CON & AD LAW: JUDCIAL REVIEW PRELIMINARIES
Discuss the Preliminaries: Can the C make a claim for JR?
Amenability of a Decision: Is the D a PUBLIC BODY EXERCISING A PUBLIC FUNCTION?
Apply Datafin test
Actions/decisions of any body which exercises public functions can be reviewed under JR because
only public law decisions are amenable as per the Part 54.1 Civil Procedure Rules (CPR): ‘A claim to
review the lawfulness of … a decision, action or failure to act in relation to the exercise of a public
function’
Classical situation: public law body making a public law decision; i.e. national gov’t, local gov’t, gov’t
agencies
- A public body has (a part of the executive) has taken a decision or action using statutory or
prerogative powers and the client wants to challenge this decision
- Satisfies the source of power test in Datafin.
- Amenable.
- State = ‘ This decision is amenable to JR as X (public body) is carrying out a public function as per
Part 54.1 Civil Procedure Rules and they are acting under statutory powers therefore it is a public
law decision as per ex p Datafin therefore their decision is amenable to JR’ Then reference the
facts of the scenario.
Variants: bodies not created by the government private law body making a public law decision i.e.
contracting out.
- In some situations a decision or action taken by a private body can nevertheless be seen to be
carrying out a public function e.g. the state may have contracted out its obligations to a private body
therefore arguably they are carrying out a public function
- To work this out we need to apply the Datafin test
How would variants come up in the exam? Either self-regulatory bodies or contracting out situation:
Contracting out cases: Self regulatory bodies exercising public functions
ex p Goldsmith: provision of residential
care for elderly was contractual and Datafin, decisions of Advertising Authority (ex p
therefore private i.e. company not exercising Insurance Services) and the Bar Council (ex p
a public function (not amenable) Percival) have been reviewed. In both cases, had
Partnerships in Care: psychiatric hospital there not been a self-regulatory body, Parliament
was private but one of its wards treated would have had to regulate instead
patients with mental illness thus governed by
Mental Health Act, so exercising a public
function (amenable)
CASE AUTHORITY R v City Panel on Takeovers ex p Datafin: Datafin was a self-regulatory body
created by the financial services industry in London. It had no legal personality and no statutory
powers but it carried out an important economic function in the city. Q for the court was whether a
decision taken by the panel was amenable under JR held to be amenable to JR despite the fact it
was not a public body; it was held that where a body’s source of power is not the state, one should
consider the nature of the power and the function of the body. Where the source of power is
, CON & AD LAW: JUDCIAL REVIEW PRELIMINARIES
statute or subordinate legislation AND if the body is exercising a public law function or if the exercise of
Datafin: TWO PART TEST
PART 1: Source of Power: Does the body have statutory powers above what a private
body/individual already has? Was it set up under statute/delegated legislation?
- If yes, it will most likely be amenable, if not, proceed to part 2.
- This includes self regulatory bodies exercising public functions
• See above cases
PART 2: Nature of Power
- Does body exercise public law functions?
- Is the body exercising power governed entirely by contractual law?
- “But for” the body would the State step in?
• If that body that made that decision didn’t exist would the state have to step in to that area
and make that decision? So is it a governmental decision?
- Is the power governmental in nature?
- See case law, for example: ASA; Aga Khan; Wachmann.
• A private care home does not; YL v Birmingham CC
• Sporting body does not; ex p Aga Khan; the court decided that the decision of the Jockey
Club which was being challenged was not subject to JR. Similarly in ex p Football League:
even though the F.A appeared to be carrying out a public function, no JR
• Religious bodies do not unless it’s a school. The court was of the opinion that internal
matters within a religion were of a private nature and therefore could not be subject to judicial
review; ex p Wachmann
its function has public law consequences, the body will be amenable to JR
Procedural exclusivity: Which court should the applicant bring their claim to?
1) This is a pure public law decision and so the challenge must be made using the JR process, in
accordance with the decision in O’Reilly v Mockman. The client should therefore be advised to issue
their application in the Administrative court (using Part 53 CPR)
Standing: Does the C have SUFFICIENT INTEREST to make a claim? It must do, under
s31(3) Senior Court Act 1981
s31(3) Senior Courts Act 1981: applicant must have “sufficient interest” in the matter to which the
application relates
- Consider: is the applicant directly and adversely affected by matter?
- X will have standing as he/she has ‘sufficient interest in the matter to which the applicant relates’
as per s31(3) SCA 1981 and is directly impacted by the decision and there is a logical connection
between her/hiss interest and the challenge, therefore are not busybodies, cranks or timewasters
bringing an action (Fleet Street Casuals)
- Applicants do not have to be ‘directly affected’ to obtain standing in JR (like they do in HR claims)
but must have some connection with the matter under challenge in order to satisfy the sufficient
interest test
- The applicant can be an individual or a group
Discuss the Preliminaries: Can the C make a claim for JR?
Amenability of a Decision: Is the D a PUBLIC BODY EXERCISING A PUBLIC FUNCTION?
Apply Datafin test
Actions/decisions of any body which exercises public functions can be reviewed under JR because
only public law decisions are amenable as per the Part 54.1 Civil Procedure Rules (CPR): ‘A claim to
review the lawfulness of … a decision, action or failure to act in relation to the exercise of a public
function’
Classical situation: public law body making a public law decision; i.e. national gov’t, local gov’t, gov’t
agencies
- A public body has (a part of the executive) has taken a decision or action using statutory or
prerogative powers and the client wants to challenge this decision
- Satisfies the source of power test in Datafin.
- Amenable.
- State = ‘ This decision is amenable to JR as X (public body) is carrying out a public function as per
Part 54.1 Civil Procedure Rules and they are acting under statutory powers therefore it is a public
law decision as per ex p Datafin therefore their decision is amenable to JR’ Then reference the
facts of the scenario.
Variants: bodies not created by the government private law body making a public law decision i.e.
contracting out.
- In some situations a decision or action taken by a private body can nevertheless be seen to be
carrying out a public function e.g. the state may have contracted out its obligations to a private body
therefore arguably they are carrying out a public function
- To work this out we need to apply the Datafin test
How would variants come up in the exam? Either self-regulatory bodies or contracting out situation:
Contracting out cases: Self regulatory bodies exercising public functions
ex p Goldsmith: provision of residential
care for elderly was contractual and Datafin, decisions of Advertising Authority (ex p
therefore private i.e. company not exercising Insurance Services) and the Bar Council (ex p
a public function (not amenable) Percival) have been reviewed. In both cases, had
Partnerships in Care: psychiatric hospital there not been a self-regulatory body, Parliament
was private but one of its wards treated would have had to regulate instead
patients with mental illness thus governed by
Mental Health Act, so exercising a public
function (amenable)
CASE AUTHORITY R v City Panel on Takeovers ex p Datafin: Datafin was a self-regulatory body
created by the financial services industry in London. It had no legal personality and no statutory
powers but it carried out an important economic function in the city. Q for the court was whether a
decision taken by the panel was amenable under JR held to be amenable to JR despite the fact it
was not a public body; it was held that where a body’s source of power is not the state, one should
consider the nature of the power and the function of the body. Where the source of power is
, CON & AD LAW: JUDCIAL REVIEW PRELIMINARIES
statute or subordinate legislation AND if the body is exercising a public law function or if the exercise of
Datafin: TWO PART TEST
PART 1: Source of Power: Does the body have statutory powers above what a private
body/individual already has? Was it set up under statute/delegated legislation?
- If yes, it will most likely be amenable, if not, proceed to part 2.
- This includes self regulatory bodies exercising public functions
• See above cases
PART 2: Nature of Power
- Does body exercise public law functions?
- Is the body exercising power governed entirely by contractual law?
- “But for” the body would the State step in?
• If that body that made that decision didn’t exist would the state have to step in to that area
and make that decision? So is it a governmental decision?
- Is the power governmental in nature?
- See case law, for example: ASA; Aga Khan; Wachmann.
• A private care home does not; YL v Birmingham CC
• Sporting body does not; ex p Aga Khan; the court decided that the decision of the Jockey
Club which was being challenged was not subject to JR. Similarly in ex p Football League:
even though the F.A appeared to be carrying out a public function, no JR
• Religious bodies do not unless it’s a school. The court was of the opinion that internal
matters within a religion were of a private nature and therefore could not be subject to judicial
review; ex p Wachmann
its function has public law consequences, the body will be amenable to JR
Procedural exclusivity: Which court should the applicant bring their claim to?
1) This is a pure public law decision and so the challenge must be made using the JR process, in
accordance with the decision in O’Reilly v Mockman. The client should therefore be advised to issue
their application in the Administrative court (using Part 53 CPR)
Standing: Does the C have SUFFICIENT INTEREST to make a claim? It must do, under
s31(3) Senior Court Act 1981
s31(3) Senior Courts Act 1981: applicant must have “sufficient interest” in the matter to which the
application relates
- Consider: is the applicant directly and adversely affected by matter?
- X will have standing as he/she has ‘sufficient interest in the matter to which the applicant relates’
as per s31(3) SCA 1981 and is directly impacted by the decision and there is a logical connection
between her/hiss interest and the challenge, therefore are not busybodies, cranks or timewasters
bringing an action (Fleet Street Casuals)
- Applicants do not have to be ‘directly affected’ to obtain standing in JR (like they do in HR claims)
but must have some connection with the matter under challenge in order to satisfy the sufficient
interest test
- The applicant can be an individual or a group
