Judicial Review – remedies
JUDICIAL REVIEW – REMEDIES
5 remedies mentioned in S31 (1)
Prerogative orders under the common law, created by the courts
MANDATORY when the court tells the public authority to do something, you’ve
ORDER acted unlawfully so as result you must do…
PROHIBITING when the court tells a public authority they must NOT do
ORDER something
Statutory remedies created by parliament
QUASHING ORDER cancels a previous decision and leaves the public authority in a
position to make the decision again but lawfully
INJUNCTION court tells public authority to do or not do something
DECLARATION declares that something is unlawful, but no legal remedies will
follow
Remedies: their discretionary nature
“It will be for the court to decide whether to make any and, if so, what orders...”
Sir John Donaldson MR in Datafin
- All remedies are now purely discretionary – once the unlawfulness is established the
courts have discretion to do nothing or something from the remedies listed
R (Cowl) v Plymouth Legitimate expectation of a care home to stay open
City Council [2001] The claimant refused to go through the complaints process
with the council and just went straight to judicial review
Court made it very clear that even if the legitimate
expectation succeeded and unlawfulness was established
they were not entitled to give any remedy at all as the case
came to court too soon
R (Hurley & Moore) Business secretary power under challenge was to change
v Business Secretary the tuition fees regime for student finance
[2012] Parliament have given the business secretary massive
power to reorganise higher education
Challenged on illegality – public sector equality duty to pay
attention to inequality conditions
JUDICIAL REVIEW – REMEDIES
5 remedies mentioned in S31 (1)
Prerogative orders under the common law, created by the courts
MANDATORY when the court tells the public authority to do something, you’ve
ORDER acted unlawfully so as result you must do…
PROHIBITING when the court tells a public authority they must NOT do
ORDER something
Statutory remedies created by parliament
QUASHING ORDER cancels a previous decision and leaves the public authority in a
position to make the decision again but lawfully
INJUNCTION court tells public authority to do or not do something
DECLARATION declares that something is unlawful, but no legal remedies will
follow
Remedies: their discretionary nature
“It will be for the court to decide whether to make any and, if so, what orders...”
Sir John Donaldson MR in Datafin
- All remedies are now purely discretionary – once the unlawfulness is established the
courts have discretion to do nothing or something from the remedies listed
R (Cowl) v Plymouth Legitimate expectation of a care home to stay open
City Council [2001] The claimant refused to go through the complaints process
with the council and just went straight to judicial review
Court made it very clear that even if the legitimate
expectation succeeded and unlawfulness was established
they were not entitled to give any remedy at all as the case
came to court too soon
R (Hurley & Moore) Business secretary power under challenge was to change
v Business Secretary the tuition fees regime for student finance
[2012] Parliament have given the business secretary massive
power to reorganise higher education
Challenged on illegality – public sector equality duty to pay
attention to inequality conditions
