Procedural Exclusivity
Content:
1. Rule = Civil Procedure Rule (CPR) 54.4 = Claimant must seek permission to bring a
JR claim
2. Further guidance found in ‘White Book’
3. Public law matters = to be litigated in JR unless
- Case is based on just facts (Trim v North Dorset District Council 2011)
- Housing cases
- There’s a mixture of public + private law issues (Roy v Kensington)
Procedural Exclusivity to Judicial Review (580-585p)
What is it: restricts what claims can be brought and when
Why it’s there: to protect public bodies from unreasonable/unmeritorious (unlikely to
succeed) claims to be brought against them
Q) To what extent is it desirable/in interest of justice to give public bodies this
procedural shield?
Time Limit - CPR 54.5
- For private law = 6 years to bring a claim (Limitation Act 1980) or 3 years for personal
injury claims
- For public law = Promptly + no later than 3 months after grounds to make claim
first arose (CPR 54.5(1))
-
Issue = not long, not always considered promptly enough even if within 3 months
- Pre-Action Protocal for JR = requires claimants to send letter to defendant before
taking action + give 14 days to respond
Issue = time still running
Some areas have shorter time limit
- Under Civil Procedure (Amendment No.4) Rules 2013
- JR of a planning decision of Secretary of State
= 6 weeks
- Local planning authority
- JR of decision governed by Public Contract Regulations, eg decisions to award
contracts = 30 days
- Why so short? - Not in public interest for decisions to be challenged after longer time
‘Promptly’ depends on circumstances of case ***( no clearly defined test )
- Prejudice/hardship to third parties
,
, - Date of knowledge of decision
- When did it become clear that a decision will have legal effect? (R v Burkett)
Section 31(6) =
“Where the High Court considers that there has been undue delay in making an application for judicial
review, the court may refuse to grant—
(a) leave for the making of the application; or
(b) any relief sought on the application,
If it considers that the granting of the relief sought would be likely to cause substantial hardship to, or
substantially prejudice the rights of, any person or would be detrimental to good administration.”
Application to Extend = CPR 3.1 (2)(a)
Courts recognise public law claims are unlike ordinary civil litigation
1. Strict time limit is required (R v Chartered Accountants)
Time limit may vary pursuant to CPR 3.1 (2)(a)
- Court may extend or shorten time for compliance with any rule, practice direction or Court
Order...
This will require applicants to show:
1. Reasonable explanation for delay.
2. Pursuant to section 31(6) of the Senior Courts Act 1981, that extending the time limit
will not:
a. Cause substantial hardship, or
b. Cause substantial prejudice, or
c. Be detrimental to good administration.
Refused delay = R v Secretary of State for Health (fault of lawyer)
Accepted delay =
R v World Development Movement (became aware late but acted quick)
R v Rochdale (tried other remedies before)
R v Ruddock (raised general public importance)
What if the delay is caused by needing to get legal aid?
In past = sufficient justification R v Jackson 1985
Now = not really R (Kigen) v Secretary of State for Home Department (2015)
, Procedural Fairness
• At common law before 1994, decisions were considered fair if they complied with
the ‘rule of natural justice’ expressed in their Latin format as audi alteram partem
(hear the other side) and nemo judex in sua causa esse (no one should be judged in
their own cause/ interest).
• The ‘rules of natural justice’ ensured that people adversely affected by decisions
would know about the decision and be able to participate in the decision, which
entailed prior notice of the decision and an opportunity to state their case and
influence the outcome of the decision of an unbiased decision maker.
• The requirements of fairness as demanded by the ‘rules of natural justice’ remain
in place post-apartheid, as they are protected by the right to just administrative
action in S33 of the Constitution and PAJA.
• The requirements of fairness are now more generally applied than under the
common law.
o At common law the rules of procedural fairness were applied in a
restrictedmanner.
o The rule against bias was in judicial/ quasi-judicial contexts, and not to
other types of administrative conduct.
o Audi alteram partem was principally applied to cases where someone was
deprived of a right, rather than cases concerning a mere applicant, and
also only to judicial/ quasi-judicial conduct.
• Under the Constitution and PAJA, the requirements of fairness apply to all
administrative conduct, and sometimes apply where the exercise of public power
does not amount to AA, ITO the principle of legality.
• Post-apartheid procedural fairness standards are important because these values
serves to uphold the principles and values that underpin our Constitution
(accountability, responsiveness and openness).
• The problem with procedural fairness standards is that they take time and
resources to uphold and fulfil, possibly to the extent of causing administrative
paralysis at the expense of efficiency.
o For this reason what fairness demands will depends on the circumstances
of each case.
- Procedural Fairness in the Constitutional Era
• In a break from the restrictive application of procedural fairness standards of the
apartheid past, S33 of the Constitution demands all administrative decisions are
subject to procedural fairness standards.
• Where the exercise of public power amounts to AA, S33 provides that such
power must be procedurally fair.
• S3 and S4 of PAJA give greater detail on the content of what fairness demands.
• Where empowering legislation imposes specific procedural fairness standards,
and those standards fall short of what PAJA demands, the empowering
legislationmust be read with PAJA.
• When AA is taken in a manner that does not comply with the standards imposed
by S3 and S4, or when it falls foul against of the rule against bias, the action will
be reviewable ITO S6(2) of PAJA, and could be set aside ITO S8 of PAJA.
Content:
1. Rule = Civil Procedure Rule (CPR) 54.4 = Claimant must seek permission to bring a
JR claim
2. Further guidance found in ‘White Book’
3. Public law matters = to be litigated in JR unless
- Case is based on just facts (Trim v North Dorset District Council 2011)
- Housing cases
- There’s a mixture of public + private law issues (Roy v Kensington)
Procedural Exclusivity to Judicial Review (580-585p)
What is it: restricts what claims can be brought and when
Why it’s there: to protect public bodies from unreasonable/unmeritorious (unlikely to
succeed) claims to be brought against them
Q) To what extent is it desirable/in interest of justice to give public bodies this
procedural shield?
Time Limit - CPR 54.5
- For private law = 6 years to bring a claim (Limitation Act 1980) or 3 years for personal
injury claims
- For public law = Promptly + no later than 3 months after grounds to make claim
first arose (CPR 54.5(1))
-
Issue = not long, not always considered promptly enough even if within 3 months
- Pre-Action Protocal for JR = requires claimants to send letter to defendant before
taking action + give 14 days to respond
Issue = time still running
Some areas have shorter time limit
- Under Civil Procedure (Amendment No.4) Rules 2013
- JR of a planning decision of Secretary of State
= 6 weeks
- Local planning authority
- JR of decision governed by Public Contract Regulations, eg decisions to award
contracts = 30 days
- Why so short? - Not in public interest for decisions to be challenged after longer time
‘Promptly’ depends on circumstances of case ***( no clearly defined test )
- Prejudice/hardship to third parties
,
, - Date of knowledge of decision
- When did it become clear that a decision will have legal effect? (R v Burkett)
Section 31(6) =
“Where the High Court considers that there has been undue delay in making an application for judicial
review, the court may refuse to grant—
(a) leave for the making of the application; or
(b) any relief sought on the application,
If it considers that the granting of the relief sought would be likely to cause substantial hardship to, or
substantially prejudice the rights of, any person or would be detrimental to good administration.”
Application to Extend = CPR 3.1 (2)(a)
Courts recognise public law claims are unlike ordinary civil litigation
1. Strict time limit is required (R v Chartered Accountants)
Time limit may vary pursuant to CPR 3.1 (2)(a)
- Court may extend or shorten time for compliance with any rule, practice direction or Court
Order...
This will require applicants to show:
1. Reasonable explanation for delay.
2. Pursuant to section 31(6) of the Senior Courts Act 1981, that extending the time limit
will not:
a. Cause substantial hardship, or
b. Cause substantial prejudice, or
c. Be detrimental to good administration.
Refused delay = R v Secretary of State for Health (fault of lawyer)
Accepted delay =
R v World Development Movement (became aware late but acted quick)
R v Rochdale (tried other remedies before)
R v Ruddock (raised general public importance)
What if the delay is caused by needing to get legal aid?
In past = sufficient justification R v Jackson 1985
Now = not really R (Kigen) v Secretary of State for Home Department (2015)
, Procedural Fairness
• At common law before 1994, decisions were considered fair if they complied with
the ‘rule of natural justice’ expressed in their Latin format as audi alteram partem
(hear the other side) and nemo judex in sua causa esse (no one should be judged in
their own cause/ interest).
• The ‘rules of natural justice’ ensured that people adversely affected by decisions
would know about the decision and be able to participate in the decision, which
entailed prior notice of the decision and an opportunity to state their case and
influence the outcome of the decision of an unbiased decision maker.
• The requirements of fairness as demanded by the ‘rules of natural justice’ remain
in place post-apartheid, as they are protected by the right to just administrative
action in S33 of the Constitution and PAJA.
• The requirements of fairness are now more generally applied than under the
common law.
o At common law the rules of procedural fairness were applied in a
restrictedmanner.
o The rule against bias was in judicial/ quasi-judicial contexts, and not to
other types of administrative conduct.
o Audi alteram partem was principally applied to cases where someone was
deprived of a right, rather than cases concerning a mere applicant, and
also only to judicial/ quasi-judicial conduct.
• Under the Constitution and PAJA, the requirements of fairness apply to all
administrative conduct, and sometimes apply where the exercise of public power
does not amount to AA, ITO the principle of legality.
• Post-apartheid procedural fairness standards are important because these values
serves to uphold the principles and values that underpin our Constitution
(accountability, responsiveness and openness).
• The problem with procedural fairness standards is that they take time and
resources to uphold and fulfil, possibly to the extent of causing administrative
paralysis at the expense of efficiency.
o For this reason what fairness demands will depends on the circumstances
of each case.
- Procedural Fairness in the Constitutional Era
• In a break from the restrictive application of procedural fairness standards of the
apartheid past, S33 of the Constitution demands all administrative decisions are
subject to procedural fairness standards.
• Where the exercise of public power amounts to AA, S33 provides that such
power must be procedurally fair.
• S3 and S4 of PAJA give greater detail on the content of what fairness demands.
• Where empowering legislation imposes specific procedural fairness standards,
and those standards fall short of what PAJA demands, the empowering
legislationmust be read with PAJA.
• When AA is taken in a manner that does not comply with the standards imposed
by S3 and S4, or when it falls foul against of the rule against bias, the action will
be reviewable ITO S6(2) of PAJA, and could be set aside ITO S8 of PAJA.
