s.84 Criminal Justice and Courts Act 2015
1. What does it do?
s.84 Criminal Justice and Courts Act 2015:
The High Court –
(a) Must refuse to grant relief on an application for judicial review, and
(b) May not make an award under subsection (4) on such an application,
If it appears to the court to be highly likely that the outcome for the applicant
would not have been substantially different if the conduct complained of
had not occurred,
Exception = the Court may disregard the requirement if it considers
that it is appropriate to do so for reasons of exceptional public
interest.
Not completely novel provision
Before this was created, the courts did recognise the Simplex principle –
would see ground for refusing relief if the inevitability of the outcome was
the same.
BUT – changes principle:
Removes discretionary element – makes it a duty.
Lowers the threshold – not inevitably the same, but highly likely.
2. Reasons for the development:
2015 Act followed a process of review by the then Government led by Minister of
Justice into JR:
Concerns about growth in volume of JRs lodged and use of legal aid (protect
taxpayer).
Initially Gov wanted to require a direct interest (protecting private rights
approach) – felt sufficient interest test for standing had been applied less
restrictively by courts over time and that wide approach is “vulnerable to
misuse by those who wish to use judicial review to seek publicity or
otherwise to hinder the process of proper decision-making.”
Massive pushback.
Not many representative standing cases tend to be brought (as a
percentage of total applications).
Gov figures indicate that these claims tend to be more successful than
on average – these are meritious claims – a change would shield the
executive from challenge.
May cause multiple individuals to bring challenges where, under the
current test, a single challenge by an expert group would have been
brought.
Therefore, Gov changed their stance to limiting the pursuit of weak claims instead.
3. Concerns:
a. Only confined to JR cases:
Doesn’t apply where HC dealing with statutory appeals on points of law.
Resulted in peculiar dichotomy especially in planning context.
If refused planning permission, you have right of appeal under
legislation to seek appeal in front of HC on points of law – Simplex
test continues to apply.
If third party wants to object to planning permission, no right to
appeal – so go through JR and s.84 applies.
b. Doesn’t sit very well with procedural fairness cases:
Connor Crummey:
Provides example of an individual being subjected to an important
disciplinary sanction and court finds that they haven’t been given the
right to make representations.
1. What does it do?
s.84 Criminal Justice and Courts Act 2015:
The High Court –
(a) Must refuse to grant relief on an application for judicial review, and
(b) May not make an award under subsection (4) on such an application,
If it appears to the court to be highly likely that the outcome for the applicant
would not have been substantially different if the conduct complained of
had not occurred,
Exception = the Court may disregard the requirement if it considers
that it is appropriate to do so for reasons of exceptional public
interest.
Not completely novel provision
Before this was created, the courts did recognise the Simplex principle –
would see ground for refusing relief if the inevitability of the outcome was
the same.
BUT – changes principle:
Removes discretionary element – makes it a duty.
Lowers the threshold – not inevitably the same, but highly likely.
2. Reasons for the development:
2015 Act followed a process of review by the then Government led by Minister of
Justice into JR:
Concerns about growth in volume of JRs lodged and use of legal aid (protect
taxpayer).
Initially Gov wanted to require a direct interest (protecting private rights
approach) – felt sufficient interest test for standing had been applied less
restrictively by courts over time and that wide approach is “vulnerable to
misuse by those who wish to use judicial review to seek publicity or
otherwise to hinder the process of proper decision-making.”
Massive pushback.
Not many representative standing cases tend to be brought (as a
percentage of total applications).
Gov figures indicate that these claims tend to be more successful than
on average – these are meritious claims – a change would shield the
executive from challenge.
May cause multiple individuals to bring challenges where, under the
current test, a single challenge by an expert group would have been
brought.
Therefore, Gov changed their stance to limiting the pursuit of weak claims instead.
3. Concerns:
a. Only confined to JR cases:
Doesn’t apply where HC dealing with statutory appeals on points of law.
Resulted in peculiar dichotomy especially in planning context.
If refused planning permission, you have right of appeal under
legislation to seek appeal in front of HC on points of law – Simplex
test continues to apply.
If third party wants to object to planning permission, no right to
appeal – so go through JR and s.84 applies.
b. Doesn’t sit very well with procedural fairness cases:
Connor Crummey:
Provides example of an individual being subjected to an important
disciplinary sanction and court finds that they haven’t been given the
right to make representations.
