swarb.co.uk - law index
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Judicial Review - From: 1985 To: 1989
This page lists 29 cases, and was prepared on 08 August 2015.
in re Smalley; HL 1985 - [1985] 1 AC 623
Bone -v- Mental Health Review Tribunal [1985] 3 All ER 330
1985
Nolan J
Administrative, Judicial Review
Review was sought of a decision of the Mental Health Tribunal. Held: In the specific case of Mental Health Review Tribunals, reasons for decisions must be proper, adequate and intelligible, and dealing with the substantial points raised. Judicial review was preferable to the power of a mental health review tribunal to state a case for the opinion of the High Court.
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Wandsworth London Borough Council -v- Winder [1985] AC 461; [1984] UKHL 2; [1984] 3 All ER 83; [1984] 3 WLR 563
1985
HL
Lord Fraser of Tullybelton
Local Government, Judicial Review, Housing
Rent demands were made by a local authority landlord on one of its tenants. The local authority, using its powers under the Act, resolved to increase rents generally. The tenant refused to pay the increased element of the rent. He argued that the resolutions and notices of increase were ultra vires and void, on the grounds that they were Wednesbury unreasonable, and counterclaiming for a declaration to that effect. The tenant proposed adducing some evidence to support his case of unreasonableness. The local authority sought to strike out the defence and counterclaim as an abuse of process, on the grounds that the tenant should be debarred from challenging the conduct of the local authority other than by application for judicial review under RSC, Ord 53. Held: Mr Winder was entitled as of right to challenge the local authority's decision by way of defence in the proceedings which it had brought against him. The decision was based on "the ordinary rights of private citizens to defend themselves against unfounded claims."
As a matter of construction of the relevant legislation, those rights had not been swept away by the procedural reforms introducing the new RSC Ord 53. Where the issue of a private law right depending on a prior public law decision is raised as a defence to a claim, then the point does not have to be dealt with by judicial review.
Lord Fraser of Tullybelton said: "It would in my opinion be a very strange use of language to describe the respondent's behaviour in relation to this litigation as an abuse or misuse by him of the process of the court. He did not select the procedure to be adopted. He is merely seeking to defend proceedings brought against him by the appellants. In so doing he is seeking only to exercise the ordinary right of any individual to defend an action against him on the ground that he is not liable for the whole sum claimed by the plaintiff. Moreover he puts forward his defence as a matter of right, whereas in an application for judicial review, success would require an exercise of the court's discretion in his favour. Apart from the provisions of Order 53 and section 31 of the Supreme Court Act 1981, he would certainly be entitled to defend the action on the ground that the plaintiff's claim arises from a resolution which (on his view) is invalid: see for example Cannock Chase District Council v. Kelly [1978] 1 WLR 1, which was decided in July 1977, a few months before Order 53 came into force (as it did in December 1977). I find it impossible to accept that the right to challenge the decision of a local authority in course of defending an action for non-payment can have been swept away by Order 53, which was directed to introducing a procedural reform. As my noble and learned friend Lord Scarman said in Reg. v. Inland Revenue Commissioners, Ex parte Federation of Self Employed and Small Businesses Ltd. [1982] AC 617, 647G "The new R.S.C., Ord. 53 is a procedural reform of great importance in the field of public law, but it does not - indeed, cannot - either extend or diminish the substantive law. Its function is limited to ensuring 'ubi jus, ibi remedium."' Lord Wilberforce spoke to the same effect at p. 631A. Nor, in my opinion, did section 31 of the Supreme Court Act 1981 which refers only to "an application" for judicial review have the effect of limiting the rights of a defendant sub silentio."
Housing Act 1957
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[ Bailii ]
Regina -v- Broadcasting Complaints Commission, ex parte Owen [1985] QB 1153 CA
1985
CA
May LJ
Media, Judicial Review
The BBC is a creation of the Crown through the grant of a Charter in the exercise of the Royal Prerogative, and it exercises its functions under agreement with and licences from the Government. The court expressly declined to express a view on the question of its susceptibility to judicial review.
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Ex parte Worth [1985] STC 564
1985
Webster J
Judicial Review
The giving of leave to bring a judicial review case did not equate to an extension of time to make the application. The judge's task on the ex parte application was to do no more than to decide that there was an arguable case for judicial review and not to "determine any issue finally in favour of the applicant." and "In short I conclude, while recognising that the conclusion does not follow inevitably from the express wording of the rules in the Act (sic) that the granting of leave to move does not preclude the respondent from objecting that the application has been made out of time."
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Regina -v- Secretary of State for the Environment, ex parte Nottinghamshire County Council; HL 12-Dec-1985 - [1986] AC 240; [1985] UKHL 8
Regina -v- Take-over Panel, ex parte Datafin PLC; CA 1986 - [1987] 1 QB 815; [1986] 2 All ER 257; [1986] 1 WLR 763; (1986) 2 BCC 99086; [1986] EWCA Civ 8
Jones -v- Solomon Civil Appeal No 11 of 1986
1986
McMillan JA
Commonwealth, Judicial Review
(Court of Appeal of Trinidad and Tobago) Judicial review proceedings do not involve the full trial process, and are therefore summary.
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Pulhofer -v- Hillingdon London Borough Council [1986] 1 AC 484
1986
HL
Lord Brightman, Lords Keith, Roskill, Brandon and Mackay
Judicial Review, Housing
The House considered the duty of a local housing authority towards the homeless, the imposition of which duty depended on the authority's conclusion on various factual questions defined by the statute. Held: There can be limits on the circumstances in which a court can intervene on judicial review. "The plight of the homeless is a desperate one, and the plight of the applicants in the present case commands the deepest sympathy. But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the activities of local authorities under the Act save in the exceptional case. . . . Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, is acting perversely."
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Regina -v- Hallstrom and another, ex parte W (No 2) [1986] QB 1090
1986
McCullough J
Health, Judicial Review
A judicial review application by a mental patient, requires the permission of a High Court judge: "There is ... a canon of construction that Parliament is presumed not to enact legislation which interferes with the liberty of the subject without making it clear that this was its intention."
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Regina -v- Lancashire County Council ex parte Huddleston; CA 1986 - [1986] 2 All ER 941
Regina -v- Hillingdon London Borough Council Ex parte Puhlhofer; HL 2-Jan-1986 - [1986] AC 484; [1986] UKHL 1
Regina -v- Monopolies and Mergers Commission, ex parte Argyll Group plc; CA 14-Mar-1986 - [1986] 1 WLR 763; [1987] QB 815; (1986) 2 BCC 99086; [1986] EWCA Civ 8; [1986] 2 All ER 257
Regina -v- Secretary of State for the Home Department ex parte Ruddock; QBD 1987 - [1987] 1 WLR 1482; [1987] 2 All ER 518
Carr -v- Atkins [1987] 3 All ER 684; [1987] 3 WLR 529; [1987] QB 963
1987
CA
Sir John Donaldson MR, Stephen Brown and Croom-Johnson LJJ
Criminal Practice, Judicial Review
The police had applied to a judge for an order under the 1984 Act requiring the applicant, a suspect in a fraud investigation, to produce documents falling within the definition of "special procedure documents" under the Act. The applicants sought leave to appeal from a refusal of an order for judicial review of the decision not to disclose to them 'special procedure material'. Held: The Court of Appeal had no jurisdiction to hear an appeal from the Divisional Court's refusal to quash an order of the Crown Court for the production of certain documents under section 9 of the Criminal Evidence Act 1984, in criminal proceedings.
Sir John Donaldson MR said: "One thing is quite clear. The nature of an order made or refused in judicial review proceedings must depend not upon that order but upon the order that is sought to be reviewed. What was being reviewed in this case was an order under the Police and Criminal Evidence Act 1984."
In this case: "It is to my mind clear beyond argument that the order which was made in this case was made in a criminal context, but it is right to note . . that there are no proceedings in existence . .I have not been able to find out whether this Act could or would be used where criminal proceedings have begun, but it does not really matter . . It is sufficient to note that no criminal proceedings have been begun here and, indeed, in most cases there is no doubt that orders would be sought under this Act where a decision had not yet been reached whether or not to prosecute. It is essentially a statutory provision in aid of a criminal investigation designed, if the evidence will stand it, to lead to a criminal prosecution. But unless it is to be said that an order under the Act is either never or very rarely one which is by its nature a criminal cause or matter merely because of the stage at which the order is made, then the fact that there are no criminal proceedings does not, in my judgment, matter. That fact stems purely from the nature of the Act and the statutory provisions and does not affect the criminal characters of the proceedings."
Police and Criminal Evidence Act 1984 14
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Regina -v- London Residuary Body, ex parte Inner London Education Authority Times, 03 July 1987
3 Jul 1987
CA
Watkins LJ
Judicial Review
Mistake as a ground for judicial review. The court gave three classifications of a fact at issue: "Of course, a mistake of fact can vitiate a decision as where the fact is a condition precedent to an exercise of jurisdiction, or where the fact was the only evidential basis for a decision or where the fact was as to a matter which expressly or impliedly had to be taken into account. Outside those categories we do not accept that a decision can be flawed in this court, which is not an appellate tribunal, upon the ground of a mistake of fact."
British-American Tobacco Company Ltd and R J Reynolds Industries Inc -v- Commission of the European Communities Joined Cases 142 and 156/84; C-142/84
17 Nov 1987
ECJ
European, Company, Judicial Review, Commercial
Europa An investigation carried out by the commission in fulfilment of its duty to ensure that the rules on competition are observed does not constitute adversary proceedings between companies which have submitted an application under article 3 of regulation no 17/62, having shown that they have a legitimate interest in seeking an end to the alleged infringement, and companies which are the object of the investigation. Although complainants must be given the opportunity to defend their legitimate interests during the administrative proceedings and the commission must consider all the matters of fact and of law which they bring to its attention, their procedural rights are not as far-reaching as the right to a fair hearing of the companies which are the object of the commission' s investigation, and the limits of such rights are reached where they begin to interfere with those companies' rights to a fair hearing. The obligation of professional secrecy laid down in article 214 of the treaty and article 20*(2) of regulation no 17/62 is mitigated in regard to complainants, but they may not in any circumstances be provided with documents containing business secrets. The legitimate interests of complainants are fully protected where they are informed of the outcome of the confidential negotiations between the commission and the companies which are the object of its investigation with a view to bringing the agreements or practices complained of into conformity with the rules laid down in the treaty; the right of the commission and those companies to enter into confidential negotiations would be imperilled if the complainants were given the right to attend such negotiations or be kept informed of the progress made in order to submit their observations on the proposals put forward by one party or the other.
2. Where the acquisition of shares in a competing company is the subject-matter of agreements entered into by companies which remain independent after the entry into force of the agreements, the issue must first be examined from the point of view of article 85 of the treaty. Although the acquisition by one company of an equity interest in a competitor does not in itself constitute conduct restricting competition, such an acquisition may nevertheless serve as an instrument for influencing the commercial conduct of the companies in question so as to restrict or distort competition on the market on which they carry on business. That would be true in particular where, by the acquisition of a shareholding or through subsidiary clauses in the agreement, the investing company obtains legal or de facto control of the commercial conduct of the other company or where the agreement provides for commercial cooperation between the companies or creates a structure likely to be used for such cooperation, or where the agreement gives the investing company the possibility of reinforcing its position at a later stage and taking effective control of the other company. Every agreement must be assessed in its economic context and in particular in the light of the situation on the relevant market. Where the companies concerned are multinational corporations which carry on business on a worldwide scale, their relationships outside the community cannot be ignored, and it is necessary in particular to consider the possibility that the agreement in question may be part of a policy of global cooperation between them. The commission must exercise particular vigilance in the case of a stagnant and oligopolistic market, such as that for cigarettes.
3. Although as a general rule the court undertakes a comprehensive review of the question whether or not the conditions for the application of article 85*(1) of the treaty are met, its review of the commission' s appraisals of complex economic matters is necessarily limited to verifying whether the relevant rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of appraisal or a misuse of powers.
4. The acquisition by one company of a shareholding in a competing company can constitute an abuse of a dominant position within the meaning of article 86 of the treaty only where that shareholding results in effective control of the other company or at least in some influence on its commercial policy.
5. Where the commission rejects an application pursuant to article 3 of regulation no 17/62, it need only state the reasons for which it did not consider it possible to hold that an infringement of the rules on competition had occurred, and it is not obliged to explain any differences in relation to the statement of objections, since that is a preparatory document containing assessments which are purely provisional in nature and are intended to define the scope of the administrative proceedings with regard to the companies against which they are brought, or to discuss all the matters of fact and of law which may have been dealt with during the administrative proceedings.
[ Europa ]
Rowling -v- Takaro Properties Ltd; PC 30-Nov-1987 - [1988] AC 473; [1988] 1 All ER 163; [1987] UKPC 2; [1987] UKPC 34
Sutherland District Council -v- Secretary of State for Scotland; SCS 23-Dec-1987 - Unreported, 23 December 1987
Regina -v- University of London; Ex parte Vijayatunga [1988] QB 322; [1987] 3 All ER 204; [1988] 2 WLR 106
1988
Simon Brown J
Judicial Review, Education
The court considered the powers of the Visitors to the University. Simon Brown J said: "The Visitor enjoys untrammelled jurisdiction to investigate and correct wrongs done in the administration of the internal law of a Foundation to which he is appointed: a general power to right wrongs and redress grievances and if that on occasions requires the visitor to act akin rather to an Appeal Court than to a Review Court, so be it. Indeed there may well be occasions when he could not properly act other than as an essentially appellate tribunal".
As to the nature of judicial review, he said: "Judicial review is the exercise of the court's inherent power at common law to determine whether action is lawful or not; in a word to uphold the rule of law".
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Regina -v- Civil Service Appeal Board Ex Parte Bruce [1988] ICR 649
1988
May LJ, Roch J
Employment, Judicial Review
The court recognised that there could be terms of the appointment of a civil servant which could have legal effect. May LJ said: "I think that at the present time in at least the great majority of cases involving disputes about the dismissal of an employee by his employer, the most appropriate forum for their resolution is an industrial tribunal (now of course an employment tribunal). The Courts should not be astute to hold that any particular dispute is appropriate for consideration under the judicial review procedure."
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Leech -v- Governor of Parkhurst Prison; HL 1988 - [1988] AC 533; [1988] UKHL 16; [1988] 1 All ER 485; [1988] 2 WLR 290
Avon District Council -v- Buscott; 1988 - [1988] QB 656
Nichol -v- Gateshead Metropolitan Borough Council (1988) 87 LGR 435
1988
CA
Taylor LJ, Connor LJ
Judicial Review, Local Government
The court described how it was to exercise any discretion it had to give relief on an application for judicial review: "The court has an overall discretion as to whether to grant relief or not. In considering how that discretion should be exercised, the court is entitled to have regard to such matters as the following: (1) The nature and importance of the flaw in the challenged decision. (2) The conduct of the applicant. (3) The effect on administration of granting relief." It permissible for an authority to have a preferred option (Connor LJ).
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Regina -v- Foreign Secretary ex parte Everett; CA 1989 - [1989] 1 QB 811; [1988] EWCA Civ 7; [1989] QB 811; [1989] 2 WLR 224
Regina -v- Kensington and Chelsea Royal London Borough Council Ex parte Hammell; CA 1989 - [1989] QB 518; [1989] 1 All ER 1202; [1989] 2 WLR 90; [1989] Fam Law 430
Al-Mehdawi -v- Secretary of State for the Home Department [1989] 3 WLR 1294; [1989] 3 All ER 843; [1990] 1 AC 876
1989
HL
Lord Bridge
Judicial Review, Immigration, Natural Justice
The applicant, a student had overstayed his leave. Through his solicitor's negligence, he lost his appeal against deportation. He sought judicial review of that decision. Held: Judgment obtained in a party's absence due entirely to the fault of that party or his advisor was not one obtained in breach of the rules of natural justice for the purpose of judicial review. The loss of his right to be heard was not a procedural impropriety or denial of natural justice. Nor was he entitled to certiorari. In the public law context of removal from the jurisdiction of an alien, a litigant must answer for the failings of his legal advisers.
Lord Bridge said that any other decision would come "at the cost of opening such a wide door which would indeed seriously undermine the principle of finality in decision-making."
Immigtaion Act 1971 21
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Regina -v- Chief Constable of Avon and Somerset, ex parte Robinson; 1989 - [1989] 1 WLR 793
Casey -v- Edinburgh Airport Ltd Unreported, 23 February 1989
23 Feb 1989
SCS
Lord Morison
Scotland, Judicial Review
There was a challenge to decisions taken by the airport authority, under a bye-law, to refuse permits to the applicant taxi operators. During the hearing, the applicants sought to challenge the validity of the bye-law itself. Held: Lord Morison refused to consider such a challenge in the absence of intimation to the taxi operators who had been granted permits under the contested bye-law. He said: "No intimation of the petition has been made to these persons, since in its present form it does not affect their interest . . It seems to me to be clear that the argument sought to be presented by the petitioners cannot be determined in the absence of intimation to other taxi operators who have an interest to uphold the validity of the permission granted to them."
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