…HRA has incorporated the ECHR into English law…..
S2(1) HRA creates a duty for courts or tribunals, when dealing with questions connected to ECHR
, rights, to take into account any judgement or decision by the ECtHR
S6(1) – there are two types of public authorities
1- Core public authorities (s6(1) ie governmental bodies (with a statutory convention, public
funding, democratic accountability, funded wholly or partially through public funds, and/or
which have special powers (Aston Cantlow v Wallbank) ALSO, courts and tribunals are public
authorities (s6(3)(a)
2- Functional or hybrid public authorities (s6(3)(b)) are obliged to uphold convention rights only
when exercising public functions, but not when exercising private functions (s6(5)).
Functional public bodies perform functions of a public nature (Aston Cantlow)such as:
Exercising statutory powers, using public funding, providing a public service
Sufficient interest?
Is there sufficient interest Senior Courts Act (SCA) 1981 s 31(3)
The degree to which the claimant has been affected is taken into account when deciding whether they
can use judicial review
The statute itself contains no definition of ‘sufficient interest’ – the factors have been developed
through case law
This will not present a problem if a claimant is personally affected by a decision, but may be an issue if
the claimant has no personal interest
You have to be impacted by the decision in order to challenge it. Spell this out ie. X is going to lose their
house because of a CPO
R v the Inland Revenue Commissioners ex parte National Federation of Self Employed & Small Businesses
Ltd fleet street traders all took cash and didn’t pay tax. Court said they van just pay it going forward.
Lobby group of small businesses that had always paid taxes said it was unfair. They didn’t have standing
for judicial review as the tax wasn’t affecting them
Pressure groups/ interest groups/ lobby group/ any association
Pressure groups can prevail if lack of sufficient interest is shown
R v the Secretary of State for Foreign Affairs ex parte World Development Movement Ltd
Established the 5 factors for deciding whether a pressure group had standing
1- Need to uphold rule of law
2- Importance of the issue raised
3- Likely absence of any other responsible challenger
4- Nature of alleged breach of duty
5- Role of the pressure group
Think about if they aren’t going to bring the case forward- can anyone else bring the case forward? If
the lobby/ pressure group is the only one with the money to bring forward the claim then it should most
likely be heard
Don’t need all of the points in order to bring the claim forward
If convention rights are engaged, is C a ‘victim’? (HRA s7)
S7(1) HRA = claimant must be a victim
Victim is given the same definition as art 34 ECHR, which Klass v Germany has defined as ‘any natural or
legal person ‘directly affected’ by an actual or potential breach
Does the claim raise public law issues?
it is a public law issue for a public law claim = judicial review
it is a private law issue for a private law claim = ordinary proceedings
it is a public law issue for private law proceedings = defence through principle of collateral challenge
does it affect the public at large? i.e nature reserves etc. apply the facts. Can’t be between two
individuals for example
When a claimant’s case raises purely public law issues, judicial review procedure should normally be
followed, rather than ordinary private law procedure principle of procedural exclusivity O'Reilly v
Mackman
The claim has to be against a public body (the government) on public law grounds (fair hearing)
Private law grounds include a breach of contract or a claim in tort for negligent misstatement)
Most common types of public law issues = making a compulsory purchase over land, challenge to the
grant (or refusal) of a licence permitting a particular type of activity to be carried out, challenges to
refusal of discretionary financial grants
Ex p Datafin test
- If the body making the decision has been set up under statute or under delegated legislation,
or derived its power under a reviewable prerogative power, then it’s a public body
- If this is not the case, then the court goes on to apply the second stage, namely the nature of
power test. Under this part, if the body making the decision is exercising public law functions,
it may still be a public body.
Secretary of state counts as a public body exercising powers granted by statute
Exception to procedural exclusivity
Where a case involves both private and public law Roy v Kensington Family Practitioner Committee
[1992] = where a claim is based on a mixture of private rights and public law grounds, the public law
element may be raised in private law proceedings.
A public law issue may be raised as a defence in private law proceedings through the principle of
‘collateral challenge’
The House of Lords confirmed that a defence alleging the invalidity of a public law decision may be
raised either in private law proceedings or through judicial review. In this case, the public law issue is
said to arise ‘collaterally’ in the private law proceedings Wandsworth London Borough Council v
Winder [1985]
R (on the application of Beer) v Hampshire Farmers Market Ltd [2004] 1 WLR 233
says that the two are the same. If you satisfy the datafin test then you’ll satisfy the public authority
case too
If convention rights are engaged, is D a public authority? HRA s6
it is unlawful for a public authority (including a ‘court’) to act in a way which is incompatible with
Convention rights (unless giving effect to an incompatible statute). This affects grounds of challenge
in judicial review of administrative acts. HRA s6
Why Human Rights…HRA has incorporated the ECHR into English law…..
S2(1) HRA creates a duty for courts or tribunals, when dealing with questions connected to ECHR
, rights, to take into account any judgement or decision by the ECtHR
S6(1) – there are two types of public authorities
1- Core public authorities (s6(1) ie governmental bodies (with a statutory convention, public
funding, democratic accountability, funded wholly or partially through public funds, and/or
which have special powers (Aston Cantlow v Wallbank) ALSO, courts and tribunals are public
authorities (s6(3)(a)
2- Functional or hybrid public authorities (s6(3)(b)) are obliged to uphold convention rights only
when exercising public functions, but not when exercising private functions (s6(5)).
Functional public bodies perform functions of a public nature (Aston Cantlow)such as:
Exercising statutory powers, using public funding, providing a public service
Sufficient interest?
Is there sufficient interest Senior Courts Act (SCA) 1981 s 31(3)
The degree to which the claimant has been affected is taken into account when deciding whether they
can use judicial review
The statute itself contains no definition of ‘sufficient interest’ – the factors have been developed
through case law
This will not present a problem if a claimant is personally affected by a decision, but may be an issue if
the claimant has no personal interest
You have to be impacted by the decision in order to challenge it. Spell this out ie. X is going to lose their
house because of a CPO
R v the Inland Revenue Commissioners ex parte National Federation of Self Employed & Small Businesses
Ltd fleet street traders all took cash and didn’t pay tax. Court said they van just pay it going forward.
Lobby group of small businesses that had always paid taxes said it was unfair. They didn’t have standing
for judicial review as the tax wasn’t affecting them
Pressure groups/ interest groups/ lobby group/ any association
Pressure groups can prevail if lack of sufficient interest is shown
R v the Secretary of State for Foreign Affairs ex parte World Development Movement Ltd
Established the 5 factors for deciding whether a pressure group had standing
1- Need to uphold rule of law
2- Importance of the issue raised
3- Likely absence of any other responsible challenger
4- Nature of alleged breach of duty
5- Role of the pressure group
Think about if they aren’t going to bring the case forward- can anyone else bring the case forward? If
the lobby/ pressure group is the only one with the money to bring forward the claim then it should most
likely be heard
Don’t need all of the points in order to bring the claim forward
If convention rights are engaged, is C a ‘victim’? (HRA s7)
S7(1) HRA = claimant must be a victim
Victim is given the same definition as art 34 ECHR, which Klass v Germany has defined as ‘any natural or
legal person ‘directly affected’ by an actual or potential breach
