LECTURE 5
GROUNDS FOR REVIEW: PROCEDURAL UNFAIRNESS
Learning outcomes
An attentive student should have acquired:
a) An understanding of the role of the courts within this area of the supervisory jurisdiction
b) Sufficient understanding of the judicial approach to fairness challenges to be able to research and analyse
further case law effectively
c) A grasp of the development and content of the doctrine of legitimate expectations and its leading case
This lecture deals very briefly with the courts’ reaction to administrative failure to observe
legislatively expressed procedural safeguards. That is followed by an explanation of the
requirements of natural justice, and a survey of the common law guidance on what natural
justice or the duty of fairness may involve in specific decision-making processes. There is then
an introduction to the growth of review for breach of legitimate expectation, and the main
controversies to which its development has given rise.
INTRODUCTION
The third main ground of judicial review is procedural impropriety or, more simply, unfairness.
This is an area in which the courts are and long have been the ultimate experts, since the
whole point of court procedure is to achieve fair adjudication. The approach of the courts to
the fairness of decision-making or adjudication by public authorities is therefore invasive,
because this is an area in which judges feel an understandable confidence.
The first, and more minor division of the subject, concerns the courts’ oversight of the
procedural protections provided by legislation. It equally covers the question of what should
happen when such requirements have been breached.
1. Statutorily imposed mandatory and directory requirements
First, what kind of requirements might typically be imposed? Examples might be that third
parties affected by an application or a decision should be notified, perhaps within a certain
time. There could be a requirement that they should be consulted. It may be necessary to
notify a right of appeal. It may be necessary to publish a decision.
The difficulty is this: while legislation frequently imposes requirements of this type, it rarely
says what should happen if they are breached. That has been left to the common law to
determine.
The common law has traditionally placed all legislatively-created procedural requirements in
either of two broad categories – mandatory and directory requirements. If a mandatory
requirement is breached, that non-compliance will render the decision void; it will be ultra
vires. If a merely directory requirement has been breached, the decision affected will not be
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GROUNDS FOR REVIEW: PROCEDURAL UNFAIRNESS
Learning outcomes
An attentive student should have acquired:
a) An understanding of the role of the courts within this area of the supervisory jurisdiction
b) Sufficient understanding of the judicial approach to fairness challenges to be able to research and analyse
further case law effectively
c) A grasp of the development and content of the doctrine of legitimate expectations and its leading case
This lecture deals very briefly with the courts’ reaction to administrative failure to observe
legislatively expressed procedural safeguards. That is followed by an explanation of the
requirements of natural justice, and a survey of the common law guidance on what natural
justice or the duty of fairness may involve in specific decision-making processes. There is then
an introduction to the growth of review for breach of legitimate expectation, and the main
controversies to which its development has given rise.
INTRODUCTION
The third main ground of judicial review is procedural impropriety or, more simply, unfairness.
This is an area in which the courts are and long have been the ultimate experts, since the
whole point of court procedure is to achieve fair adjudication. The approach of the courts to
the fairness of decision-making or adjudication by public authorities is therefore invasive,
because this is an area in which judges feel an understandable confidence.
The first, and more minor division of the subject, concerns the courts’ oversight of the
procedural protections provided by legislation. It equally covers the question of what should
happen when such requirements have been breached.
1. Statutorily imposed mandatory and directory requirements
First, what kind of requirements might typically be imposed? Examples might be that third
parties affected by an application or a decision should be notified, perhaps within a certain
time. There could be a requirement that they should be consulted. It may be necessary to
notify a right of appeal. It may be necessary to publish a decision.
The difficulty is this: while legislation frequently imposes requirements of this type, it rarely
says what should happen if they are breached. That has been left to the common law to
determine.
The common law has traditionally placed all legislatively-created procedural requirements in
either of two broad categories – mandatory and directory requirements. If a mandatory
requirement is breached, that non-compliance will render the decision void; it will be ultra
vires. If a merely directory requirement has been breached, the decision affected will not be
1
