The claimants sought to challenge decisions to restrict payments made to victims of miscarriages of justice. A discretionary scheme had been stopped, and payments of applicants’ costs had been restricted to Legal Help rates.
Held: The simple existence of a voluntary scheme could not create a legitimate expectation of its continuance. For the doctrine to be engaged so as to bind the decision-maker, the assurance must be clear and unequivocal and ‘pressing and focused’.
Laws LJ discussed the suggested need to consult: ‘Thus a public authority will not often be held bound by the law to maintain in being a policy which on reasonable grounds it has chosen to alter or abandon. Nor will the law often require such a body to involve a section of the public in its decision-making process by notice or consultation if there has been no promise or practice to that effect. There is an underlying reason for this. Public authorities typically, and central government par excellence, enjoy wide discretions which it is their duty to exercise in the public interest. They have to decide the content and the pace of change. Often they must balance different, indeed opposing, interests across a wide spectrum. Generally they must be the masters of procedure as well as substance; and as such are generally entitled to keep their own counsel. All this is involved in what Sedley LJ described (BAPIO [2007] EWCA Civ 1139) as the entitlement of central government to formulate and re-formulate policy. This entitlement – in truth, a duty – is ordinarily repugnant to any requirement to bow to another’s will, albeit in the name of a substantive legitimate expectation. It is repugnant also to an enforced obligation, in the name of a procedural legitimate expectation, to take into account and respond to the views of particular persons whom the decision-maker has not chosen to consult.’ and ‘But the court will (subject to the overriding public interest) insist on such a requirement, and enforce such an obligation, where the decision-maker’s proposed action would otherwise be so unfair as to amount to an abuse of power, by reason of the way in which it has earlier conducted itself. In the paradigm case of procedural expectations it will generally be unfair and abusive for the decision-maker to break its express promise or established practice of notice or consultation. In such a case the decision-maker’s right and duty to formulate and re-formulate policy for itself and by its chosen procedures is not affronted, for it must itself have concluded that that interest is consistent with its proffered promise or practice. In other situations – the two kinds of legitimate expectation we are now considering – something no less concrete must be found. The cases demonstrate as much. What is fair or unfair is of course notoriously sensitive to factual nuance. In applying the discipline of authority, therefore, it is as well to bear in mind the observation of Sir Thomas Bingham MR as he then was in Ex p Unilever at 690f, that ‘[t]he categories of unfairness are not closed, and precedent should act as a guide not a cage.’
Laws LJ also said: ‘Authority shows that where a substantive expectation is to run the promise or practice which is its genesis is not merely a reflection of the ordinary fact (as I have put it) that a policy with no terminal date or terminating event will continue in effect until rational grounds for its cessation arise. Rather, it must constitute a specific undertaking directed at a particular individual or group by which the relevant policy’s continuance is assured . . I will give two concrete examples from the cases. In Ex p Khan [1985] 1 All ER 40 the Home Office promulgated specific criteria for the admission of children into this country for the purpose of adoption here. The appellant sought entry for his prospective adoptive child. He relied in terms on the published criteria which he fulfilled. But he found his application blocked by a further, unannounced criterion which he did not satisfy. This court allowed his appeal.’
Judges:
Laws LJ
Citations:
[2008] EWCA Civ 755, Times 21-Jul-2008
Links:
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – Albert Court Residents Association and Others, Regina (on The Application of) v Corporation of The Hall of Arts and Sciences Admn 2-Mar-2010
Residents near the Albert Hall objected to the alteration of its licence so as to allow boxing and wrestling activities, and the extension of its opening hours. They said that the advertisements for the alterations failed to receive the prominence . .
Cited – London Borough of Lewisham and Others), Regina (on The Application of) v Assessment and Qualifications Alliance and Others Admn 13-Feb-2013
Judicial review was sought of the changes to the marking systems for GCSE English in 2012.
Held: The claim failed. Though properly brought, the failure was in the underlying structue of the qualification, and not in the respondent’s attempts . .
Lists of cited by and citing cases may be incomplete.
Legal Professions, Damages
Updated: 17 July 2022; Ref: scu.270576
