Judicial review handbook / by Michael Fordham QC, Blackstone Chambers, London; foreword by the Rt Hon The Lord Woolf, Former Lord Chief Justice.

Includes bibliographical references and index.

A.THE NATURE OF JUDICIAL REVIEW: keys to understanding what the Court is doing
P1.A constitutional guarantee. Judicial review is the rule of law in action: a fundamental and inalienable constitutional protection
1.1.Constitutional supervision of public authorities
1.2.Judicial review and the rule of law
1.3.Judicial review's constitutional inalienability
P2.Supervisory jurisdiction. Judicial review is a well-established supervisory role by the Court over public bodies
2.1.A supervisory jurisdiction
2.2.Importance and range of subject-matter
2.3.Judicial review in other Courts and Tribunals
2.4.The Administrative Court in action: some special features
2.5.Procedural discipline and firm case-management
2.6.Basic steps in a judicial review case
P3.Impact. A successful claim does not necessarily guarantee a favourable ultimate outcome, nor a wider knock-on effect
3.1.Remittal and repeatability
Contents note continued: 3.2.Hollow/​counterproductive victories
3.3.Judicial review as a monetary springboard
3.4.Securing assurances/​provoking comment
3.5.Wider impact/​knock-on effect
P4.Materiality. A claim may fail if lacking substance, as where non-material, non-prejudicial, futile, academic or premature
4.1.Practical substance and judicial review
4.2.Materiality/​material flaw
4.3.Lack of prejudice
4.4.Futility
4.5.Dangers of materiality, prejudice and futility
4.6.Hypothetical/​academic issues: utility
4.7.Prematurity
P5.Targets. A wide range of measures, acts, decisions, policies and omissions can be the subject of a judicial review challenge
5.1.Judicial review and "decisions"
5.2.Spectrum of possible targets
5.3.Multiple targets/​target-selection
P6.Power sources. Public bodies' powers and duties can arise under or by reference to EU and domestic legislation, common law or prerogative, policy guidance or international law
Contents note continued: 6.1.Powers/​duties: basic sources
6.2.Policy guidance
6.3.International law
P7.Constitutional fundamentals. Core common law principles can constitute fundamentals of the UK's unwritten constitution
7.1.Legislative supremacy
7.2.Rule of law/​separation of powers
7.3.Access to justice
7.4.Constitutional/​common law rights/​duties
7.5.Basic fairness/​natural justice
7.6.Basic reasonableness
P8.EU law. Domestic statutes, rules and decisions must be compatible with applicable EU legislation and legal principle
8.1.EU law supremacy
8.2.EU Treaty rights
8.3.Judicial review for EU-incompatibility
8.4.Reference to the CJEU
8.5.EU law damages/​reparation
8.6.EU Charter of Fundamental Rights
P9.The HRA. Domestic legislation must be read, and public authorities must act, compatibly with HRA: ECHR rights
9.1.HRA: key features and themes
9.2.Codified Convention rights
9.3.HRA s.2: relationship with Strasbourg
Contents note continued: 9.4.HRA s.3: compatible interpretation
9.5.HRA s.6: compatible public authority action
9.6.HRA just satisfaction
P10.Cooperation &​ candour. The Court will expect from all parties cooperative behaviour and candid disclosure
10.1.A cooperative enterprise
10.2.ADR/​mediation
10.3.Claimant's duty of candour
10.4.Defendant/​interested party's duty of candour
P11.Precedent &​ authority. Judicial precedent can bind or guide the court; academic and comparative analysis may be persuasive
11.1.Use of case-law
11.2.Academic commentary/​comparative case-law
P12.Reviewing primary legislation. Courts have restricted functions of assessing legal compatibility of Acts of Parliament
12.1.Primary legislation: disapplication under EU law
12.2.HRA s.4: declaration of incompatibility
12.3.Judicial review of primary legislation at common law
Contents note continued: P13.Restraint. Courts adopt a primary self-restraint, preserving for public bodies a latitude for judgment and discretion
13.1."Soft" review: reasonableness
13.2.Restraint and factual questions
13.3.Restraint and discretion/​judgment
13.4.Restraint and expertise
13.5.Judicial restraint in action
13.6.Protecting public authorities
13.7.Review from the decision-maker's point of view
P14.Balancing. Judicial review principles are a careful evolving equilibrium serving the dual imperatives of vigilance and restraint
14.1.Judicial review and striking a balance
14.2.Striking a balance: grounds for judicial review
14.3.Striking a balance: nothing personal
14.4.Convenience and floodgates
P15.The forbidden method. Judges will not intervene as if matters for the public body's judgment were for the Court's judgment
15.1."Soft" review: the forbidden substitutionary approach
15.2."Not an appeal"
Contents note continued: 15.3."Legality not correctness"
15.4."Not the merits"
15.5."Court does not substitute its own judgment"
P16.Hard-edged questions. There are certain matters which the Court considers afresh for itself, imposing its own judgment
16.1.Hard-edged review: correctness
16.2.Precedent fact
16.3.Error of law as hard-edged review
16.4.Interpretation as a hard-edged question
16.5.Procedural fairness as hard-edged review
16.6.Hard-edged review: further matters
P17.Evidence and fact. Judicial review is generally conducted on written evidence and regarded as an unsuitable forum for resolving factual disputes, though this can be appropriate and necessary
17.1.Judicial review evidence
17.2.Fresh evidence in judicial review
17.3.Judicial review and factual disputes
17.4.Disclosure, further information and cross-examination
P18.Costs. Generally, the loser must pay the winner's costs
18.1.Costs: general matters
Contents note continued: 18.2.Costs and the permission stage
18.3.Costs and the public interest
18.4.Costs and discontinuance/​early disposal
18.5.Special costs responses
P19.Making the claim. Where pre-claim correspondence fails, claims are to be made and acknowledged in the prescribed way
19.1.Pre-claim steps
19.2.Making the claim
19.3.Acknowledging the claim
P20.Interim remedies. The Court can make orders securing a particular state of affairs pending final resolution of the claim
20.1.Interim remedies
20.2.The balance of convenience
P21.Permission. The claimant must obtain permission for judicial review, by prompt and candid papers disclosing an arguable case
21.1.Granting or refusing permission
21.2.Case-management at the permission stage
P22.Substantive hearing. At the hearing the Court decides whether there are grounds for intervening and whether to grant a remedy
22.1.Post-permission/​pre-hearing steps
Contents note continued: 22.2.Third party participation
22.3.Disposal without a hearing
22.4.The substantive hearing
P23.Appeal. An appeal lies from the Administrative Court's decisions (except the grant of permission)
23.1.Permission-stage appeals
23.2.Substantive appeals
23.3.Nature of the Court of Appeal's approach
P24.Remedies. The Court has discretionary power to quash, mandate, prevent and clarify
24.1.The remedial toolkit
24.2.The declaration
24.3.Remedy as a discretionary matter
24.4.The remedies in action
P25.Monetary remedies. Judicial review embraces damages, debt and restitution, HRA "just satisfaction" and EU reparation; but a broader financial response to maladministration awaits development
25.1.Availability of debt, restitution and damages
25.2.Recognised species of monetary claim
25.3.Public law reparation: no damages for maladministration
Contents note continued: B.PARAMETERS OF JUDICIAL REVIEW: further dominant themes shaping the law and practice
P26.Delay. Claims must be prompt (3 months in an EU case); undue delay can be fatal to permission or (if prejudicial) a remedy
26.1.The approach to delay
26.2.Promptness and the running of time
26.3.Good reason to extend time
26.4.Hardship, prejudice and detriment
P27.Public/​private. Judicial review is the (normally non-exclusive) application of "public law" principles to "public" functions
27.1.The public/​private distinction
27.2.Public law principles outside CPR 54
27.3.Procedural exclusivity/​abuse of process
P28.Ouster. Head-on statutory exclusion of judicial review is theoretically possible but constitutionally dubious
28.1.Ousting judicial review: a hostile climate
28.2.Time-limit ousters
P29.Interpretation. Discerning the true meaning of legislative and other relevant sources is vital to effective judicial review
Contents note continued: 29.1.The purposive approach to interpretation
29.2.Legislative purpose and judicial review
29.3.Statutory interpretation
29.4.Using Hansard
29.5.Interpreting other sources
P30.Function. It is essential to understand the role and responsibilities of the decision-maker under review
30.1.Understanding the defendant's function
30.2.Traditional functional labels
30.3.The judicial/​administrative distinction
30.4.Other aspects of function
P31.Context. Context being everything, the Court will always respond to the nature and circumstances of the individual case
31.1.Contextualism
31.2.Circumstances
31.3.Characteristics and conduct of the claimant
31.4.Claimant's failure to complain/​raise the concern at the time
31.5."Flexi-principles"
P32.Modified review. Matters may involve part-availability of judicial review; or restricted or enhanced grounds
32.1.Part-reviewability of Crown Courts
Contents note continued: 32.2.Judicial review of decisions regarding legal process
32.3.Anxious scrutiny
32.4.Other modified review situations
P33.Flux. Judicial review is dynamic: new faiths emerge, old ones decay; the general trend being towards empowering the Court
33.1.The developing law
33.2.Lessons from the past
33.3."Two-stage" approaches to legal development
33.4.Next steps in public law: forecasting
P34.Reviewability/​non-reviewability. Judicial review applies to the exercise of "public" functions, with few forbidden areas
34.1.Surveying the field
34.2.Principles of reviewability
34.3.Conquests of reviewability
34.4.Special functions and immunity from review
34.5.Private law matters
P35.Principle of legality. Public power may not be exercised to abrogate fundamental common law values, at least unless abrogation is required or empowered by clear primary legislation
35.1.The principle of legality
Contents note continued: 35.2.Protected values under the principle of legality
35.3.International law and the principle of legality
35.4.The principle of legality and statutorily-endorsed abrogation
P36.Alternative remedy. Judicial review is a last resort and generally inappropriate where suitable alternative safeguards exist
36.1.General effect of other safeguards
36.2.Exclusive alternative remedy
36.3.Alternative remedy and discretion/​case-management
36.4.Whether action/​avenue curative of public law wrong
P37.Proportionality template. Proportionality requires State-proven appropriateness and necessity to achieve a legitimate aim
37.1.Proportionality analysis
P38.Standing. The claimant must have a sufficient interest in the subject-matter, and be a victim if relying directly on the HRA
38.1.The requirement of sufficient interest
38.2.The approach to sufficient interest
38.3.Standing at the permission/​substantive stages
Contents note continued: 38.4.Standing under the HRA: the victim test
P39.Discretion/​duty. Judicial review supervises discretionary powers entrusted to, and duties imposed on, public bodies
39.1.No unfettered powers
39.2.Discretion/​power: the essential duties
39.3.Discretion and duty in action
P40.Inalienability. Public bodies' basic powers and duties are to be respected, preserved and not compromised
40.1.Preservation of powers and duties
40.2.Inalienability and estoppel/​legitimate expectation
P41.Legitimate expectation. Promises or practices may raise expectations incapable of unfair or unreasonable dishonour
41.1.The role of legitimate expectation
41.2.Basic anatomy of a legitimate expectation
P42.Onus. It is for the judicial review claimant to establish grounds for intervention, but on many issues the public body bears the onus
42.1.Onus generally on the claimant
42.2.Onus on the defendant
Contents note continued: P43.Severance. A measure may be partially upheld if, shorn of vitiated parts, the substantial purpose and effect remain intact
43.1.Severability
P44.Nullity. In principle, any material public law wrong will vitiate the impugned act of the public body so that it is a "nullity"
44.1.Invalidity labels
44.2.Flaws constituting "nullity"
44.3.Purpose/​effect of "nullity"
C.GROUNDS FOR JUDICIAL REVIEW: public law wrongs justifying the Court's intervention
P45.Classifying grounds. Inapt for rigid categorisation, grounds fit broadly within unlawfulness, unreasonableness and unfairness
45.1.The conventional threefold division
45.2.Root concepts and unifying themes
45.3.Reviewing discretion: Wednesbury and abuse of power
45.4.Overlapping grounds and interchangeable labels
P46.Ultra vires. A body must not exceed received powers or breach duties, from higher authority, as properly interpreted
46.1.Basic meanings of ultra vires
Contents note continued: 46.2.Interpretation securing validity: reading down/​reading in
P47.Jurisdictional error. A body must understand the scope and limits of its jurisdiction
47.1.Jurisdiction/​jurisdictional error as a flexi-principle
47.2.Jurisdictional error as hard-edged review (correctness)
47.3.Error of law and jurisdictional error
P48.Error of law. A body must not make a material error of law
48.1.Error of law/​misdirection in law
48.2.Error of law: restricted categories?
P49.Error of fact. A body must not make errors of precedent fact, fundamental factual errors or findings unsupported by evidence
49.1.Precedent/​objective fact
49.2.Fundamental/​material error of fact
P50.Abdication/​fetter. A body must not surrender its function, as by: (a) acting under dictation; (b) improperly delegating its powers; or (c) operating an inflexible policy
50.1.Basic duty not to abdicate/​fetter
50.2.Acting under dictation
50.3.Improper delegation
Contents note continued: 50.4.Fetter by inflexible policy
P51.Insufficient inquiry. A body must sufficiently acquaint itself with relevant information, fairly presented and properly addressed
51.1.Duty of sufficient inquiry
51.2.Whether material fairly presented/​properly addressed
P52.Bad faith/​improper motive. A body must not act in bad faith or have an improper object or purpose
52.1.Bad faith
52.2.Improper motive
P53.Frustrating the legislative purpose. A body must act so as to promote the purpose for which the power was conferred
53.1.Duty to promote the legislative purpose
P54.Substantive unfairness. A body must not act conspicuously unfairly, nor so unfairly as to abuse its power, nor in unjustified breach of a legitimate expectation
54.1.Substantive unfairness
54.2.Unjustified breach of a substantive legitimate expectation
Contents note continued: P55.Inconsistency. A body should ensure equal treatment, certainty of approach and no legally relevant unjustified departures
55.1.Equal treatment, non-arbitrariness and certainty
55.2.Unjustified departure
55.3.Statutory equality duties
P56.Relevancy/​irrelevancy. A body must have regard to all, but to only, legally relevant considerations
56.1.The relevancy/​irrelevancy principle
56.2.Obligatory and discretionary relevance
56.3.Relevance and weight
P57.Unreasonableness. A body must not act unreasonably
57.1.The unreasonableness principle
57.2.High threshold epithets
57.3.Species of unreasonableness
57.4.Unreasonableness in action
P58.Proportionality. Certain contexts require a body's response to be appropriate and necessary to achieve a legitimate aim
58.1.Proportionality
58.2.Proportionality as part of reasonableness
58.3.Common law proportionality
Contents note continued: 58.4.Proportionality and scrutiny of evidence/​reasoning
58.5.Latitude and intensity of review
P59.HRA-violation. A body must not act incompatibly with Convention rights protected by the HRA
59.1.Testing for an HRA-violation
59.2.Article 2: life
59.3.Article 3: cruelty
59.4.Article 5: liberty
59.5.Article 6: fair-hearing
59.6.Article 8: private and family life
59.7.Article 10: expression
59.8.Article 14: non-discrimination
59.9.Article IP: property-interference
59.10.Further Convention rights and provisions
P60.Procedural unfairness. A body must adopt a fair procedure, giving those affected a fair and informed say
60.1.The basic concept of fairness
60.2.Procedural fairness as a flexi-principle
60.3.Procedural fairness: supplementing the legislative scheme
60.4.Procedural ultra vires
60.5.The basic right to be heard
60.6.Adequate consultation
60.7.The basic right to be informed
Contents note continued: 60.8.Other rights of procedural fairness
P61.Bias. A body must not have a direct interest in the outcome of a decision, or show actual bias or a real possibility of bias
61.1.Automatic disqualification
61.2.Actual bias
61.3.Apparent bias
P62.Reasons. Public Bodies are often required to give reasons, and always required to make the reasons they do give adequate
62.1.Importance of reasons
62.2.Judicial review for failure to give reasons
62.3.Adequacy of reasons
62.4.Timing of reasons
62.5.Remedy for lack/​insufficiency of reasons
P63.External wrongs. Judicial review may occasionally lie against a blameless body, for a third party wrong or external injustice
63.1.External wrongs
D.MATERIALS: key sources of rules and procedure
64.1.Senior Courts Act 1981, ss.31 &​ 31A
64.2.Civil Procedure Rules Part 54
64.3.CPR Part 54 Practice Directions 54A &​ 54D
64.4.Administrative Court Office Notes for Guidance
Contents note continued: 64.5.Judicial Review Pre-Action Protocol
64.6.Judicial Review Urgent Cases Procedure
64.7.Human Rights Act 1998
64.8.Form N461
64.9.Form N462
64.1.Form N463
64.1.List of articles.