admin wksht 1 -notes and cases

7/28/2019 Admin Wksht 1 -Notes and Cases

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COMPILED IN PART BY SHORNA-KAYE EDWARDS

Administrative Law

WS1: Availability of Judicial ReviewDISCLAIMER: THESE NOTES HAVE BEEN COMPILED FROM VARIOUS SOURCES INCLUDING THE

ACTUAL CASES. ALL COPYRIGHT LAWS OBSERVED PLEASE USE FOR ACADEMIC PURPOSES

ONLY. NB: DONT TAKE ANYTHING AS GOSPEL THIS DOCUMENT IS SUBJECT TO REVIEW BY AN

AUTHORITATIVE SOURCE.

1. APPLYING FOR JUDICIAL REVIEW(a)Legislation

Barbados Administrative Justice Act [1983]- S. 3 (1): Application to the court for relief against an administrative act/omission may be made by way

of an application for judicial review in accordance with this Act and with rules of court.- S. 3 (2) Where the court is of the opinion that the defendant is not an authority of the govt, the court may

allow proceedings to go along with necessary amendment, as proceedings not governed by this act.

Trinidad and Tobago Judicial Review Act [2000]- S. 5 (1): an application for JR of a decision of an inferior crt, tribunal, public body/authority or a person

acting in the exercise of a public duty or function with any law shall be made to the Court in accordancewith this Act.

- S. 5 (2): Crt. May grant relief in accordance with the act to (a) person whoses interests are adverselyaffected by the decision (b) to a person or a group of persons if the court is satisified that the application

is justificable in the public interest in the circumstances of the case.

(b)Civil Procedure RulesAdministrative Law of the Eastern Caribbean Supreme Court (ECSC), Civil Procedure Rules (CPR), 2000

Parts 56: Who may apply for Judicial Review- 56.2(1) An application for JR may be made by any person, group, or body which has sufficient interest

in the subject matter of the application.

- 56.2(1): (a) This includes the person who has been adversely affected by the decision which is thesubject matter of the application. (b) any body or group acting at the request of a person in (a). (d) anybody who can show the matter is of public interest and that they possess expertise in the subject matter

of the application.- 56.3 (1): A person wishing to apply for JR must first obtain leave;- 56.3 (4): the application must be verified by evidence on affidavit which must include a short statement

of all facts relied on.

2. CLAIMANTSAn applicant seeking judicial review must generally meet the test of locus standi as a first step to getting hisapplication heard. He must be a juristic person, that is a: (a) person of the age of majority and above; or (b) if a

minor he can sue by his guardian or next of friend; or (C) a corporate body whether established by specialstatute or under the Companies Act.

Next the applicant must have some, or sufficient interest in the matter such as being prejudiced by the decisionor lack of decision about which he complains. It is said this requisite is to keep out busybodies or mischief-

makers from the courts.

The applicant must also ensure that the defendant is a juristic person. It is now a general practice to name theAttorney General as defendant in judicial review proceedings.


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The enforcement provision of the Constitutions of all the English-speaking Caribbean Commonwealth States is

explicit as to the nature of the interest required of an applicant seeking judicial review for breach of hisfundamental rights. The breach must be in relation to him 1 and in some Constitutions of the English-speakingCommonwealth Caribbean States, the said enforcement provision also provides for a detained person to instructhis attorney-at-law to apply on his behalf.

In Collymore,Wooding C.J. seems to suggest obiter dicta, that a trade union or other organisation recognised

by law may also be capable of suing under this category.

With respect to judicial review for Acts of Parliament inconsistent with provisions of the Constitution other thanthe fundamental rights provision, all the Constitutions of the members of the Organisation of Eastern Caribbean

States expressly provide that the applicant must have a relevant interest. The constitutions of the otherterritories have no such provision regarding judicial review, but that appears to be no bar to judicial review

under this limb as the cases ofHinds v. R andThe Attorney General of Trinidad and Tobago v. McLeod [1984]1 WLR 522 demonstrate.

If the claim is meritous the claimant will have locus standi. If not he has no locus standi.

Make an application: apply for leave, the court will make a determination if fact gives rise to a claim. The claimfor declaration. Even on some occasion when there is an application, the court will grant leave even if you donot have locus standi. The court is really avoiding the issue of locus standi and holding it on the basis of merit.

The two are seemingly inextricable linked now.

(a)Capacity and StandingThe two elements that a claimant must show when he wants to prove he has locus stani is that he has (a)

capacity and (b) sufficient interest to create standing. There is an important difference between capacity andstanding: capacity is whether the entity itself, seeking JR, has the legal capability to bring a claim for JR (e.g.

Corporations). Standing on the other hand, is whether the entity has the sufficient interest to be able to bring theclaim.

Capacity for this course sake speaks to institutional capacity. However it should be noted that minors have no

capacity for example, Kristi Charlescase 2008 in Jamaica where the minor who received the highest grade inthe Island for GSAT did not get a scholarship because the Ministry of Education thought a possibility existed

that she could have cheated. Her parents (Timothy and Cleopatra Charles) brought a claim in her steadCapacity is not inextricably linked to standing.

Individuals always have capacity as legislation so provides eg. ECSC CPR 56.2 any person , however thecapacities of companies is inferred from the fact that they possess legal rights from legislation and are subject tolegal action, and thus should possess to capacity to sue where applicable like individuals.

As such unincorporated associations and companies generally lack legal capacity to sue or be sued in theirown name. In some claims for JR, brought by unincorporated association it has been held as a bar to permissionbeing granted. A different approach has been adopted in other cases, where either the issue of capacity doesn t

arise or a member such as chairman, secretary or other member of association is recognised as representing theassociation ie the unincorporated association can make a claim in their own name for JR through amember in a representative capacity how has been directly affected or raising a issue of public interestand the member is the appropriate person.

1Collymore v. The Attorney General of Trinidad and Tobago (1967) 12 W.I.R. 5 per Wooding, C.J . at p 19 F I


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It is possible to seek an order under the CPR that a claim be begun or continued with one party representing the

interests of others who have the same interest in the claim. Given that the unincorporated status of adefendant is not a bar to being subject to or defending JR (ex P Datafin) , a flexible approach is appropriate

Desmith Judicial Review concludes that Unincorporated associations have been allowed to be claimants inmany cases.

Incorporation will not of itself create sufficient interest it will only mean that the association now has capacity

they will still have to prove the second test.

Collymore v AGThe appellants were suing for infringement of their right to participate in the activities of a trade union. They

were challenging the lawfulness of the industrialisation stabilisation act, which allegedly infringed theirconstitutional right to freedom of association. The action was brought in the applicant s personal capacity butthe justices consistently treated the action as if it were brought by the trade union since it was broughtcollectively by its membership.

Fraser JA quotes Professor Dicey who said: In almost every country some forms of association force uponpublic attention the practical difficulty of so regulating the right of association that its exercise may neither

trench upon each citizens individual freedom nor shake the supreme authority of the state. The problem to be

solved, either as a matter of theory or as a matter of practical necessity, is at bottom always and everywhere the

same. How can the right of combined action be curtailed without depriving individual liberty of half its value;how can it be left unrestricted without destroying either the liberty of individual citizens, or the power of the

Government?

Wooding CJ: it [ the constitution] was intended to protect natural persons primarily but that 'Some of the particular prohibitionsare undoubtedly apt to protect artificial legal entities also,...' recognise that a trade union or other organisation acts, as it must, through

its Executive. the act constituting the offence, if directed by a member of its Executive, to be its own. since s 41 (3) affects only atrade union or other organisation, neither of the appellants can rely on it to complain of any contravention, actual or threatened, in

relation to him such as is necessary to qualify him to move in respect of it under s 6 (1) of the Constitution.

CorporationsAG v Antigua times Ltd [1976] -The appellants were a registered company in Antigua and applied to the HC

for JR seeking declarations that two parliament acts were ultra vires the legislature and repugnant to s10 of theconstitution (i.e. imposition of the license fee on newspaper companies was not enacted to raise revenue as

required). It was contended that the corporation had no locus standi because the redress under the s 15 was for any person alleging infringement of constitutional rights to him and that excluded artificial persons.Held: (Lord Wilberforce) that there was nothing in the context of the Constitution to exclude artificial

persons in so far as they were capable of enjoying the fundamental rights and freedoms protected by theConstitution; that 'any person' in s 15 included a body corporate. Olivier v. Buttigieg [1967] 1 A.C. 115. '

It is obvious that there are certain rights and freedoms in the Constitution which from their very nature cannotbe enjoyed by a corporation (the right to life) but there is nothing in principle which prevents a corporation fromenjoying other rights (securing of protection of the law or the rights relating to the compulsory acquisition of

property, if a corporation's property were compulsorily acquired it be entitled to compensation.)

Societe United Docks v Govt of Mauritius [1985] - The appellant companies brought actions against thegovernment of Mauritius seeking redress claiming that an Act deprived them of property without compensation

contrary to s 3 the Constitution. held, that the right of the individual to protection from deprivation of propertywithout compensation afforded by s 3 of the Constitution applied also to corporate bodies. There is nothing in
http://web2.westlaw.com/find/default.wl?vc=0&ordoc=1975026523&rp=%2ffind%2fdefault.wl&DB=UK%2DCASELOC&SerialNum=1966016592&FindType=Y&AP=&fn=_top&rs=WLW9.01&ifm=NotSet&mt=WestlawUK&vr=2.0&sv=Splithttp://web2.westlaw.com/find/default.wl?vc=0&ordoc=1975026523&rp=%2ffind%2fdefault.wl&DB=UK%2DCASELOC&SerialNum=1966016592&FindType=Y&AP=&fn=_top&rs=WLW9.01&ifm=NotSet&mt=WestlawUK&vr=2.0&sv=Splithttp://web2.westlaw.com/find/default.wl?vc=0&ordoc=1975026523&rp=%2ffind%2fdefault.wl&DB=UK%2DCASELOC&SerialNum=1966016592&FindType=Y&AP=&fn=_top&rs=WLW9.01&ifm=NotSet&mt=WestlawUK&vr=2.0&sv=Split


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section 3 to indicate that it does not apply to corporate bodies, even despite the word "individual. No logicadistinction can be drawn between the individual protected by s 3 and "the person" protected by the remaining

sections of the Constitution. Both expressions include a corporation where the context so allows.

Public Authorities:Many public authorites have capacity to institute legal proceedings. AG has an ancient power to make legal

claims in the name of the Crown as an aspect of his role as guardian of the public interest. He may also consentto the use of his name to enable proceedings to be brought by another party in a relator proceeding for

protection of the public interest in the civil courts.

The liberation of the court s approach to the sufficient interest test has more or less brought an end to the use ofrelator actions in public law context as there is now no impediment on a citizen commencing a claim in his own

name so (citizens naturally have capacity) to enforce a public duty.

Re Blake [1994] 47 WIR 174 We see the court adopt the approach of enquiring into the merits of theapplication before considering standing in this Caribbean case. The court examined the merits of the claim

before declaring that the decision of the Governor General to appoint as Prime Minister the individual who hadlost the election was non-jusiticiable mainly because a review of his decision would open the door for decision

making at the highest level of the state to be questioned.

The appellant filed an ex parte originating summons alleging that the Governor General s decision to appoint or retain thePrime Minister and to establish a minority government was unconstitutional and that such a decision infringed theappellants fundamental rights and freedoms. The appellant sought a declaration by the court based on those allegations

but in effect claimed an order of mandamus, requiring the Governor General to remove the Prime Minister from office, to

dissolve parliament and to call a general election. Hylton J refused the application and the appellant appealed to the CA.

Held: leaving aside the procedural aspects of the case, the CA held that s.116 (2) of the Constitution precluded any courtfrom enquiring into the exercise by the Governor General of the power under s52 of the Constitution to appoint a Prime

Minister. Notwithstanding s119(11) (which empowered the courts to consider the exercise of functions under theConstitution), the court held that decisions of the Governor General under s.52 were non-justiciable. The court added thatif the decision of the GG to appoint a PM were made subject to judicial review, the results could be horrendous. It would

mean that the Head of State might be required to divulge sensitive confidential opinions and information imparted by theRepresentatives and other persons and would be exposed to all the undesirable consequences of such disclosure. Public

policy dictated that the Head of State should be spared those consequences.

(b)Standing the Sufficient Interest requirementAll legal systems have to face the problem of resolving the conflict between two aspects of the public interest the desirability of encouraging people to participate actively in the enforcement of the law, and theundesirability of encouraging meddlesome interlopers invoking the jurisdiction of the courts in which they are

not concerned. To deprive a person of access to the courts because of lack of standing can raise issues ofconstitutional significance. At its heart is the question of whether it can be right, as a matter of principle, for a

person with an otherwise meritous challenge to the validity of a public authority s action to be turned away bythe court on the ground that his rights or interests are not sufficiently affected by the impugned decision.

Question: If a decision which is otherwise justiciable is legally flawed, should the court prevent its jurisdiction

beinginvoked because the litigant is not qualified to raised the issue?

- Yes, presupposes that the crt s supervisory jurisdiction is to redress individual grievances, rather thanmaintenance of rule of law (JR suppose to be concerned with that).


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- Arguments to Restrict Access: (1) Crt s resources shld not b dissipated by need 2 provide forum forfrivoulous or academic proceedings; (2) Central/local govt. Authorities shldn t b disrupted unnecessarilyby having to contest unmeritous proceedings; (3) As a matter of prudence the crts. Should reserve theirpwr to interfere with the workings of public authorities to those occasions when there is acclaim b4 them

by someone who has been adversely affected by the unlawful conduct of which complaint is made (4) Iis important that the crts confine themselves to their correct constitutional roles, and do not become

involved in determining issues which are not justiciable by giving unlimited access to the courts.- In favour of a more open (generous) approach: (1) When there are strict rules as to to standings there is

always the risk that no one will be in a position to bring proceedings to test the lawfulness ofadministrative action. It is hardly desirable that a situation should exist where because all members of

the public are equally affected no one is in a position to bring proceedings. (2) Fears that are sometimevoiced of the courts being overwhelmed by a flood of frivoulous claims are unsupported by any

evidence of this happening in practice. (3) the cost of litigation are now so heavy that it is only the mostdetermined litigant who will indulge in legal proceeding which are w/o merits.

However as it is important in the interest of the general public that the law be enforced, the policy is to

encourage individuals and groups even though not directly affected to challenge unlawful administrative action.Strict rules as to standing run the risk of one on being in a position to bring proceedings, and plus there are other

safeguards in place to prevent unmeritorious claims.

(B) THE SUFFICIENT INTEREST (SI) REQUIREMENT No application for JR shall be made unless the leave of the court has been obtained in accordance with therules of court; and the court shall not grant leave unless the application has sufficient interest in thematter[ECSC CPR 56. 2(1) and 56. 3(1)]. Assessment of standing relate to the circumstances at the time whenpermission is sought. Normally, the parties will raise the issue of standing. The defendant may not merelyagree to the claimant having jurisdiction, which the court may not have, by consent, he can challenge it.

The courts may also take the standing point of its own motion even if not raised by the parties. In R Bulger v

Lord CJ, the father was of murder victim sought to challenge, by JR, the tariff (punitive term) set by the LCJfor the murderers. On the issue of standing, it was seen that it is the parties that initially raise the issue of

standing but in case they dont the court also can, and it did because it considered it of potential importance.

It was found that the father did not have sufficient interest in the matter to bring JR; the parties to criminal

proceedings, crown and the defendant are able to challenge those judicial decisions susceptible to JR, but not athird party. At best the invitation extended to him to make representations on the impact of the offence on him

gave a limited standing to enable him too challenge any failure to have regard to that, but not challenge theappropriate tariff.

Relevance of standing

(a)At the permission stage for leave to apply forJR- [ECSC CPR 56.3(1)] makes it clear, A personwishing to apply for JR must first obtain leave. If there is insufficient interest at that stage, the court isprohibited from granting permission. National Federation case HOL held however, except in obvious

cases, that sufficient interest ought not to be dealt with at the substantive hearing because it cannot beconsidered isolated from the legal and factual context, instead it shoul be postponed until the full hearingof the claim.

- The threshold for standing at the persmission stage should be set only at the height necessary to preventabusive claimants. A person/body with a bona fide concern about the subject matter of the proceedings

wouldn t be a troublemaker, however person with other non-geniune motives may be denied and also ifthe grounds for challenge are totally unarguable.

- When assessing whether these is an abuse, the claimant s motives for making the claim may be relevant(Golding v Simpson Miller SC CA No 3/08).


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- Regard may be had to the basis of the claim, if they are totally w/o foundation or unarguable, anystanding that a claimant might hypothetical have disappears.

- De Smith Judicial Review opines where the grounds of challenge are hopeless it is preferable for the crtto refuse permission on that basis alone w/o making any ruling on standing.

(b)At the full hearing for the application of JR- from the ECSC CPR, the claimant s sufficient interest isa condition precedent to the court having jurisdiction. Thus examination of standing at this stage is

necessary to ensure the Admin court has jurisdiction. Normally standing is not the preliminary issue athearings, grounds for JR first. The task of the court in assessing whether a particular claimant has

standing has been described by Popplewell J in R v North Somerset DC Ex p. Garnett [1998] as abalancing act between the various factors.

(c)In relation to the grant of remedial orders The degree of the claimant s interest will depend on theremedy which is claimed, eg. A greater degree of interest is needed for a mandatory order than adeclaration. R (Leigh) v Felixstone - A journalist not present at the hearing had sufficient interest to

claim a declaration that a policy of not disclosing names of justices who had certain types of cases wascontrary to public interest, but he was refused a mandatory order to reveal names of a particular case. I

would be difficult to apply different principles of standing to different remedies at the permission stage,because claimants tend to include all relevant remedies at then and only after the full hearing decide

which order to request. However at this National Federation (Wilberforce & Scarman) are relevant: in

a court s discretion to grant relief, the interest of the claimant is a factor to be considered when decidingwhat, if any, relief should be given, however they opined that for some remedies a crt is going to bemore hestitant to grant relief if claimant does not really have standing.

Davey v Aylesbury Vale District Council [2007] the purpose of the permission hearing

The court was asked here whether, as a general rule, an order made following a full judicial review hearing thata successful defendant should recover its costs will entitle it not only to its acknowledgement costs but to any

reasonably incurred preparation costs. The court dismissed case saying the applicants should ensure that whenfinal cost is presented to judge any preparation cost is included.

-Sedley LJ quotes with approval Lord Diplock judgment in the IRC v National Federation of Self Employed and Small

Businesses [1982] AC 617, at 643-644:'... The whole purpose of requiring that leave should first be obtained to make the application

for judicial review would be defeated if the court were to go into the matter in any depth at that stage. If, on a quick perusal of thematerial then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour

of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for thatrelief. ...'

Assessing the Claimants interest

Bulger- the threshold for standing in judicial review has generally been set by the courts at a low level, becauseof the importance in public law that someone should be able to call decision makers to account, lest the rule of

law break down and private rights be denied by public bodies.

There is no guidance by the section CPR, as to the factors to be considered. The court assesses it against all the

factual and legal circumstances of the case. It is a mixed question of fact and degree.

Lord Roskill states inNational Federation that the phrase sufficient interest, embraces all classes of those who

might apply, yet permits sufficient flexibility in any particular case to determine whether or not it was shown.This is precisely the approach which has been accepted in the vast majority of cases, even though it creates

considerable scope for differing judgments on the same facts as to whether a claimant has standing (LordDiplock dissent National Federation and Lord Jauncey dissentEqual Opportunities Commission v Secretary ofState for Employment [1995]).


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Main Factors in assessing:- Impact and proximity interests If the decision which the claimant wishes to challenge interferes

directly, with his personal/public rights or has adverse financial consequences, he will have standing(direct effect), e.g. A person who uses public land, a beach upon which byelaws where passed

impugning his rights to use the beach had standing to challenge decisions in respect of it R (Manson) vDyfed ; but in a challenge to grant of a license, a person not in contention for the grant may lack

standing R (Wildman) v Office of Comm.- Public Interest It may not be necessary for the claimant to show any personal proximity to the

decision or special impact or interest over an above that shared with the generality of the public . Thecourts have drawn distinction between one who brings proceedings having no real or genuine interest in

obtaining the relief sought (no SI) and one legitimately and passionately interested in obtaining reliefrelies as grounds for seeking that relief on matters in which he has no personal interest (yes SI). e.g.

former editor of Times, was held to have standing to challenge the foreign sec. decision to ratify theTreaty on EU because of his sincere concern for constitutional issues (exp Rees Mogg).

- See [Payne v AG] and [Francios v AG] in Parlex Admin Wk Sht.1 Cases.

Other Factors:

- Absence of other challenges may weigh in claimants favour, because otherwise there would be a gapin the vindication of the law.- Legislative framework in which the public authority s decision is made 1.if it gives the claimant a

right to make representations before the decision is reached, this is a strong indication of standing tochallenge it when made. 2 whether the statute under which the decision was taken gives an implied right

to person in position of the claimant to complain of the alleged unlawful (National Federation, LordFrazer) 3. The legislation may be intended to protect the section of the public whose interests the

claimant is seeking to defend.- Strength of the grounds of review and the importance of the point of issue and the public interest is

likely to be considered but are not dominant factors.

Campaign and interest groups as claimants basis on which they have interest varies.(i) They may have been directly affected as an organisation by the challenged decision.(ii) Where members of the organisation are personally affected they may bring the claim in a representative

capacity.

(iii) They may bring a claim as a public interest challenge as a group -

National Federation a body which represents a group of claimants who are seeking to establish standing arein no better position than an individual, since an aggregate of individuals, each of whom has no interest cannotitself have an interest. Ex p Rose Theatre applied this principle to a body of individuals who because they were interested inpreserving a site of historical theatrical remains from development, formed a company to challenge the failure

of the minister to prevent the development. Judge said: incorporating into a group and pursuing a particularobject, doesn t give interest if the individuals themselves lack interest.

These principles are can be applied without undesirable results but are not principles of general application.

There is no magic in the act of incorporation, however a group of persons combined to make a claim may givethem enhanced authority to speak on behalf a section of the public; they may acquire special status of

acknowledged expertise; they may have standing to represent less fortune groups or individuals not able tomake proceeding themselves. In Rose the presence of specialist individuals in the group should have been


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considered a factor in favour of standing the agglomeration of individuals might have a standing whichanyone individual lacked. In Ex p Greenpeace Greenpeace was entitled to challenge Sec of state s decisionas to discharge of radioactive waste, if they didn t have standing, an application would have to be made by anemployee or neighbour of the establishment who would not be as qualified (Rose not followed). In liberalising

the requirement of standing for interest groups further; Ex p World Development Bank Whereas inGreenpeace individual members of Greenpeace would have been directly affected by the testing, no individual

member of the WDM was any more affected by the grant to build a powerstation than the public. Neverthelessthe court held WDM had sufficient interest due to; the merits of the claim (the impugned decision was

unlawful), the importance of vindicating the rule of law, the importance of the issue raised, the likely absence ofany other challenger, the prominent role of these claimants in giving advice with regard to all.

Today, this type of litigation is valued, the court ought not to decline jurisdiction to hear a claim for JR

on the ground of lack of standing to any responsible person or group seeking on reasonable grounds tochallenge the validity of the govt action, this is emphasised by the ability of 3

rdparty intervention.

The court ought not to decline jurisdiction to hear a claim for JR on the ground of lack of standing to any

responsible person or group seeking, on reasonable grounds, to challenge the validity of government action. Thegood sense of this approach is emphasised by the ability of the courts to give permission to a 3

rdparty in the

proceedings to assist the courts, which is happening with increasing frequency.

The pressure group must however act as a friend of the court , meaning it conduct in making an applicationhas to be controlled with particular strictness especially as regards the requirement that application forpermission be made promptly and in any event within three months of the impugned decision. The oppositionleader in the Jamaican case ofGolding v Simpson-Miller decision 2008, failed to act as a friend of the court and

delayed action to make submission beyond the fourteen day grace period given by the court and as such herprior favourable ruling on locus standi was properly examined with a unanimous court holding that she has no

interest and the case should be dismissed.

(C)Interested parties and Interveners(i) Interested parties (they are parties to the claim, they may appeal)Persons other than the claimant and defendant may participate in a claim for JR. Interested parties ie. (upon

whom the claimant is obliged to serve the claim form, and who should receive a letter before the claim isstarted) any person (beside claimant or defendant) directly affected by the claim, being inevitably affected

by the outcome of the claim for JR is insufficient. Also, it must be affected without the intervention of anyintermediate agency. Interested parties are parties to the claim and may therefore appeal against the judgment of

the court.

(ii)IntervenersA person may apply for permission to make written and/or oral submission at the hearing of the JR. May

include, campaign groups, gov t deps, business enterprises indirectly affected by outcome of claim. These may

enhance court s decision-making; provide additional evidence, expertise etc.The Main criterion ought to be whether would-be interveners, through their expertise are likely to assist

the court in understanding either the legal issues or the factual basis of the claim and the consequences

that may flow from the courts judgement.

Instead of merely intervening, in some circumstances a person may seek to be joined as a second claimant or

defendant. The same criteria should apply. The advantages of becoming a party are that you may obtain relief ifyou succeed or appeal if you do not. The principle disadvantage is the possible liability for costs.


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Why have the courts adopted such a liberal view of standing in relation to interested parties and interveners?

Corner House council - In the liberalisation of rules of standing in JR cases, Lord Diplock, NationaFederation said in justifying the modern approach to standing and purpose of JR "It would be a grave lacuna in

our system of public law if a pressure group or even a single public-spirited taxpayer, were prevented byoutdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the

rule of law and get the unlawful conduct stopped. A-G oftentime fail to use his pwr against govt. DepartmentOfficers/departments of central govt are accountable to Parliament for what they do so far as regards efficiency

and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulnessof what they do, who is the only judge." It was also said in this regard the court must be mindful not to allow

cost to inhibit the value of such liberal action.

Belize Alliance of Consevation NGO (BACONGO) v Department of Environment (DoE) [2004] UKPC: -CJ did not make an order as to cost against applicant (bacongo) recommending them for bringing the action in

the public interest although he did not rule in their favour. Bacongo appealed, the CA ruled against them andoncemore did not award cost. Bacongo appealed to PC, the PC ruled against them and this time say they would

award cost based on the submission of the parties.

Fisherman and Friends of the Sea v Environment Management Authority [2005] UKPC 32: The FFS was

allowed to sue the EMA because based on the liberal generous interpretation of sufficient interest it was held tohave interest. It was a non-profit group formed by over 20,000 people. The PC accepts that FFS has standing.

3. DEFENDANTS AND DECISIONS SUBJECT TO JUDICIAL REVIEW(a)Range of Authorities subject to Judicial Review

(i) Cabinet:Williams Construction Ltd v AG of Barbados (1994) 45 WIR 94

Lord Bridge: When the cabinet exercises a specific statutory function which, had it been conferred on a ministerinstead of the Cabinet would unquestionably have been subject to JR, their Lordships can see no reason in

principle why the Cabinet s exercise of the function should not be subject to JR to the same extent and on thesame grounds as the minister s would have been.HMB Holdings v Cabinet of Antigua and Barbuda (2007) UKPC 17

The question here is whether the Cabinet s decision is open to review at all, having regard to the terms ofsection 3(1) of the Land Acquisition Act. The Cabinet s decision as to what is a public purpose and that theland is required for that purpose is not justiciable: Spencer v Attorney General[1999] 3 LRC 1, per Byron CJ(Ag) at pp 18-19. But this does not mean that the decision is immune from judicial review. Their Lordships

therefore reject the respondents argument that judicial review of the Cabinet s decision is not available. It isopen to HMB to challenge the decision on the ground that it was irrational. The test of irrationality will be

satisfied if it can be shown that it was one which no sensible person who had applied his mind to the question to

be decided could have arrived at.

- As Lord Wilberforce explained in Anisminic v Foreign Compensation Commission [1969] 2 AC 147207D-F, however widely the field in which a decision-maker operates is defined by statute, there arealways certain fundamental assumptions which necessarily underlie the remission, or delegation, of a

power to decide such as the requirement that a decision must be made in good faith. An examination ofits proper area is not precluded by a clause which confers finality on its decisions. Clauses of that kind

can only relate to decisions which have been given within the field of operation that has been entrustedto the decision-maker. This means that all three grounds for judicial review which Lord Diplock


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identified in Council of Civil Service Unions v Minister for the Civil Service [1985] 1AC 374, may beinvoked illegality, irrationality and procedural impropriety.

- Cabinet still has a very broad function conferred upon it by the constitution, which may be immunefrom JR.

- When a policy making organ, such as the cabinet undertakes to perform administrative functions whichhave been statutorily conferred, then it can t escape JR.

(ii) The Prerogative of MercyThe courts recognise that the Crown possesses common law powers and immunities. Untilthe mid-1970s the

courts took the view that the exercise of prerogative powers fell outside the crt s supervisory jurisdicitionexcept in the narrowest sense of determining whether a prerogative pwr existed. The crts werenot normally

prepared to examine the appropriateness or adequacy of the grounds for exercing the pwr, or the fairness of theprocedure followed before the power was exercised (de Frietas v Benny [1976] AC 239 at 247-8).

In the GCHQ case [1985], the majority of the HOL held it was no longer constitutionally appropriate todeny the court supervisory jurisdiction over a govt. decision merely because the legal authority for that decision

rested on prerogative rather than statutory powers. The new approach is to seek whether the particular case thesubject matter is justiciable or not.

Lewis v Attorney-General(2001)The decisions of the BPC was held reviewable and that was right on this point. The ouster clause in section77(4) of the Constitution did not bar review by the courts of decisions of the BPC for errors of law, breaches of

natural justice or alleged breaches of the Constitution. This decision over-rules Lord Diplock in De Frietaswhere he held that this pwr is at the sole discretion of the crown. He said prerogative power begins where legal

rights end.Reckley No. 2 Lord Goff of Chieveley confirmedDe Frietas.

The Privy Council confirmed Forte JA s dicta: You can t have protection of the law unless you enjoy due process Although decisions of the Governor General in the exercise of Prerogative of Mercy are not justiciable, nevertheless the

Courts can in accordance with the procedural fairness guaranteed by the Constitution, require the Governor General toconsider matters that by virtue of the law and the Constitution, he is mandated to consider in coming to his decision. In those

circumstances even though the recommendation of the Commission are not binding on the Governor General in the exerciseof the Prerogative of Mercy, given the terms of the Treaty which the Government ratified, the Privy Council ought to await the

result of the petition, so as to be able to give it consideration in determining whether to exercise the Prerogative of Mercy.

(iii) The discretion of the Director of Public ProsecutionShama v Brown-Antoine [2006] UKPC 57

The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied that there isan arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary

bar such as delay or an alternative remedy: R v Legal Aid Board, Ex p Hughes (1992) 5 Admin LR 623, 628;Fordham,Judicial Review Handbook, 4th ed (2004), p 426. But arguability cannot be judged without reference

to the nature and gravity of the issue to be argued. It is a test which is flexible in its application

The CJ asked for JR of DPP s decision to prosecute him saying there was a reasonable basis for concluding thathe Deputy DPP s decision or advice was influenced by political pressure. The court disagrees but importantlyhold that it is well established that a DPP s decision to prosecute is ordinarily susceptible to judicial review, andsurrender of what should be an independent prosecutorial discretion to political instruction (or, we would add,

persuasion or pressure) is a recognised ground of review: Matalulu, above, pp 735-736; Mohit v Director ofPublic Prosecutions of Mauritius [2006] UKPC 20, paras 17, 21. It is also well-established that judicial review


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of a prosecutorial decision, although available in principle, is a highly exceptional remedy. The Courts arehowever very reluctant to disturb decisions to prosecute by way of JR since (1) a DPP s decision may involvepolicy and public interest consideration which a court has neither constitutional nor practical wherewith toasses; (2) JR will cause delay in criminal trials; (3) the desirability of all challenges taking place in the criminal

court; (4) the blurring of executive role of DPP and Judicial function of court.

NB:- There is an obvious need to set a boundary for practical and constitutional reasons on the reach of

the admin crt- The clear rationale from these cases is that the court have adopted a more liberal stance towards

authorities subject to JR in comparision to its earlier stance inDe Frietas; in this modern stance howeverthe court still seeks to strike an effective balance between its wish to enforce the rule of law and its fear

that applicants are just seeking to abuse its process as seen in the Sharma andGolding v Simpson-Miller[2008] cases.

- The courts have accepted the fact that Parliament and the executive makes policy decision and its role isnot to substitute its views on what is good decision with those of lawful decision makers but to ensure

that the due process as set out in the statue conveying power is followed.

(b)Judicial Review of Public functions(i) What is a public function?

Case: R v. Panel on Take-Overs and Mergers ex p Datafin plc [1987] 1 ALL ER 504

Facts: The Panel on Take-overs and Mergers was a self-regulating unincorporated association, which devised andoperated the City Code on Take-overs and Mergers prescribing a code of conduct to be observed in the take-overs of

listed public companies. The panel had no direct statutory, prerogative or common law powers, nor were its powers basedsolely on consensus, but they were supported and sustained by certain statutory powers and penalties introduced after the

inception of the panel. In the course of a contested take-over for a company (M), the applicants and another company(NO) mounted rival bids and at a critical time in the bidding an investment institution (KIO) purchased shares in M at a

price above the maximum which, under the terms of the code, NO was permitted pay. KIO subsequently committed those

shares to NOs offer. The applicants complained to the panel that NO and KIO had acted

in concert

, contrary to theterms of the code, because KIO was one of the core underwriters to NO s bid and had a significant interest in the success

of NO s bid because its underwriting fee was directly related to the success or failure of the bid. The panel rejected the

applicants complaint. The applicants sought leave to apply for judicial review of the panel s decision but leave wasrefused on the ground that the court had no jurisdiction to entertain the application. The applicants appealed to the Court

of Appeal. On the hearing of the appeal, the panel contended (i) that the supervisory jurisdiction of the court wasconfined to bodies whose power derived solely from legislation or the exercise of the prerogative, and that therefore

judicial review did not extend to a body such as the panel, and (ii) that applications to the court in the middle of take-over

bids would create delay and uncertainty when it was essential that there should be speed, certainty and finality in rulingsaffecting financial dealings.

Held: In determining whether the decisions of a particular body were subject to judicial review, the court was noconfined to considering the source of that body s powers and duties but could also look to their nature. Accordingly, ifthe duty imposed on a body, whether expressly or by implication, was a public duty and the body was exercising public

law functions the court had jurisdiction to entertain an application for judicial review of that body s decisions. Having

regard to the wide-ranging nature and importance of the matters covered by the City Code on Take-overs and Mergers andto the public consequences of non-compliance with the code, the Panel on Take-overs and Mergers was performing a

public duty when prescribing and administering the code and its rules and was subject to public law remediesAccordingly, an application for judicial review of its decisions would lie in an appropriate case


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The applicants application for leave to apply for judicial review would be refused since on the facts there had been noillegality, irrationality or procedural impropriety in the decision of the panel, which had correctly approached the matteron the basis of the code s definition of acting in concert The Panel is without doubt performing a public duty and an important one. This is clear from the expressed willingness

of the Secretary of State for Trade and Industry to limit legislation in the field of take-overs and mergers and to use thepanel as the centrepiece of his regulation of that market.

In this context I should be very disappointed if the courts could not recognise the realities of executive power and

allowed their vision to be clouded by the subtlety and sometimes complexity of the way in which it can be exerted.

No one could have been in the least surprised if the panel had been instituted and operated under the direct authorityof statute law, since it operates wholly in the public domain. Its jurisdiction extends throughout the United Kingdom. Its

code and rulings apply equally to all who wish to make take-over bids or promote mergers, whether or not they aremembers of bodies represented on the panel.

The panel is a truly remarkable body, performing its function without visible means of legal support. But, the pane

wields enormous power. It has a giant s strength. The fact that it is self-regulating, which means, presumably, that it isnot subject to regulation by others, and in particular the Department of Trade and Industry, makes it not less but moreappropriate that it should be subject to judicial review by the courts.

So long as there is a possibility, however remote, of the panel abusing its great powers, then it would be wrong for thecourts to abdicate responsibility.

Of course the source of the power will often, perhaps usually, be decisive. If the source of power is a statute, or

subordinate legislation under a statute, then clearly the body in question will be subject to judicial review. If, at the

other end of the scale, the source of power is contractual, as in the case of private arbitration, then clearly thearbitrator is not subject to judicial review

But in between these extremes there is an area in which it is helpful to look not just at the source of the power but atthe nature of the power. If the body in question is exercising public law functions, or if the exercise of its functions have

public law consequences, then that may, as counsel for the applicants submitted, be sufficient to bring the body within thereach of judicial review. It may be said that to refer to public law in this context is to beg the question. But I do notthink it does. The essential distinction, which runs through all the cases to which we referred, is between a domestic or

private tribunal on the one hand and a body of persons who are under some public duty on the other.

Wade: New Vistas of Judicial ReviewIn discussing the case ofR v. Panel on Takeovers and Mergers, ex parte Datafin plc, the Master of the Rolls noted that the

panel is without visible means of legal support. It has neither statutory, prerogative, nor common law powers, nor is itin contractual relationship with the commercial community who are expected to obey the code. The panel s chairman and

his deputy are appointed by the Bank of England and its members by a variety of city bodies such as the Council of the

Stock Exchange and the Accepting Houses Committee. It is unincorporated and lacks legal personality. It is a typicaself-regulating body of the kind dear to the heart of the business community. But de facto it wields powers of economiclife or death, since offenders against the code (as adjudged by the panel itself) may be banned from the stock exchange or

proceeded against by the Department of Trade or Industry.

Issue: Can there be a remedy against misuse of great, extra-legalpower? The court answered yes and said that the pane

was subject to judicial review.

The take-over panel had no positive governmental component, except indirectly through the two bank of Englandappointments and its rules were only approved by itself.

The Sec. of State intended to use the panel as the centrepiece of his regulation of the market and refrained fromlegislating in that field.

The Court noted that it should recognise the realities of executive power by treating the panel as part of themachinery of government control. Consequently, it can review the panel s interpretation of its own code of rules

and ensure that it acts reasonable, and observes the principles of natural justice.


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The policy of the court seems to be that no sort of public authority, whetherde jure orde facto should be allowedto contract out of the legal system.

The court will not let itself be ousted from its duty to superintend public authorities even by an Act of ParliamentAnisminic.

The judicial instinct is to fight on all fronts against uncontrollable power; and although there will always be agreat deal of power in human affairs which no law will ever control, that is no reason for not annexing newterritory whenever possible, and for not protecting the public against abuse.

The Master of the Rolls indicated that possibly the boundaries for the courts are where they may be excluded fromthe jurisdiction of bodies whose sole source of power is a consensual submission to its jurisdiction.

Lloyd L.J. noted that the essential distinction . . . is between a domestic or private tribunal on the one hand and abody of persons who are under some public duty on the other.

The categories of judicially reviewable powers are never closed, the system remains open-ended, and newterritory can be annexed to the judicial empire as opportunities arise.

Instead of looking for dubious sources of authority, the Court now stresses that sources are irrelevant, and that althat matters is the exercise of non- contractual power in the public domain. The Take-over panel has thus

acquired legislative power w/o the aid of statute, charter, contract . . . and there is no minister responsible.

Self-created powers of legislation in the public domain w/ do not depend upon consent of parties are a new andquestionable phenomenon in a democratic constitution.

Forsyth: The Scope of Judicial Review:Public Duty

not

Source of Power

The ex p.Datafin case shows that a self-regulatory body is not beyond nor above the reach of the law. But the

significance ofex p. Datafin goes beyond this. The CA brought the actions of the Panel within the law by holding that

bodies such as the Panel which performed public duties were subject to judicial review, even though they were establishedneither under statute nor under the prerogative. Thus bodies, which exercise public functions may be susceptible to

judicial review, whatever the source of their powers.

The major difficulty with Datafin s application arose from both the source and nature of the Panel s powers. The Panel s

powers arise from the fact that the Panel enjoys wide support from many institutions in the City of London. Thejurisdictional issue therefore resolved itself into the concrete question of whether certiorari would lie against a body such

as the Panel.

What is meant by a legal authority?

It was for long assumed that legal authority meant statutory authority. So, prior to ex p. Datafin, it was arguable that legaauthority meant either statutory or prerogative authority. Since ex p. Datafin, this is plainly not the case.

Ex p Datafin makes clear that although the Panel itself has no power to affect rights, the unspoken assumption that otherbodies would act upon its decisions was sufficient to bring the Panel s decisions within the scope of certiorari.Lloyd LJ said that between the clear cases of statutory powers (where certiorari would lie) and contractual powers (where

certiorari would not lie), it is helpful to look not just at the source of the power but at the nature of the power. If the bodyin question is exercising public law functions, or if the exercise of its functions have public law consequences, then that

may . . . be sufficient to bring the body within reach of judicial review . . . The essential distinction . . . is between a

domestic or private tribunal on the one hand and a body of persons who are under some public duty on the other.

The limits of the jurisdiction:

As is illustrated by ex p Datafin, if the source of the powers has been abandoned as the determinant of their reviewabilitythen it should make no difference whether the body in question is set up by the government or not. What matters is

whether it carries out a public duty.


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Note: OReilly v. Mackman is notorious for having introduced into administrative law a principle of procedural

exclusivity: depending on whether the matter is one of public law or private law, litigants are forced to choosewhether they wish to proceed by way of an application for judicial review or whether they wish to proceed by way of anordinary action commenced by writ. Since the wrong answer could be fatal to the outcome of litigation, litigants attemp

to oust their opponents from an early stage as was the case with Datafin where it was argued that the application for

judicial review was the wrong procedure.

The CA in the UK held that a self-regulating, voluntary body which acted as a watch-dog in the city of LondonStock Exchange was subject to judicial review despite the fact that it had no visible means of support, was

founded on neither statutory, prerogative not common law powers, nor was it in a contractual relationship withthe commercial community.

Donaldson MR: If the body in question is exercising public law functions, or if the exercise of its functionhave public law consequences, then that may be sufficient to bring the body within the reach of JR. The

essential distinction that runs in these cases is between a domestic/private tribunal and a body of persons whoare under some public duty or another. One must look not just at the source of the IOB's powers but also at the nature of its duties and the

consequences of the exercise of its powers (see in particular per Lloyd LJ at p. 847A-C). He submitted that thecrucial touchstone is the existence of public law functions; the existence of a contractual nexus is not of itself

fatal to reviewability (see per Nicholls LJ at p. 850F-H and the Bank of Scotland case).

*Prior to Datafin JR did not apply to a body whose power depended on its consent.- Sir John Donaldson Mr (with whose reasons both Lloyd and Nicholls L JJ agreed) at p. 847A-G. This is

because a body whose powers depend on consent is not a public body and a person aggrieved hasalternative private law remedies, including leaving the IOB or possibly (though he makes no such

admission) suing the ombudsman for breach of contract. Judicial review jurisdiction is not conferredbecause the consequences of a private body's decisions affect the public (see Law v National Greyhound

Racing Club [1983] 1 WLR 1302and the Jockey Clubcase).- See Summary ofYL v BCC (Birmingham City Council) and Others [2007] UKHL 27in Cases

Public funding- necessary but not sufficient indicator. (2) Whether body is exercising Statutory powers, (3)Coercive and regulatory powers (4) Delegation whether body is taking the place of govt. (5) whether body isproviding a public service (6) Cores state responsibilities whether function is instrically governmental (7)whether there is an obligation to carry out matter in public interest (8) Government control (9) the extent to

which the state, directly or indirectly regulates, supervise and inspect the performance of the function inquestion. (10) risk of an improper performance of function violating application HR.

The above test is now taken into account by courts when determining if a body is public body and as suchamenable to JR. The approach is restrictive and fails to take into consideration power of delegating and the

ease with which a government can delegate out its responsibility to the private branch.

R (on application of West) v Lloyds of London (2004)

On December 23, 2002, Dr Julian West issued a judicial review claim form in which he sought to impugn fourdecisions of the Business Conduct Committee ( BCC ) of Lloyd's of London to approve four minority buy-outsof his memberships or potential memberships in four syndicates at Lloyd's. These decisions were made in

October and November 2002. On May 6, 2003, Dr West appeared in person before Keith J. who refusedpermission to apply for judicial review on the grounds that Lloyd's was not a public authority and that the

decisions of one of its committees were not made in the exercise of a public function. On October 3, 2003, theCourt of Appeal granted him permission to apply for judicial review and directed that the question whether
http://web2.westlaw.com/find/default.wl?vc=0&ordoc=1993253667&rp=%2ffind%2fdefault.wl&DB=UK%2DCASELOC&SerialNum=1983031707&FindType=Y&AP=&fn=_top&rs=WLW9.01&ifm=NotSet&mt=WestlawUK&vr=2.0&sv=Splithttp://web2.westlaw.com/find/default.wl?vc=0&ordoc=1993253667&rp=%2ffind%2fdefault.wl&DB=UK%2DCASELOC&SerialNum=1983031707&FindType=Y&AP=&fn=_top&rs=WLW9.01&ifm=NotSet&mt=WestlawUK&vr=2.0&sv=Splithttp://web2.westlaw.com/find/default.wl?vc=0&ordoc=1993253667&rp=%2ffind%2fdefault.wl&DB=UK%2DCASELOC&SerialNum=1983031707&FindType=Y&AP=&fn=_top&rs=WLW9.01&ifm=NotSet&mt=WestlawUK&vr=2.0&sv=Splithttp://web2.westlaw.com/find/default.wl?vc=0&ordoc=1993253667&rp=%2ffind%2fdefault.wl&DB=UK%2DCASELOC&SerialNum=1993253828&FindType=Y&AP=&fn=_top&rs=WLW9.01&ifm=NotSet&mt=WestlawUK&vr=2.0&sv=Splithttp://web2.westlaw.com/find/default.wl?vc=0&ordoc=1993253667&rp=%2ffind%2fdefault.wl&DB=UK%2DCASELOC&SerialNum=1993253828&FindType=Y&AP=&fn=_top&rs=WLW9.01&ifm=NotSet&mt=WestlawUK&vr=2.0&sv=Splithttp://web2.westlaw.com/find/default.wl?vc=0&ordoc=1993253667&rp=%2ffind%2fdefault.wl&DB=UK%2DCASELOC&SerialNum=1993253828&FindType=Y&AP=&fn=_top&rs=WLW9.01&ifm=NotSet&mt=WestlawUK&vr=2.0&sv=Splithttp://web2.westlaw.com/find/default.wl?vc=0&ordoc=1993253667&rp=%2ffind%2fdefault.wl&DB=UK%2DCASELOC&SerialNum=1983031707&FindType=Y&AP=&fn=_top&rs=WLW9.01&ifm=NotSet&mt=WestlawUK&vr=2.0&sv=Splithttp://web2.westlaw.com/find/default.wl?vc=0&ordoc=1993253667&rp=%2ffind%2fdefault.wl&DB=UK%2DCASELOC&SerialNum=1983031707&FindType=Y&AP=&fn=_top&rs=WLW9.01&ifm=NotSet&mt=WestlawUK&vr=2.0&sv=Split


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Lloyd's was amenable to judicial review, whether by virtue ofs.6 of the Human Rights Act 1998( the HRA )or otherwise, in relation to its functions under scrutiny in this case, be reserved to it.

The reason why the Court took this unusual step was that there had been a series of cases in what is now the

Administrative Court which upheld the proposition that Lloyd's did not operate in the public sphere, at any ratein relation to those of its functions that were under consideration in those cases, and although the coming into

force of the HRA added a new dimension to the debate, it was thought inappropriate to remit the issue back tothe Administrative Court in the light of the strong line of earlier authority at that level.

Held: dismissing the appeal,

(1) Lloyd's was not amenable to judicial review, whether by virtue ofs.6 of the HRAor otherwise, in relation tothose of its functions that were under scrutiny in this case;

(2) The fact that Lloyd's corporate arrangements were underpinned by a private Act of Parliament and not by

the Companies Actwas in no way unique and was certainly not dispositive of whether or not Lloyd's wasamenable to judicial*763 review. A number of insurance companies were incorporated by private Act o

parliament. The Court was entirely satisfied that the line of cases at Divisional Court level which related to theprivate law status of Lloyd's in relation to functions such as were in issue in this case were correctly decided

The coming into force of the Financial Services and Market Act 2000, with its more intrusive regulatory regime(so far as Lloyd's was concerned) made the position even clearer, if greater clarity were needed;

(3) the decisions under challenge were concerned solely with the commercial relationship between Dr West and

the relevant managing agents, and this was governed by the contracts into which he had chosen to enter. Thosedecisions were of a private, not a public, nature. They have consequences for Dr West in private, not public,

law. R (Tucker) v National Crime Squad [2003] EWCA Civ 2 applied;

(4) the functions of Lloyd's under review in this case were totally different from the functions of the Takeover

Panel that were under consideration in R. v Panel on Take-overs and Mergers, Ex p. Datafin Plc [1987] Q.B815. The Panel exercised regulatory control in a public sphere where governmental regulatory control was

absent. This case was concerned with the working out of private contractual arrangements at Lloyd's which wasitself subject to external governmental regulation;

(5) turning next to the effects ofs.6(1) of the HRA. The objectives of Lloyd's were wholly commercial. The

nature of Lloyd's was not governmental, even in the broad sense of that expression. If any question arose as tothe performance of any obligation on the part of the state to protect its investors, it was the FSA which was the

governmental organisation which would be answerable to the Strasbourg Court, and not Lloyd's. PoplarHousing & Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595 applied;

(6) although, as Lord Hope observed in Aston Cantlow PCC v Wallbank [2003] UKHL 37; [2003] H.R.L.R. 28

the case law on judicial review did not provide a conclusive answer to the applicability of s.6 of the HRA, there

was nothing to comfort the applicant in any of the cases ofPoplar,R. (on the application of Heather) v LeonardCheshire Foundation [2002] EWCA Civ 366; [2002] H.R.L.R. 30orAston Cantlowto which the Court herereferred. It was the FSA which performed governmental functions in these matters, not Lloyd's. The fact thatLloyd's regulates its members' activities in the way it does as a result, in part, of its desire to avoid a more

intrusive governmental regulatory regime could not possibly convert it into a body exercising public functionsitself within the meaning of Strasbourg case law. CONCLUSION by Brooke L.J.: For these reasons I have

reached the same conclusion as Keith J. (see para.[1] above) and would make a declaration that Lloyd's is notamenable to judicial review, whether by virtue ofs.6 of the HRAor otherwise, in relation to those of its

functions that are under scrutiny in this case.
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R. v Insurance Ombudsman Bureau Ex p. Aegon Life Assurance Ltd[1994] C.L.C. 88

This was an application by an insurance company for judicial review of 23 decisions of the insurance

ombudsman in which he made awards against the applicant company. The court was asked to determine firstwhether the court had jurisdiction in relation to awards of the insurance ombudsman.

The Insurance Ombudsman Bureau ( IOB ) was established in 1981 by three insurance companies to resolvecomplaints by customers. It was an unlimited company without share capital. Its board of directors wasappointed exclusively from senior employees of member companies, with responsibility for finance and

membership. An independent council with representatives from inside and outside the industry supervised theIOB. The council appointed the Ombudsman. He alone was empowered to investigate and determine

complaints, disputes and claims made in connection with or arising out of (1) policies of insurance and (2)contracts which constituted investment business as defined by the Financial Services Act 1986 effected with

members of the IOB. The IOB's only powers over member companies were contractual, membership beingvoluntary, determinable by the member at six months' notice. In December 1993 the IOB had 44 members, 90

per cent of companies eligible. The IOB had power to award compensation against members, but no power toenforce awards. Unders. 10of the 1986 Act, the Life Assurance and Unit Trust Regulatory Organisation

(LAUTRO) was recognised as a self-regulating organisation regulating the carrying on of investment businessfrom A Day (29 April 1988). Since A Day LAUTRO had recognised the IOB as performing a complaintsinvestigation function for the purposes ofSch. 2, para. 6(2)of the 1986 Act. LAUTRO encouraged but did notcompel its members to join the IOB. All the policies in dispute were entered into between 1985 and 1987

(before A Day ) but the complaints were all made after A Day . In each case the ombudsman made an awardagainst the applicant insurance company, which sought judicial review of one specimen decision.

Held, dismissing the application: 1. The source of the IOB's power over members was solely contractual and itexercised no government functions. Even if it could be said that it had become woven into a governmental

system, its decisions were of an arbitrative nature in private law and not, save very remotely, supported by anypublic law function. Therefore the IOB was not a body susceptible to judicial review. 2 It followed that the

court had no jurisdiction in relation to awards of the insurance ombudsman.

YL v Birmingham City Council and others (Secretary of State for Constitutional Affairs

intervening)

The appellant (YL) is an 84-year-old woman with Alzheimer's disease. She and her family have lived in the

area governed by Birmingham City Council ( the council ) for many years. Since January 2006 she has beenliving in a nursing home owned and run by the second respondent ( the company ), a limited company whichprovides approximately 29,000 care home beds in the United Kingdom. Of these approximately 80% are fundedby local authorities. When these proceedings began, 60 of the 72 residents in the appellant's home, including the

appellant, were funded by local authorities and 12 paid privately. Her residence is largely funded by the firstrespondent, Birmingham City Council ( the council ). It is covered by a three way placement agreemensigned on 20 February 2006 by Southern Cross as the provider [homeowner] , the council and the thirdrespondent, OL (YL's daughter), acting on behalf of YL, as well as by a third party funding agreement between

the council and OL. Under these agreements Southern Cross receives a basic fee from the council and a top-upfee from OL. A further tripartite agreement dated 10 March 2006 records that Southern Cross's fee was 478
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per week including the top up fee of 35 per week, and that each party [ie the council and YL/OL] will only beliable for their own agreed proportion . The House of Lords upholding the view of the Court of Appeal stated

that Southern Cross in providing care and accommodation for YL was not and is not exercising functions ofa public nature within section 6(3)(b) of the Human Rights Act 1998. If further protection or regulation is

considered to be necessary in respect of privately owned care homes, in addition to that which is available undercommon law or statute and for which local authorities may contract as indicated in para 80 above, the means

may already be available to achieve this under the Care Standards Act 2000 . And, if additional protection is tobe achieved by statutory means, it is no matter for regret that this should be done without distinguishing

between residents in one and the same care home who on the one hand arrange and fund their own care andaccommodation and others who on the other hand benefit from local authority assistance to arrange and fundsuch care and accommodation. I would accordingly dismiss this appeal.

(ii) Application of Legal rules?Ex p Khan (1993) 1 WLR 909

The question in this appeal is whether the power exercised by the Jockey Club is so governmental as to makethe club subject to judicial review even though it is a private members club? The court discussed all the factors

that would make a body such as this subject to JR but in concluding say that since remedy was available outsideof JR, claimant should seek these remedies and as such they refused to out rightly say what they clearly implied

that the club is subject to JR. Farqushon LJ: The courts have always been reluctant to interfere with the controlof sporting bodies over their own sports and I do not detect in the material available to us any grounds for

supposing that, if the Jockey Club were dissolved, any governmental body would assume control of racing. Barbados Cricket Association v Pierce (1999) 57 WIR 29Dispute arose over the inclusion of a disqualified man (on Wanderer s team) in the game between Wanderesand Barbados Cricket League. Wanderers won the match and BCL filed complaint to BCA who decided thatcomplaint filed too late Wanderers will still get the winning points. Another match was played earlier between

Carlton and said Wanderers team. The BCA at first dismissed the appeals of BCL and Carlton but later ruled intheir favour awarding those team Wanderer s winning point in effect barring Wanderers from the quater-finalsof the Fire Cup. The defendants apply seeking JR but fails because BCA does not exercise public function.

- The Barbados Cricket Association, although incorporated by a private Act of Parliament (No 12 of1933), does not have exclusive control over cricket in Barbados and is a domestic body whose decisionsrelating to the interpretation of rules relating to cricket competitions are not of a public or governmental

nature. Accordingly, such decisions are not susceptible to judicial review under Ord 53 of the Rules ofthe Supreme Court. Further, there is no basis in Barbados law for including an application for a

declaration in an application for judicial review under Ord 53, notwithstanding the AdministrativeJustice Act, s 5(2)(d).

4. JUSTICIABILITYThe Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, has signalled a shift fromasking whether the court has jurisdiction to the court examining the justiciabillity of the issue to see if there isany merit in the claim. The Caribbean adopted this approach inRe Blake (1994) 47 WIR 174.

(i)DiscretionR v Secretary of State for the Environment, ex p. Kensington and Chelsea RLBC (1987) HLR 161

Lord Slynn: described the scope of JR: It has long been established that if the Secretary of State misinterpretsthe legislation under which he purports to act, or if he takes into account matters irrelevant to his decision or

refuses or fails to take account of matters relevant to his decision, or reaches a perverse decision, the court mayset his decision aside. Even if he fails to follow necessary procedural steps - failing to give notice of a hearing
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or to allow an opportunity for evidence to be called or cross-examined, or for representations to be made or totake any step which fairness or natural justice requires, the court may interfere. The legality of the decision and

the procedural steps must be subject to sufficient judicial control. ... Lord Slynn continued that he was furtherof the view that a court had power to quash an administrative decision for a misunderstanding or ignorance of

an established and relevant fact ( 51-53 of the judgment, and see also Lord Nolan at 61, Lord Hoffman).

(ii) Questions of National SecurityCCSU v Minister of the Civil Service [1985] AC 374

The sole issue is whether the decision on which the instruction was based was reached by a process that was fairto the staff at GCHQ. If no issue of national security arose, the decision-making process would have been

unfair. The question is on the evidence. The decision on whether the requirements of national security outweighthe duty of fairness in any particular case is for the government and not for the courts; the government alone has

access to the necessary information, and in any event the judicial process is unsuitable for reaching decisions onnational security. If the decision is successfully challenged, on the ground that it has been reached by a process

which is unfair, then the government is under a an obligation to produce evidence that the decision was in factbased on grounds of national security.

Facts: On seven occasions between 1979 and 1981 industrial action was taken at GCHQ causing disruptionOne such disruption in 1981 had resulted in part of the operations of GCHQ being virtually closed down. On

22 December 1983 the Minister for the Civil Service issued an oral instruction to the e

admin wksht 1 -notes and cases

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