JR UK

THE COCOO’S JR TECHNIQUE

there are two types of makers of ‘decisions, omissions, conducts or acts’ (DOCAS) :

* docas-maker 1: government, regulators and the cma:

they have a ‘monopoly of discretion’ to decide on questions of fact (QOF)…even DOCAS based on incomplete or incorrect political statements, or even docas suffering from errors of judgment (EOJ), may not be subjected to judicial review (JR), UNLESS THERE IS A QOL ERROR (see below) .

JR may not even be used to ask a court to propose new or alternative QOFs >> CoCoo’s mission is to JR the DOCAS (of gov, regulators and cma). thus, CoCoo must , to every single fact, apply different possible interpretations, so that we may propose new, alternative QOFs, and, this way, attempt to fit into the single exception to this monopoly ( enjoyed by gov, regulators and cma) and win a JR. This single monopoly exception (an exception to the (gov,regulator,cma)’s discretionary power is justified on lack of democratic legitimacy to reach a particular DOCAS in a way that gives ‘factual immunity’ to the decision maker (gov, regulators or cma) against any possible political responsibility. ONLY if this is the case, JR wins over this monopoly of discretion, so that such DOCAS is declared void on the basis that it was reached ULTRAVIRES ( overstepping the boundaries of the democratic legitimacy that justified the ‘monopoly of discretion’).

* docas-maker 2: JR COURTS:

JR courts have a ‘monopoly of discretion’ to decide on:

A/- questions of law (QOL), and

B/- QOFs (via JR). :

the JR standard of proof is not based ‘on merit’, but only on QOL ERRORS: JR may only void a DOCAS by (gov, regulator, cma), if such docas is vitiated by either of these 5 QOL ERRORS:

QOL ERROR 1: where docas fail to identify the POLICY PREFERENCES used to reach such docas. here, the gov/reg/cma fail their duty to disclose the grounds used in the BALANCING ACT (BA). example: if the docas emerged from a BA between unlawful options.

QOL ERROR 2: where docas fail to treat all submitted information (REPORTS, OBSERVATIONS, CONSULTATIONS) with EQUAL RESPECT…..this usually happens where there is lobbying involved, and in exchange for lobbying donations, the lobbying information is given more weight in reaching the docas…this is UNDUE INFLUENCE

QOL ERROR 3: where docas fail to BA between: the impact of the proposed docas, and ALL OTHER POSSIBLE ALTERNATIVE OPTIONS AND PROCEDURES:

-example: JR voided a docas that created a Partnership Procurement process (PPP) project, because the docas failed to consider, as an option, not building the bridge (that was the basis of the PPP).

-example: where not all possible options and procedures were considered during the BA from which the docas was reached.

– example: docas reached from a BA where all options were unlawful

QOL ERROR 4: where docas lacks both sufficient motivation and sufficient reasoning…..for instance, because of insufficient public consultation. this would also be a case of undue influence vitiating the docas. docas fails where it fails to reflect political support. this is called ‘wednesbury unreasonableness’.

public decision making is subject to scrutiny by:

  • consultation procedures
  • complaints of maladministration 
  • JR (ON WPI): JR is in the High Court (e.g. the Planning Court, or the Administrative Court) or in the Upper Tribunal (for  immigration jr)…..JR can challenge [eg on ground of unreasonableness=irrationality], the lawfulness of : 

• decisions [ of central government, regulators, local authorities, or other bodies (eg tendered) performing a public function.  can jr:

        • content of decision
        • procedures used to make decisions, e.g. a challenge  a consultation process 
        • omissions (inaction), e.g. a failure to issue guidance
        • actions:
          •  the power to act* is always subject to Discretion [ the exercise of Discretion is also subject to JR ]
          • the duty to act is mandatory (not subject to Discretion]
        • delay, e.g. delay in making a decision 

• subordinate (secondary) legislation = law enacted under delegated statutory powers (= SIs = statutory instruments =  (Codes, Orders, Regulations, selfreg, Rules) ) to develop an Act. The Act must say what/how changes can be made to an Act, by secondary legislation…..

-pta delegation:

• general rule:  statutory ptas cannot be delegated

• exception= ‘the Carltona principle’ :  Ministers can can delegate ptas to officials of appropriate seniority and experience, as long as are decisions of no special importance. Applies to both statutory and non-statutory ptas

-primary legislation = statutory provisions = Acts = Bills. The House of Commons and the House of Lords approve an act, and the Monarch grants it his Royal Assent.  Acts create/change [laws = rules that courts can enforce]….however….courts cannot overturn or quash primary legislation, because parliament is sovereign. courts can however overturn secondary legislation. Both primary and secondary legislation are enforceable (via damage claims, fines and jail)

• policies & practices = wpi goals that direct how pbs must behave and design laws.  policies are enforceable [via penalities/remedies: eg training, probation, etc]…

A policy can be challenged [and also the pb decision steming from such policy] , if is unlawful or applied too rigidly, causing the discretionary power to be fettered, limited unlawfully,  or not applied at all

• reports and recommendations;

• advice or guidance.   guidance is not enforceable [thus, cannot bring damage claim for pb breach of guidance/advice] 

JR GROUNDS

* Even if the the statute seems to confer a [pta = discretion] [on the decision maker], (eg: the Minister “may” do), he may, instead:

-be under a duty, if the statute is interpreted correctly [within its policy (overarching wpi goal, spirit)]

-The power may limit the discretion

– the power to act [pta] is always limited by wpi duties imposed by Courts [on pbs]:

      • for its (lawful) purpose (express or implied from policy)…ow, the action will be ultra vires (beyond its powers)…but a pb using pta for tasks ‘conducive to’ or ‘reasonably incidental to’ a defined purpose, is not ultravires……Under the HRA98, any decision which breaches the subject’s rights under the ECHR or under EC law is invalid. eg:  subordinate legislation incompatible with a Convention right, is ultravires, unless primary legislation requires the subordinate legislation to be incompatible with a convention right
      • taking relevant factors into account when reaching a decision, and not take into account irrelevant factors
      • in conformity with the ECHR (the Convention) and the Equality Act 2010
      • Reasonableness = rationality (the ‘Wednesbury Principles’) : A decision made using a [discretionary power = pta], must be ‘reasonable’ and in possession of all the facts in the case….‘Reasonableness’ is needed, because there can be many lawful pb decisions, but only 1 the most reasonable…..Proportionality pple: The Courts adjust the threshold of ‘reasonableness’ according to the importance of the rights involved…hra rights require more pb reasonableness: 
          • is the legal objective of a decis sufficiently important to justify the limitation of a fundamental right?
          • is the decis rationally connected to the objective?
          • could a less intrusive decis have been used to accomplish the objective? 
          • has a fair balance has been struck between the rights of the individual and the interests of the community?

Discrimination: two forms:

  • direct discrimination 
  • indirect discrimination (failing to treat differently, to differently people)

A policy, decision or subordinate law, is unlawful if incompatible with a person’s right under Article 14 of the Convention [ = right to enjoy Convention rights without discrimination]

The Courts may also declare primary legislation incompatible with the Article 14 right

Article 21 of the EU Charter prohibits discrimination

Section 29, Equality Act 2010: A policy or decision violating section 29 may be quashed on the basis of illegality

procedure

The pta must be exercised following Procedure (‘due process’). 2 types:

  •  ‘Directory’ procedure: are minor or technical…their breach do not damage the public. thus, pb decision is valid

• Legal Procedure [eg decision must be reached in a procedural fair way]:  is ‘mandatory’, ow:  pb decision is invalid….conditions of proper and fair consultation :

    • must be undertaken when proposals are still at a formative stage
    • Sufficient explanation must be given
    • Adequate time for the consultation process must be given
    • The consultees’ responses must be taken into account
    • The pb decision maker must not have any bias/coi/influence(eg lobbying)….ow: invalid decision….<>Article 6, Convention (right to a fair trial)

LE: Legitimate expectation…Egs:

-in the past, a policy or procedure was operated in a particular way (so the victim expected that it would continue the same way)

-the decision maker promised a benefit and then refuses it, harming the victim

Where there is an LE, a balancing exercise is needed between the public and the private interest. if there is a wpi, the private legitexp will be overriden/outweighed.

Any unofficial and loose practice or statement of intention, may give rise to unintended legitimate expectations, or unintentional breach of les

<> cocoo, before starting research etc… will seek a fee promise [express or implied] from the firm/pb, in exchange for saving them millions in possible cma/ec fines/remedies …so, if after the work is done, they fail to pay the fee, cocoo can claim the fee on ground of legitexp.

pb decision immune from JR

where the Court accepts the decision maker is better qualified than the Court to make a judgment, due to specialist knowledge or because political judgment is needed, egs:

• in judging how to negotiate with foreign governments;

• in deciding to spend public money in one way rather than another; 

• national security and public order;

• setting policy on immigration and deportation.

• Acts of Parliament (and by extension decisions by ministers as to what laws to propose to Parliament) , are JR immune, except in relation to compliance with EC law, HRA98 and the ECHR

Before making a decision, a pb must answer

  •  What is the purpose of the power to take the decision?

• Are there any factors that must or may be taken into account, or which must not be considered?

• Are the particular facts relied upon in making the decision accurate and up to date? If not, have you sought input from those who have up to date information?

• Where representations have been made, have you taken account of them and is it appropriate to do so?

• Are any rights under the Convention engaged?

• Has anything irrelevant been considered?

• Are the reasons for taking the decision in accordance with the power?

• Have the reasons been recorded?

pb decision makers must be:

  • within the limits of the statutory pta
  • fair: i.e. fair procedure and no bias
  • reasonable
  • in line with EA (equality act)ECHR and HRA, [and before brexit: with eu law]

JR 3ps 

• An ‘interested party’ might be a party, even though is not a claimant or defendant but is ‘directly affected’

• An ‘intervener’ is a third party interested in the outcome but who is not directly affected eg cocoo,to provide information its area of expertise or, even better, of experience

JR procedure

  • before applying for jr, all other appeal options must be exhausted first +  pap + consider adr
  • Judicial review is not concerned with merits, but only with lawfulness 
  • Jr must be brought promptly within three months of the decision under challenge.
  • Whether the claim will be defended or conceded, the pb must file an acknowledgement of service (AOS)
  • The Courts will make a decision on the papers (the ‘permission decision’). The claimant can request an oral hearing if permission is refused, unless jr permission is refused on basis that is ‘bound to fail’ 
  • jr claim can be settled at any stage
  • Duty of candour and disclosure: both parties must disclose/discover info, even if undermines their case…The duty of candour arises from the moment that litigation is anticipated….The duty of candour is separate to the requirement to provide information under the FOIA… A party often makes a foi request before a jr claim. 
  • Marking information ‘without prejudice’, ‘confidential’, ‘sensitive’ or ‘not for disclosure’ does not necessarily prevent it being disclosable

jr challenge to decision personally taken by a Minister

• What were the Minister’s reasons for making a decision?

• Are these reasons recorded,[eg. in a detailed submission given to the Minister before he made the decision]?

• The Minister needs to personally get involved in defending the decision 

• Who will sign any witness statement…. The Minister or one of his officials?

• The Minister must approve any evidence given by him or on his behalf

Appeals

After the jr,  either party can make an application to appeal….if permission to appeal is refused, the part can apply directly to the higher court (either the Court of Appeal or in very limited circumstances, the Supreme Court).

Remedies

Interim relief: if the claimant’s position is adversely affected during the slow jr claim, he can apply for [interim relief = an injunction, or directions to produce information]

the defendant (pb) may give an undertaking – e.g. promising to make a decision within a timeframe.

• Declarations of Incompatibility, granted by the High Court (or higher court), which confirms primary legislation is incompatible with a Convention (human) right

• Following a successful jr, the Court can order:

  • a quashing order, to sets aside/cancel an unlawful decision (or subordinate legislation)
  • a prohibiting order, to stop the pb from performing the unlawful act
  • a mandatory order to the pb
  • a declaration that a particular decision is unlawful
  • damages (rare)…. eg. under the HRA, damages for a breach of a Convention (human) right are available.

Private law claims in jr:  damages award for these ‘civil wrongs’ (torts).

  • negligence :  requires a ‘duty of care’ towards the claimant
  • misfeasance in public office = negligence + ‘malice’ (i.e. deliberate or reckless disregard to acting illegally)
  • Breach of statutory duty:    claimant needs to demonstrate that the statutory duty is to protect a limited class of the public, and that Parliament intended that damages are available if the statutory duty is breached.

ADR

• mediation is often cheaper, less public and more informal than litigation.

• The JR PAP :  the Courts may costs penalise the parties for not pursuing ADR , instead of jr. 

Parl.Ombudsman (=Parl. Commissioner for Admin)

• can investigate complaints made via a MP, and can be an alternative to litigation.

• can recommend that a pb pay compensation; issue an apology; or make recommendations to improve pb management, even if has no legal liability.

Leapfrog  jr appeals

from (High Court to Supreme Court) = heard directly by the Supreme Court, bypassing the Court of Appeal,  is allowed when:

(a) the appeal raises issues of national importance;

(b) the result is of particular significance; or

(c) the benefit of early consideration by the Supreme Court outweighs the benefit of consideration by the Court of Appeal.

JR COSTS

 -Wasted costs orders: an order that the sols/counsel pay some or all the case costs, due to their conduct of the case

– The Court may ignore a pb breach of the law,  if it is highly likely that the breach would not have made a difference to the claimant. The Court will refuse jr permission…unless there are “reasons of exceptional pi

-Interveners can be liable for the costs, if their intervention has not been of significant assistance or behaved unreasonably

-most PCOs are granted before jr permission is granted, because the cases would not have proceeded if they had to wait for permission granted before seeking a PCO, because the risk of having to pay a defendant’s pre-permission costs (aroung 30k) would be too great to enable most individuals or charities……if court grant a PCO, they could also cap the costs that the claimant can recover

Public Sector Equality Duty (PSED) S.149 of the Equality Act

a pb, or anyone performing a public function (eg tender firms), must have due regard to eliminate:  discrimination, harassment, victimisation….The protected characteristics are:  age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.

pbs must evidence their psed consideration in the decision making process..ow, Court may quash a decision

JR IN MERGER CONTROL

CMA has been aggressive to assert jurisdiction over foreign-to-foreign deals with little U.K. nexus.  Its analytical lens has exceeded beyond reviewing possible anticomps, all the way to whether:

  • outsized valuations mask anticompetitive intent
  • new competitors might be future heavyweights
  • alternative buyers generate more competition

The CAT acts under a jr [= does not concern about the merits of the cma decision, but only whether is illegal, irrational or procedural unfair]…so, is very hard for appellants to succeed in challenging a cma merger decision.

  • No de novo, or merits appeal of CMA merger decisions is available.  thus, CMA errors on core issues, such as market definition or closeness of competition, survive challenge, unless so egregious to be irrational (unreasonable)
  • Hard legal questions are the most likely to win…eg in Eurotunnel, which involved consideration of the legal definition of an enterprise
  • Claims alleging procedural unfairness can succeed, as in Sainsburys/Asda. Here, the CAT struck down an impossibly short CMA deadline and refusal to extend it
  • CAT allows CMA to curtail disclosure, on grounds of administrative efficiency. The parties are entitled only to understand the gist of the evidence against them……Underlying data, surveys or documents need not be provided
  • very rare to win using quasi-merits grounds, eg on distortion of the facts, or lack of proportionality 

EU

Article 230 of the EC Treaty:  allows claims for annulment of EC acts, on the grounds of:

  • lack of competence
  • infringement of an essential procedural requirement
  • infringement of the ec Treaty or of any law on its application
  • misuse of powers.

Jr of EC competition/merger decisions,  is heard by the CFI :

Unlike in uk (cat), usa, germ, france…..an appeal to the CFI is not a rehearing appeal, but an appeal by jr, and only on these poss. grounds:

  • -lack of jurisdiction,
  • -procedural error,
  • -error of law
  • -misuse of power
  • error of fact
  • error of appreciation
  • absence of reasoning

Level of proof:  “to the requisite legal standard.” = “proof beyond reasonable doubt,” = “to a very high degree of probability.”

CFI will not overrule the EC, except where there has been a manifest error of appraisal.

EC : ‘jr is illusory, on account of the lengthy delays…A late jr is of no greater benefit than a fast jr of a low standard.

The CFI now offers an expedited procedure in Article 76(a)

 

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