swarb.co.uk - law index
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Judicial Review - From: 1991 To: 1991
This page lists 8 cases, and was prepared on 08 August 2015.
ÂRegina -v- Secretary of State for Education and Science, ex parte Avon County Council [1991] 1 QB 558
1991
CA
Glidewell LJ, Taylor LJ, Sir George Waller
Litigation Practice, Judicial Review
The court was asked to order a stay on implementing a decision taken by the respondent. Held: A "stay of proceedings" in the context of applications for judicial review embraced not only judicial or quasi-judicial proceedings but also extended to decisions of the Secretary of State and the process by which such decisions had been reached, including the decision itself. A distinction was to be made between civil litigation, where an injunction might be ordered at the suit of one party against the other, and judicial review, where the decision-maker is not in any true sense an opposing party and where the order that the decision should not take effect until the challenge had been determined is correctly described as a stay.
Glidewell LJ said: "A stay is an order that the judicial proceeding or administrative decision which is the subject of challenge should not continue or take effect until the judicial review challenge is determined. It is available as a remedy against all public bodies against whom leave has been granted, including the Crown in the form of a government department or minister." The language of the rule is wide enough to enable the court to impose a stay on "the process by which the decision challenged has been reached, including the decision itself".
However, the availability of an expedited hearing of the application for judicial review made it unnecessary to order a stay: "We decided that the court has such jurisdiction. However, when it became clear to us that an early hearing of the substantive application could be arranged, we considered that a stay was unnecessary, and declined to grant a stay."
Glidewell LJ said also: "Today, many applications for judicial review are for orders of certiorari to quash decisions of decision-making bodies other than courts, including government ministers, local authorities and other bodies whose decisions are susceptible to judicial review. Thus the phrase "a stay of the proceedings" in relation to such bodies must mean a "stay of the process by which the decision challenged has been reached, including the decision itself."
Order 53 R3(10)(a)
1 Citers
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Regina -v- Lord Chancellor, ex parte Nangle [1991] ICR 743; [1992] 1 All ER 897
1991
CA
Employment, Contract, Judicial Review
The applicant was a Civil Servant seeking judicial review of the Department's decision to discipline him. The issue was whether he had a contract of employment or merely a relationship with the Crown, regulated under its prerogative powers. There were a number of documents which, together, comprised Mr Nangle's appointment. There was a letter of appointment which cross referred to other documents which either were enclosed with the letter or were readily available elsewhere. Held: The question whether there was an intention to create legal relations had to be ascertained objectively, and where the terms of the relationship are to be derived solely from the documents, its answer depends upon the construction of those documents: "[I]n our judgment, that the question whether there is an intention to create legal relations is to be ascertained objectively, and where the terms of the relationship are, as here, to be derived solely from the documents, depends upon the construction of those documents. It is possible for a party to believe mistakenly that he is contractually bound to another when in fact he is not; and conversely to believe that he is not when he is. His belief is immaterial. While this remains a subjective belief uncommunicated to the other party, this is plainly correct. But where such a belief is expressed in the documents it must be a question of construction of the documents as a whole what effect should be given to such a statement."
Civil servants enter into legal relations with the Crown in the form of contracts of employment: "In our judgment the use of the word "appointment" is neutral and certainly does not negative an intention to create legal relations. Many contractual relationships of employer and employee are described as appointments".
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 Regina -v- Secretary of State for the Home Department ex parte Cheblak; CA 1991 - [1991] 1 WLR 890
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 Regina -v- Swale Borough Council, ex parte Royal Society for the Protection of Birds; 1991 - [1991] 1 PLR 6
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Regina -v- Secretary of State for the Environment ex parte Islington London Borough Council [1991] CAT 1991/761
1991
CA
Dillon LJ
Judicial Review
Dillon LJ said as to practice within judicial review proceedings: "The . . argument is stated to have been that an applicant is not entitled to go behind an affidavit in order to seek to ascertain whether it is correct or not unless there is some material available outside that contained in the affidavit to suggest that in some material respect the affidavit is not accurate. Without some prima facie case for suggesting that the affidavit is in some respects incorrect it is improper to allow discovery of documents, the only purpose of which would be to act as a challenge to the accuracy of the affidavit. With that I would, in general, agree – and indeed the decision binds us. But I would add the qualification that if the affidavit only deals partially, and not sufficiently adequately, with an issue it may be appropriate to order discovery to supplement the affidavit, rather than to challenge its accuracy. That must depend on the nature of the issue."
McCowan LJ: "The second matter which emerges from the authorities is that unless the applicant in judicial review is in a position to assert that the evidence relied on by a minister is false, or at least inaccurate, it is inappropriate to grant discovery in order to allow the applicant to check the accuracy of the evidence in question."
1 Citers
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 Regina -v- Secretary of State for the Home Department ex parte Brind; HL 7-Feb-1991 - [1991] 1 AC 696; [1991] 2 WLR 588; [1991] UKHL 4; [1991] 1 All ER 720
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Regina -v- Secretary of State for the Environment ex parte Islington London Borough Council [1991] CAT 1991/761.
19 Jul 1991
CA
Dillon LJ, McCowan LJ
Judicial Review
The court considered the proper range within which challenges to affidavit evidence given in judicial reviw proceedings should be kept. Dillon LJ said: "The … argument is stated to have been that an applicant is not entitled to go behind an affidavit in order to seek to ascertain whether it is correct or not unless there is some material available outside that contained in the affidavit to suggest that in some material respect the affidavit is not accurate. Without some prima facie case for suggesting that the affidavit is in some respects incorrect it is improper to allow discovery of documents, the only purpose of which would be to act as a challenge to the accuracy of the affidavit. With that I would, in general, agree – and indeed the decision binds us. But I would add the qualification that if the affidavit only deals partially, and not sufficiently adequately, with an issue it may be appropriate to order discovery to supplement the affidavit, rather than to challenge its accuracy. That must depend on the nature of the issue."
McCowan LJ: "The second matter which emerges from the authorities is that unless the applicant in judicial review is in a position to assert that the evidence relied on by a minister is false, or at least inaccurate, it is inappropriate to grant discovery in order to allow the applicant to check the accuracy of the evidence in question."
1 Citers
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 Regina -v- Independent Television Commission, ex parte TV Northern Ireland Limited; CA 30-Dec-1991 - [1991] TLR 606; [1996] JR 60; Times, 30 December 1991
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