Public Law - Judicial Review

Principle	Case Name / Definition
Senior Courts Act 1981	s31
Civil Procedure Rule (CPR)	part 54
Remedies	Prerogative orders: (CPR 54.2) quashing order prohibiting order mandatory order Non-prerogative orders: declarations injunctions (may include damages, but not damages alone) CPR 54.3(2), SCA s31(4)
using private law procedure for public law rights - abuse of process Procedure Exclusivity	O'Reilly v Mackman [1983] - Prison Riot
Datafin 2 part test	source of power test - if setup under statute / delegated legislation / or derives power from a reviewable prergative power = public body nature of power test - if the body making the decision is exercising public law functions = may still be a public body
Locus Standii	S31(3) Senior Courts Act - court must not grant leave for application for JR unless it considers that the applicant has a sufficient interest in the matter to which the application relates
whose rights or interests are directly affected by public decision or action	Schmidt v SS Home Affairs [1969] - Study Scientology
May recognise the sufficient interest of an individual to challenge a decision that affects society as a whole	R v SS Foreign Affairs ex p Rees-Mogg [1994] - former editor ot Times, regarding EU law power
courts will recognise the interests of organisations when decisions or actions affect members individually	R v Liverpool Corporation ex p. Liverpool Taxi Fleet Operators Association [1972]
May recognise interest to decision or action that allegedly harms the public interest	IRC v National Federation of Small Business [1982] - evade tax
Factors the court will take into account when deciding whether a pressure group has sufficient standing to bring a claim for JR: 1. the importance of the matter 2. whether anybody is better placed to bring the claim 3. the need to uphold the rule of law 4. the role of the pressure group 5. the relevant statutory duty involved	R v Secretary of States for Foreign Affairs, ex p World Development Movement Limited [1995]
Time Limits	CPR Part 54.5 - 3 months SCA 1981 s31(6) - Without undue delay
Full Ouster - 'should not be called into question in any court of law'	Anisminic v Foreign Compensation Commission [1969]
Partial Ouster - to exclude jurisdiction of the court once a time limit has expired	R v Secretary of State for the Environment ex p Ostler [1976]
In the absence of any negligence or breach of contract - no right to damages may not seek damages alone	R v Knowsley MBC, ex p Maguire [1992]
Grounds for JR	CCSU v Minister for Civil Service [1984] GCHQ - Lord Diplock 1. illegality 2. irrationality 3. procedural improprietary future - proportionality
Illegality (PREF WA)	- Acting without legal authority - Wrongful delegation - Fettering of discretion - Purposes - Relevant / irrelevant considerations - Error of law / Error of fact?
Procedural Impropriety (RM LOR)	- procedural fairness - natural justice - bias? - procedural ultra vires
Irrationality	so unreasonable - no reasonable recision-making would have come to it (Wednesbury)
Illegality - Acting without Legal Authority	Laker Airways v Department of Trade [1977] - Airline operator license, also frustrating the purpose of the Act SS for Education v Tameside MBC [1977] - Grammar school AG v Fulham - laundry case
Illigeality - The rule against delegation - decision making powers once given by Parliament, cannot then be further delegated, or sub-delegated	Vine v National Dock Labour Board [1957]
Exceptions to the rule against delegation Ministers sub-delegateing decision making powers to civil servants in their departments provides an exception to the generul rule against delegation - because of individual ministerial responsibility - government ministers are utimately responsible for Parliament for their departments - there is an expectation that they act through their civil servants in taking even major decisions	Carltona
Exceptions to the rule against delegation s101 of the Local Government Act 1972	Local authorities may delegate decision-making powers to committees, provided they make a formal resolution so to do
Illigality - Fettering by Dictation the decision is not based on a general policy, but based on another Minister's objection - fettered his discretion by not opening hist mind to hist application-	Lavender & Sons Ltd v Minister of Housing and Local Government [1970]
Illegality - Fettering by Self-created rules of policy Lord Reid - The general rule is that anyone who has to exercise a statutory discretion must not shout his ears to an application	British Oxygen v Minister of Technology [1971]
Illegality - Improper purposes	Congreve v Home Office [1976] - TV license $12 -> $18
Illegality - Dual purposes Provided the permitted/authorised purpose is the primary purpose -> not ultra vires	Westminister Corporation v LNWR [1905] - Toilet Subway
Illegality - Material Influence Test	R v ILEA, ex p Westminister City Council [1986] - $651000 ad campaign
Illegality - Taking account of irrelevant considerations or failing to take account of relevant considerations	Roberts v Hopwood [1925] - pay higher wage due to socialist policy
Illegality - Errors of law	Anisminic v Foreign Compensation Commission [1969]
Illegality - Errors of Fact	SSHD ex p Khawaja
Irrationality - The Wednesbury Priniciple The decision-maker came to a conclusion so unreasonable that no reasonable authority could ever have come to it	Associated Provincial Picture House v Wednesbury Corporation [1948]
Post-Wednesbury - to be irrational, a decision must be so outrageous in its difiance of logic or of accepted moral standards, that no sensible person could have arrived at it	GCHQ
Post-Wednesbury - the decision should be beyond the range of reasonable responses open to the decision maker - even higher standard	R v Ministry of Defence, ex p Smith [1996]
Proportionality - Definition	R v Goldstein [1983] - You must not use a steam hammer to crack a nut, if a nutcracker would do
Case not involving human rights, EU law - test remains Wednesbury unreasonableness / irrationality. For human rights, EU law - proportionality	R v SS for Defence ex p Associate of British Civilian Internees (Far East Region) [2003]
Procedural Impropriety - including ...	Statutory Procedural Requirements - Procedural Ultra Vires Common Law Procedural Requirements - Procedural Fairness - The Rule Against Bias
Procedural Impropriety - Procedural Ultra Vires	London and Clyde Estates Ltd v Aberdeen DC Lord Hailsham LC said: ‘When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. Aylesbury Mushroom The procedure allowed for consultations with appropriate organisations but this procedure was not followed.
Procedural Impropriety - Procedural Fairness - natural justice	Ridge v Baldwin [1963] - Chief Constable Dismissed without chance to defence
Procedural Fairness	- Advance notice of the case to be met - A reasonable amount of time to prepare a response - An opportunity to make representations - An opportunity to cross-examine persons who may have made adverse statements to the decision maker - legal representation - reasons for decision
Procedural Fairness - reasonable time to prepare responses	R v Thames Magistrates ex p Polemis [1974]
Procedural Fairness - An opportunity to make representations	McInnes v Onslow Fane [1978]
Procedural Fairness - Legal Representations Not an absolute right	R v Home Secretary ex p Tarrant [1985]
Procedural Fairness - An opportunity to cross-examine	R v Hull Prison Board of Vistors, ex p St Germain
Procedural Fairness - Reasons for the decision Reasons must be given when fairness requires it	R v Secretary of State for the Home Dept, ex p Doody [1994]
Direct Interest - Financial decision automatically set aside	Dimes v Grand Junction Canal [1852]
The Appearance of Bias	Porter v Magill Re Medicaments and Related Classes of Goods [2001] a fair-minded and informed observer would conclude that there was a real possibility that the judge was biased
Lord Hailsham LC said: ‘When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events.	London and Clyde Estates Ltd v Aberdeen DC
Proportionality case	Hook

Public Law - Royal Prerogative

Principle	Case Name / Definition
Royal Prerogative	RP is the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown. Every act which the govenment can lawfully do without the authority of an Act of Parliament is done in virtue of this Prerogative AV Dicey
... formulated the modern doctrine of the Separation of Powers	Montesquieu
... popularised the term elective dictatorship	Lord Hailsham
Definition of Convention	1. Rules of constitutional behaviour 2. Considered binding by thouse who operate the constitution 3. Not enforced by Courts or Parliament Marshall & Moodie
Sir Ivor Jenning's 3 stage test for existance of conventions	1. What are the precedents? 2. Did the actors in the precedents believe that they were bound by a rule? 3. Whether there is a good reason for the rule?
Freedom of Speech	Article 9 of the Bill of Rights 1689
Executive might exercise a power which appears to exist under the RP and is controlled by a statute, the executive must use the statutory power. The RP power is not available to the executive any more if a statute covers the same area. RP goes into abeyance	AG v De Keyser's Royal Hotel
Where a statutory power and a prerogative power cover the same area, the executive may use the prerogative power alongside the statutory power, if in the opinion of the court, the RP power convers an additional benefit	R v Home Secretary exp Northumbria Police Authority
Where a statute and a prerogative power exist in the same area, the executive may not use prerogative powers that confer and additional benefit if the statute clearly forbids what the executive wants to do	R v Home Secretary exp Fire Brigade Union
It is 350 years and a civil war too late for the queen's courts to broaden the prerogative	BBC v Johns
Traditional position - no right to review the exercise of power	Blackburn v AG
HL changed the law bout the power of the court to oversee the RP - designate all RP as either justiciable or non-justiciable. Court could interfere with the way the executive used "justiciable" prerogatives if the use of the prerogative was "Wednesbury unreasonable"	GCHQ - Lord Roskill
Non-justiciable prerogative could become justiciable, the court has the power to change it	R v Home Secretary exp Bentley case
The Wednesbury test	So unreasonable that no reasonable person could come to it
Management of civil service put on a statutory footing	Constitutional Reform and Governance Act 2010 (CRGA 2010)
Dicey's Rule of Law	1. the predominance of regular law over arbitrary power 2. no man is above the law 3. the existence of civil rights protected by the common law
Separation of powers - 3 branches	Executive, Legislature, Judiciary
The Crown can only exercise a royal prerogative that the common law has recognised	Case of Proclamations (1611), Entick v Carrington (1765)
Old prerogative can be adapted to new circumstances - Crown's ancient power to preserve the peace used to arm the police	R v Secretary of State for the Home Department, ex p Northumbria Police Ahtuority [1989]

Public Law - Parliamentary Sovereignty

Principle	Case Name / Definition
Enrolled Bill Rules	If it should appear a bill has been passed through both houses of Parliament and received the Royal Assent, no court of justice can inquire into the mode in which it was introduced into Parliament, not what was done previous to its introduction or what passed in Parliament during its stage through both houses. Lord Campbell, Edinburgh and Dalkeith Railway Co. v Wauchope [1842]
Parliamentary Sovereignty	The principle of Parliamentary Sovereignty means neither more nor less this, namely, that Parliament has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to set aside the legistration of Parliament. AV Dicey a. Parliament is the supreme law making body and make laws on ANY matter b. Parliament cannot bind its successors c. No body (including courts) can question the validity of an Act of Parliament
affirm Edinburgh and Dalkeith Railway v Wauchope	Pickin v British Railways Board [1994] HL said it had no constitutional authority to investigate the allegations that the act was improperly passed and so enforced the Act
Quorum	HC = 40, HL = 30
Procedure of making a Bill into Act	1st reading > 2nd reading > committee stage > report stage > 3rd readig > HL > Royal Assent
An earlier EU law prevailed over later conflicing national law to the extent of the conflict	Costa v ENEL
Not necessary for the national court to request or await the prior setting aside of the provision by legislative or other means	Simmenthal
Conflict between EU and a MS's constitution. Whether the nature of the EU law, prevails over any conflicting provisions of a Bill of Rights in a MS's constitution	Internationale Handelsgesellschaft
Forbids any discrimination against EU citizens on grounds of nationality	TFEU Art 18
Direct Effect	Van Gend en Loos critera 1. Clear and Precise 2. unconditional 3. not subject to further implementation by the MS or the EU
Implied Repeal	Vauxhall Estates v Liverpool Corporation [1932]
presumption of non-retrospectivity	Burmah Oil Co Ltd v Lord Advocate [1965] - receives compensation for destroyed plantation War Damages Act 1965 - no compensation retroactively exempts the Crown from liability in respect of damage to, or destruction of, property caused by acts lawfully done by the Crown during, or in contemplation of the outbreak of, a war in which it is engaged
Effects of Factortame	1. Doctrine of implied repeal will not stop directly effective EU law prevailing 2. Direct applicable EU law will prevail over conflicting national law by reason of s2(4) ECA 1972
ECtHR - Interstate application	ECHR article 33
ECtHR - Individual petitions	ECHR article 34
ECtHR - Cannot be made until all domestic remedies have been exhausted and within 6 months of any final domestic decision	ECHR article 35
HRA 1998 - mechanisms for courts to deal with legislation that conflicts with convention rights	s3 (interpretation), s4 (declaration of incompatibility), s10 fast track procedure - a government minister can amend a conflcting statute by laying a statutory instrument before Parliament
HRA s3	R v A (No. 2) [2002] Courts may adopt an interpretation which may appear linguistically strained - Lord Steyn "modifying, altering, or supplementing the words" (Lord Hope)
HRA s3	Ghaidan v Godin-Mendoza [2004] cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation
HRA s4	R v A - Declaration of incompatibility is a last resort - Lord Steyn Ghaidan - Lord Steyn - Interpretation under s3(1) is the prime remedial remedy and resort to s4 must always be an exceptional case R (Anderson) v SSHD [2002] courts have been warned to refrain from 'judicial vandalism' in using s3
HRA s10	The government minister may respond by making a remedial order under s10 - conflict removed - no violation
HRA s8	Remedies
Removed the HL's legislative veto, can now delay legislation foy 1 year apart from Money Bills and Bills to extend the life of Parliament	Parliament Acts of 1911 and 1949
The Enrolled Bill Rule only applies...	to Acts of Parliament NOT resolutions

Contract Law - Frustration

Principle	Case Name / Definition
Definition of frustration	Frustration occurs when, without fault of either party, a contratual obligation has become either impossible, illegal or radically different from that which was undertaken by the contract Lord Radcliffe in Davis v Fareham UDC HL [1956]
Original position - contract is absolute and couldn't be avoided for any reason	Paradine v Jane [1647]
Introduced the concept of frustration by using Implied terms - to excuse the parties if performance becomes impossible because of the destruction of the subject matter - a concert hall	Taylor v Caldwell [1863]
Modern view of frustration - depends on the construction of the contract	Davis v Fareham UDC [1956]
The doctrine is not to be lightly invoked (3 days out of 20 days)	The Sea Angel CA [2007]
not likely to be invoked to relieve contracting parties of the normal consequences of imprudent bargains	The Nema
Force Majeure Clauses	Channel Island Ferries v Sealink UK
Frustrating Events - Impossibility Destruction of concert venue	Taylor v Caldwell [1863]
venue for concert was declared unsafe	Gamerco v ICM
Unavailability of a person due to perform a contract for personal services can amount to frustration (concert pianist unable to play due to illness, so contract frustrated)	Robinson v Davison
death of a master watchmaker, to whom the P's son was apprenticed, after one year of a six year apprenticeship contract	Whincup v Hughes
Frustrating Events - Illegality Declaration of war - trading with the ememy - illegal	The Fibrosa
Frustrating Events - Radical Change in Circumstances - Frustration of Purpose hire a room to watch a coronation procession - cancel - viewing the procession was known to both parties to be the "foundation" of the contract	Krell v Henry
hire a boat to observe naval review by the Kong and to cruise around the fleet, was not frustrated by the cancellation of the review due to the King's illness	Herne Bay Steamboat Co v Hutton
Frustrating Events - Radical Change in Circumstances - Impracticality (English law has been reluctant to allow frustation on this basis) a contract to build houses, due to last 8 months, took 22 months, due to serious shortages of skilled labour and materials. The contract was not frustrated. Mere hardship and incovenience were not enough. The contractors should have protected themselves by making express provision in contract	Davis Contractors v Fareham UDC HL [1956]
Suez Canal was closed	Tsakiroglou v Noblee
Similar to above	The Eugenia
Limits to Frustration - Self-induced Frustration D chartered a boat but chose not to allot one of its license to it, no frustration	Maritime National Fish Ltd v Ocean Trawlers
the sinking of a boat intended for use to move an oil rig did not frustrate the contract, because there was another vessel, which could have moved it, but which the D had allocated to another contract	The Super Servant Two
exploding boiler on chartered ship	Joseph Constantine Steamship v Imperial Smelting Corp
Limits to Frustration - Express Provision	Metropolitan Water Board v Dick Kerr Bangladesh Export Import Co v Sucden Kerry
Limits to Frustration - Event Foreseen shortage of labour and materials was foreseeable	Davis v Fareham UDC [1956]
seller of goods generally bears the risk of a failure of the source of supply	CTI v Transclear
the event is foreseen doesn't necessary prevent frustration	The Eugenia
the less foreseeable an event, the more likely it is that the end result will be frustration	The Sea Angel CA [2007]
Effect of Frustration - discharges the contract automatically from the date of the frustrating event Loss "lies where it fails" at common law	Appleby v Myers Chandler v Webster The Fibrosa [1943]
The Law Reform (Frustrated Contracts) Act 1943 s1(2)	Gamerco v ICM
s1(3)	BP v Hunt