Judicial review procedure
Before applying for judicial review ask yourself:
1. is there a public body?
2. Is there an issue of public law?
3. Is it reviewable?
4. Do you have standing?
5. What remedy are you requesting?
6. What are the grounds for review?
7. Have other remedies been exhausted/ is there a specific statutory procedure?
1. Public bodies
- Only public bodies, not private bodies, are amenable to judicial review;
- Some institutions are clearly public bodies: secretaries of sate, local councils, police forces.
- Other cases are not obvious
- R v Panel on takeovers and mergers, ex parte datafin [1987] QB 815
- The city takeover panel is an unusual body, it was not set up by government. It administered a
code of conduct regulating how takeovers and mergers are to be conducted. A company cannot
trade on the London stock exchange without complying with the citypanel. Therefore, if this is
breached, the takeover panel can sanction the offender. The code was part of the machinery for
regulating a major national institution- the stick exchange. It was supported by the bank of
England ( which makes several appointments to its board). If the panel did not exist, the
government would have to create a similar body (as exists in other countries). It was referred to
in legislation, which was built around it.
The test
- Would government have legislated to regulate the field had this regulation not existed.- the
court of appeals answer is -yes
R v Disciplinary committee of the jockey club, ex aprte aga khan [1993] 1 WLR 909
- The jockey club regulates horseracing. Memebership essential for racing. The disciplinary
committee- fining trainer for a horse failing a drug test. Court decided it was not a public body.
The Jockey Club has “not been woven into any system of governmental control of horse racing,
perhaps because it has itself controlled horse racing so successfully that there has been no need
for any such governmental system and such does not exist”.
Sporting associations
- But isn’t that exactly the datafin test- government would have regulated had this voluntary
regulation not existed. Similar decisions regarding other sporting bodies (FA, greyhound racing),
apparent contradiction with datafin perhaps will only be settled by SC.
- One indicator the court relies on in aga khan is the existence of a contract between the parties is
a very strong as an indicator that the matter is only a private law dispute, but is this a sufficient
explanation for the decision? Of course the body is not incorporated by statute. That would be a
core example of a public body. The question arises as it is set up privately.
Religious bodies
- R v Chief rabbie ex p. wachmann [1992] 1 WLR 1036
- No JR as not regulation which but its existence gov’t would regulate (except the established
church.)
Other public/ private distinctions
- S.6, human rights act
- EU directives
2. An issue of public law
- When public bodies make contracts, torts or have property disputes, they fall within ordinary
‘private’ law rules. Claims for JR may not be used instead.
- When a claim is based on public law a litigant cannot bring civil suit to circumvent that.
- The civil procedure rules part 54 protect public authorities from groundless or delayed attacks by
its requirements, so it would be wrong to allow evasion of its limits.
Before applying for judicial review ask yourself:
1. is there a public body?
2. Is there an issue of public law?
3. Is it reviewable?
4. Do you have standing?
5. What remedy are you requesting?
6. What are the grounds for review?
7. Have other remedies been exhausted/ is there a specific statutory procedure?
1. Public bodies
- Only public bodies, not private bodies, are amenable to judicial review;
- Some institutions are clearly public bodies: secretaries of sate, local councils, police forces.
- Other cases are not obvious
- R v Panel on takeovers and mergers, ex parte datafin [1987] QB 815
- The city takeover panel is an unusual body, it was not set up by government. It administered a
code of conduct regulating how takeovers and mergers are to be conducted. A company cannot
trade on the London stock exchange without complying with the citypanel. Therefore, if this is
breached, the takeover panel can sanction the offender. The code was part of the machinery for
regulating a major national institution- the stick exchange. It was supported by the bank of
England ( which makes several appointments to its board). If the panel did not exist, the
government would have to create a similar body (as exists in other countries). It was referred to
in legislation, which was built around it.
The test
- Would government have legislated to regulate the field had this regulation not existed.- the
court of appeals answer is -yes
R v Disciplinary committee of the jockey club, ex aprte aga khan [1993] 1 WLR 909
- The jockey club regulates horseracing. Memebership essential for racing. The disciplinary
committee- fining trainer for a horse failing a drug test. Court decided it was not a public body.
The Jockey Club has “not been woven into any system of governmental control of horse racing,
perhaps because it has itself controlled horse racing so successfully that there has been no need
for any such governmental system and such does not exist”.
Sporting associations
- But isn’t that exactly the datafin test- government would have regulated had this voluntary
regulation not existed. Similar decisions regarding other sporting bodies (FA, greyhound racing),
apparent contradiction with datafin perhaps will only be settled by SC.
- One indicator the court relies on in aga khan is the existence of a contract between the parties is
a very strong as an indicator that the matter is only a private law dispute, but is this a sufficient
explanation for the decision? Of course the body is not incorporated by statute. That would be a
core example of a public body. The question arises as it is set up privately.
Religious bodies
- R v Chief rabbie ex p. wachmann [1992] 1 WLR 1036
- No JR as not regulation which but its existence gov’t would regulate (except the established
church.)
Other public/ private distinctions
- S.6, human rights act
- EU directives
2. An issue of public law
- When public bodies make contracts, torts or have property disputes, they fall within ordinary
‘private’ law rules. Claims for JR may not be used instead.
- When a claim is based on public law a litigant cannot bring civil suit to circumvent that.
- The civil procedure rules part 54 protect public authorities from groundless or delayed attacks by
its requirements, so it would be wrong to allow evasion of its limits.
