Judicial Review Remedies in English Law: Interim and Final Orders, Schemes and Mind Maps of Remedies

Download Judicial Review Remedies in English Law: Interim and Final Orders and more Schemes and Mind Maps Remedies in PDF only on Docsity! 885 CHAPTER 18 JUDICIAL REVIEW REMEDIES SCOPE 18–001This chapter examines the public law remedies—interim and final—that may be made on a claim for judicial review and the extent of the court’s discretion to withhold them. The Administrative Court has at its disposal a range of powers to grant remedial orders in relation to a claim for judicial review, stemming from statutory and common law sources. • Supreme Court Act (Senior Courts Act) 1981 s.37 and CPR Pts 25 and 54 govern interim remedies. These include interim injunctions, stays of proceedings and interim declarations. • Supreme Court Act 1981 (Senior Courts Act) ss.29 and 311 and CPR Pt 54 regulate the main types of final remedy in judicial review claims. The various remedies—prohibiting, mandatory and quashing orders, injunctions and declarations—may be granted either singly or in combination.2 • The common law may provide a right to damages, restitution or recovery of a sum due where there has been an unlawful administra- tive act—but only if the elements of a recognised tort (typically negligence, breach of statutory duty and misfeasance of public office) or other cause of action can also be established.3 In practice, claims for damages and other monetary remedies are usually determined at a separate hearing after the public law issues have been decided. • The Human Rights Act 1998 s.4 (declarations of incompatibility) and s.8 (damages for actions breaching Convention rights)4 provide specific remedies in judicial review and other claims in this context.5 • European Community law requires additional and modified remedies to be available in order to ensure the full protection of Community law rights.6 1 As amended on May 1, 2004 by The Civil Procedure (Modification of Supreme Court Act 1981) Order 2004 (SI 2004/1033) (which altered the names of the remedies). 2 Supreme Court Act (Senior Courts Act) 1981 s.31(2). 3 See Ch.19. 4 See 19–025. 5 See 13–045 The text is set out in Appendix F. 6 See 14–051. FUNCTIONS OF REMEDIES 886 FUNCTION OF REMEDIES 18–002 The modern era of English judicial review is marked by two changes in the way remedial orders are made and thought about. First, prior to the reforms to the judicial review system in 1978,7 a plethora of technical rules restricted the circumstances in which claimants could be granted remedies in public law. Now the courts are reluctant to let the former intricacies and obscurities hamper the provision of effective redress. The courts adopt a flexible approach—though the willingness to innovate has not extended as far as accepting the radical suggestion that there is no longer any need for remedial orders specific to judicial review.8 18–003 Secondly, before the modern era of judicial review, the limits of the High Court’s supervisory jurisdiction were defined by placing restrictions on the situations in which the particular remedies of certiorari, prohibition and mandamus could be granted. As we have seen, the approach today is a much broader one: the boundaries of the court’s supervisory powers are determined by focusing on the source of legal authority and the character of the function,9 and whether the subject-matter of the claim is justiciable.10 Little of the old case law on the reach of each remedy is of much practical relevance.11 The question to be addressed is therefore no longer, ‘‘does certiorari lie against such a decision?’’ but rather whether the impugned decision is one made by a public authority in the exercise of a public function and is justiciable. Today it can be said that the remedial orders at the disposal of the court perform the subsidiary role of giving practical effect to the judgment of the court. 18–004 The importance of remedies should not, however, be under estimated. In the first of the Hamlyn lectures, published as Freedom under the Law, Denning J. saw the biggest challenge facing the judiciary the fashioning of new remedies to protect our freedoms. As this and the next Chapters will make clear, this is one challenge that the judiciary, with the help of Parliament and academics and practitioners, have to a considerable extent successfully met. REMEDIES AGAINST THE CROWN AND MINISTERS No coercive remedies against the Crown directly 18–005 The prerogative orders (mandatory, prohibiting and quashing orders) and injunctions cannot be granted against the Crown directly.12 Declaratory relief is however available. The justification given for this restriction is 7 See 15–087. 8 D. Oliver, ‘‘Public Law Remedies and Procedures—Do We Need Them?’’ [2002] P.L. 91. 9 Ch.3. 10 See 1–025; 11–014. 11 There is no need, for example, to inquiry whether the decision was a ‘‘judicial one’’: see Appendix B on the classification of functions. 12 On the nature of the Crown, see 3–037. JUDICIAL REVIEW REMEDIES 889 In exceptionally urgent cases, application may be made to the out-of-hours judge.25 Where a request for an interim remedy is refused on the papers, a practice has developed of allowing the application to be renewed at an oral hearing.26 Interim injunctions 18–011An interim injunction is one granted before trial, for the purpose of preventing any change in the status quo from taking place until the final determination of the merits of the case and to ensure that any final order that may be made at the full hearing of the claim should not be rendered nugatory. Interim injunctions may be mandatory27 or prohibitory. General approach 18–012The general approach to the grant of interim relief in civil claims was established in 1975, when the House of Lords held that a claimant need no longer establish a prima facie case, but instead demonstrate that there is a serious issue to be tried, i.e. a claim that is not frivolous or vexatious and discloses a reasonable prospect of success.28 The claimant having shown that there is, at the least, a serious issue to be tried, the court will then consider whether it is just and convenient to grant an interim injunction. This involves the court assessing the relative risks of injustice by deciding whether there is an adequate alternative remedy in damages, either to the claimant seeking the injunction29 or the defendant in the event that an injunction is granted against him.30 The availability of a remedy in damages to the claimant will normally preclude the grant to him of an injunction. Even if damages are available, they may not be an adequate remedy.31 If there is doubt about either or both the claimant’s and/or the defendant’s remedy in damages the court will proceed to consider what has become known as the ‘‘balance of convenience’’. The factors to be taken into consideration will vary from case to case. The aim of this approach is to 25 For a practitioner’s view, see K. Marcus, ‘‘Urgent Applications, Interim Relief and Costs’’ [2004] J.R. 256. 26 R. (on the application of Q) v Secretary of State for the Home Department [2003] EWHC 2507 at [10]. 27 See, e.g. R. (on the application of S) v Norfolk CC [2004] EWHC 404; [2004] E.L.R. 259 (local education authority ordered to continue funding child’s place at a residential college). 28 American Cyanamid Co v Ethicon Ltd [1975] A.C. 396. As the editors of the White Book point out, since the coming into force of the CPR the context in which interim remedies are sought has changed, not least because there is now encouragement for the early resolution of issues, and at some point the HL’s approach may need to be reconsidered: White Book 2007, para.25.0.1. 29 For example, in the event of the interim injunction being refused, but the claimant succeeding at trial. 30 For example, if the interim injunction is granted but the claimant fails at trial. The grant of an interim injunction is usually conditional on the claimant giving an undertaking to pay damages in these circumstances. 31 See, e.g. R. v Kensington and Chelsea RLBC Ex p. Hammell [1989] 1 Q.B. 518. INTERIM REMEDIES 890 avoid the court having to consider difficult questions of law or fact at the interim stage. Approach in judicial review claims 18–013 The old prima facie case test continues to apply, in effect, in many judicial review cases32 because a prerequisite to the grant of an interim injunction is normally the grant of permission, where the threshold often approximates more to the need to show a prima facie case than merely a potentially arguable one.33 Moreover, questions as to the adequacy of damages as an adequate alternative remedy will usually be less, or not at all, relevant because of the absence of any general right to damages for loss caused by unlawful administrative action per se.34 It follows that in cases involving the public interest, for example where a party is a public authority performing public duties, the decision to grant or withhold interim injunctive relief will usually be made not on the basis of the adequacy of damages but on the balance of convenience test.35 In such cases, the balance of convenience must be looked at widely, taking into account the interests of the general public to whom the duties are owed.36 18–014 Another difference from private law proceedings is that in judicial review, there is less likely to be a dispute of issues of fact. Where the only dispute is as to law, the court may have to make the best prediction it can of the final outcome and give that prediction decisive weight in resolving the interlocutory issue.37 18–015 Others factors that may be taken into account in determining the balance of convenience include the importance of upholding the law of the land and the duty placed on certain authorities to enforce the law in the public interest.38 In the case of a challenge to the validity of a law, the court should not exercise its discretion to restrain a public authority by interim injunction from enforcing apparently authentic law unless it is satisfied, having regard to all the circumstances, that the challenge to the validity of the law is, prima facie, so firmly based as to justify so exceptional a course being taken.39 The general principle that expression of opinion or the expression and the dissemination of information will not be restrained by 32 But not all: see, e.g. R. v Secretary of State for the Home Department Ex p. Doorga [1990] C.O.D. 109; Scotia Pharmaceuticals International Ltd v Secretary of State for Health [1994] C.O.D. 241. 33 See 16–046. 34 See Ch.19. 35 R. v Secretary of State for Transport Ex p. Factortame Ltd (No.2) [1991] 1 A.C. 603 at 672– 673. 36 Factortame (No. 2) [1991] 1 A.C. 603; and R. v HM Treasury Ex p. British Telecommunica- tions Plc [1995] C.O.D. 56; cf. R. v Secretary of State for Health Ex p. Generics (UK) Ltd [1997] C.O.D. 294; 37 Factortame (No.2) [1991] 1 A.C. 603 at 660 (Lord Bridge). 38 Factortame (No.2) [1991] 1 A.C. 603 at 672. 39 Factortame (No.2) [1991] 1 A.C. 603 at 673 (Lord Goff). JUDICIAL REVIEW REMEDIES 891 the courts except on pressing grounds applies as much to a public authority which is under a duty to express an opinion as to a private individual.40 18–016The discretionary bars to the award of an injunction41 are applied with particular stringency to the claimant for interim relief, and he is in any event usually required to give an undertaking in damages lest at the trial the interim injunction is shown to have been wrongly granted and the defendant has suffered loss as a result. Many claimants are legally aided and have insufficient means to give an effective undertaking in damages. This is not a bar to the grant of interim relief,42 for the requirement of a cross-undertaking is a matter of discretion for the court. Neither ministers nor local authorities have any special exemption from giving cross- undertakings in damages, but a court is unlikely to exercise its discretion to require one where an injunction is sought in a law enforcement action.43 Stay of proceedings 18–017Under CPR r.54.10(2), the court may grant a stay of proceedings when the claimant is granted permission to proceed with a judicial review claim. Authorities are divided as to the scope and effect of such a ‘‘stay’’.44 The Court of Appeal has held that the term is apt to include executive decisions and the process by which the decision was reached and may be granted to prevent a minister from implementing a decision.45 The Privy Council has however held, obiter, that a stay of proceedings is merely an order which puts a stop to the further conduct of proceedings in court or before a 40 R. v Advertising Standards Authority Ltd Ex p. Vernons Organisation Ltd [1993] 1 W.L.R. 1289; cf. R. v Advertising Standards Authority Ex p. Direct Line Financial Services Ltd [1998] C.O.D. 20 (interim injunction granted restraining ASA from publishing adjudication). 41 See 18–048. 42 Ex p. Hammell [1989] 1 Q.B. 518; Allen v Jambo Holdings Ltd [1980] 1 W.L.R. 1252 (but note Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment (Interim Injunction) [2003] UKPC 63; [2003] 1 W.L.R. 2839 at [39], where the PC held that Allen ‘‘should not be taken too far’’ as ‘‘The court is never exempted from the duty to do its best, on interlocutory applications with far-reaching financial implications, to minimise the risk of injustice’’. In R. v Secretary of State for the Environment Ex p. Rose Theatre Trust Company [1990] 1 Q.B. 504 Schiemann J. held the court should be extremely slow to grant an injunction without a cross-undertaking in damages; see also R. (on the application of Greenpeace Ltd) v Inspectorate of Pollution [1994] 1 W.L.R. 570 at 574. 43 F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] A.C. 295; Director General of Fair Trading v Tobyward Ltd [1989] 1 W.L.R. 517; Kirklees MBC v Wickes Building Supplies Ltd [1993] A.C. 227; Coventry City Council v Finnie (1997) 29 H.L.R. 658. 44 The glossary to the CPR states ‘‘A stay imposes a halt on proceedings, apart from taking any steps allowed by the Rules or the terms of the stay. Proceedings can be continued if a stay is lifted’’. 45 R. v Secretary of State for Education and Science Ex p. Avon CC [1991] 1 Q.B. 558 at 561, 563 (Glidewell and Taylor L.JJ.) (decision of minister to make order giving school grant maintained status); and R. v Secretary of State for the Home Department Ex p. Muboyayi [1992] 1 Q.B. 244 at 258 (Lord Donaldson M.R declines to express opinion on whether Avon will survive an appeal to the HL); R. v Advertising Standards Authority Ltd Ex p. Vernons Organisation Ltd [1993] 1 W.L.R. 1289 (application for stay ‘‘in truth’’ a claim for an injunction). MANDATORY ORDERS 894 remedies for historical reasons known collectively as ‘‘prerogative orders’’.62 The court may also grant injunctions63 and declarations.64 For almost all purposes, the mandatory and prohibiting orders can now be regarded as indistinguishable in their effect from final injunctions:65 All three remedies ‘‘direct any of the parties to do, or refrain from doing, any act in relation to the particular matter’’.66 A distinctive feature of all these remedies is that the court has discretion to withhold them from a claimant even if the defendant public authority is held to have acted unlawfully.67 Remedies may be granted in combination with one and other. Mandatory orders 18–024 The modern approach to remedies—in which the function of remedial orders is simply to give effect to the judgment of the court on substance of a claim—means that it is no longer necessary at this stage to describe the kinds of decision in which mandatory orders may be granted.68 If the court has found there to be breach of a duty, a mandatory order may be granted if in all the circumstances that appears to the court to be the appropriate form of relief. Mandatory orders will not lie to compel the performance of a mere moral duty,69 or to order anything to be done that is contrary to law. 18–025 Many of the narrow technicalities which once applied to the grant of mandamus, for example, that it would not lie for the purpose of undoing that which has already been done in contravention of statute,70 no longer restrict the remedy. It has long been held to be preferable for the claimant to be able to show that he has demanded performance of the duty and that performance has been refused by the authority obliged to discharge it.71 A claimant, before applying for judicial review, should address a distinct and 62 Ch.15. In its 1994 report Administrative Law: Judicial Review and Statutory Appeals, the Law Commission argued that the Latin names for the prerogative orders obscured their functions to non-lawyers; it recommended that the Supreme Court Act 1981 be amended to renamed (Law Com. No.226, para.8.3). This suggestion was not supported by Lord Woolf in Access to Justice, para.13–065, but did find favour with the Bowman committee (see 15–097) and ss.29 and 31 of the 1981 Act were amended in 2004; see 3–016. 63 See 18–034. 64 See 18–038. 65 M v Home Office [1994] 1 A.C. 377, 415E. 66 Words used in the Australian Administrative Decisions (Judicial Review) Act 1977 s.30 which introduced a flexible range of remedies to replace prerogative writs with a view to freeing ‘‘judicial review from its emphasis on the character of the remedy sought, instead allowing the court to consider the substance of the applicant’s grievance’’ (Electoral and Administrative Review Commission, Issues Paper No.4, 1990). 67 See 18–048. 68 On issues to do with substance, see e.g. the distinction between mandatory and ‘‘directory’’ duties and powers (see 5–064); whether lack of resources may excuse failure to perform what otherwise would be a duty (see 5–152). 69 For example, to make good a military officer’s pay: Ex p. Napier (1852) 18 Q.B. 692. 70 See the 4th edition of this work, p.542. 71 T. Tapping, On Mandamus (1853), pp.282–286. JUDICIAL REVIEW REMEDIES 895 specific demand or request to the defendant that he perform the duty imposed upon him.72 Today this learning is encapsulated in the general obligation on claimants to follow the steps set out in the Pre-Action Protocol for Judicial Review, which includes writing a letter before claim.73 Quashing and prohibiting orders 18–026Historically, the orders of certiorari and prohibition had so many charac- teristics in common that they may, in their modern forms, be discussed together. The one significant difference between them is that a prohibiting order may, and usually must, be invoked at an earlier stage than a quashing order. A prohibiting order will not be granted unless something remains to be done that a court can prohibit. A quashing order will not lie unless something has been done that a court can quash. But it is sometimes appropriate to apply for both orders simultaneously—a quashing order to quash an order made by a tribunal in excess of its jurisdiction, and a prohibiting order to prevent the tribunal from continuing to exceed its jurisdiction. 18–027It has been held that the orders will not issue to persons who take it upon themselves to exercise a jurisdiction without any colour of legal authority; the acts of usurpers are to be regarded as nugatory. Where a tribunal which had power to grant cinematograph licences adopted a practice of approving building plans before the application for a licence was made, on the understanding that it would later grant the licence if it approved the plans, the courts held that certiorari and mandamus would not go to the tribunal for a refusal to approve plans, since the tribunal had no legal authority whatsoever to make provisional decisions.74 However, today, in order to remove uncertainty, a court would issue the orders to public authorities that purport to be acting in pursuance of lawful authority. In relation to a void decision, a quashing order in effect declares that it was ineffective ab initio; in the case of a voidable decision, a quashing order will deprive the decision of legal effect.75 18–028It is still not altogether clear what is the earliest stage at which a claim for a prohibiting order may be made. If want of jurisdiction is apparent, a prohibiting order may be applied for at once. If want of jurisdiction is not apparent, the claim must wait until the tribunal has actually stepped 72 cf. R. v Bristol & Exeter Ry (1843) 4 Q.B. 162, where the only demand made was premature. 73 See Appendix I. 74 R. v Barnstaple Justices Ex p. Carder [1938] 1 K.B. 385. See also Re Daws (1838) 8 A. & E. 936; R. v Maguire and O’Sheil [1923] 2 I.R. 58; and Re Clifford and O’Sullivan [1921] 2 A.C. 570 (no prohibition to court martial in state of martial law, for it is not a body exercising legal jurisdiction but an instrument for executing the will of the military commander). But for a more satisfactory result see Steve Dart Co v Board of Arbitration [1974] 2 E.C. 215 (prohibition issued to a tribunal purporting to act under legislation that did not empower its creation). 75 On the distinction between void and voidable, see 4–056. QUASHING AND PROHIBITING ORDERS 896 outside its jurisdiction (as by continuing the hearing after an incorrect determination of a jurisdictional fact) or is undoubtedly about to step outside its jurisdiction (as where it has announced its intention to entertain matters into which it has no power to inquire).76 This is the generally accepted doctrine; but doubts have sometimes been expressed about the power to grant prohibiting orders for an anticipatory excess of jurisdic- tion.77 On the other hand, there have been modern decisions in which applications for prohibiting orders have been considered even before the inferior tribunal has had the opportunity to address itself to the disputed question of its jurisdiction.78 In any event, a doubt as to whether a request for a prohibiting order is premature is likely to be resolved in the claimant’s favour if the final order of the tribunal may be protected by statute from challenge.79 Remitting the matter back to the decision-maker 18–029 Section 31(5) of the Supreme Court Act (Senior Courts Act) 1981 provides that ‘‘If, on an application for judicial review seeking a quashing order, the High Court quashes the decision to which the application relates, the High Court may remit the matter to the court, tribunal or authority concerned, with a direction to reconsider it and reach a decision in accordance with the findings of the High Court.’’ 18–030 This power to remit is useful in two main circumstances. First, where otherwise—following the quashing of a decision—the claimant would be inconvenienced by having to reapply to the public authority for a decision to be made. Secondly, where a quashing order alone might risk administra- tive inconvenience if a public authority had to start proceedings against the claimant afresh. Substituting a decision 18–031 The general principle that a court hearing a judicial review claim does not substitute its decision for the original decision-maker is subject to two specific and limited exceptions, which extend the jurisdiction of the court when quashing orders are sought. 76 Re Zohrab v Smith (1848) 17 L.J.Q.B. 174 at 176; London Corp v Cox (1867) L.R. 2 HL 239; R. v Electricity Commissioners [1924] 1 K.B. 171; R. v Minister of Health Ex p. Villiers [1936] 2 K.B. 29. See also R. v Local Commissioner for Administration for North and East Area of England Ex p. Bradford MCC [1979] Q.B. 287 (reversed in CA), where on a claim to prohibit a local commissioner from investigating certain matters, a declaration was granted that the Commissioner should not investigate complaints that did not prima facie amount to allegations of maladministration. 77 Re Ashby [1934] O.R. 421 at 431. 78 R. v Tottenham & District Rent Tribunal Ex p. Northfield (Highgate) Ltd [1957] 1 Q.B. 103, 107–108 (Lord Goddard C.J.); But a court may decline to exercise its discretion to issue prohibition before the tribunal has had an opportunity to explore the factual issues upon which its jurisdiction may depend: Maritime Telegraph and Telephone Co Ltd v Canada Labour Relations Board [1976] 2 E.C. 343. 79 R. v Minister of Health Ex p. Davis [1929] 1 K.B. 619, DC. JUDICIAL REVIEW REMEDIES 899 maintaining effective superintendence93 and it can award a prohibitory injunction to restrain the discontinuance of a public service.94 It is doubtful whether a mandatory injunction will issue at the suit of a private plaintiff to compel a public authority to carry out its positive statutory duties, unless the statute is to be interpreted as giving the plaintiff a private right of action for breach of those duties; the more appropriate judicial remedy (if any) will be a mandatory order.95 Declarations 18–038A declaration is a formal statement by the court pronouncing upon the existence or non-existence of a legal state of affairs. It declares what the legal position is and what are the rights of the parties. A declaration is to be contrasted with an executory, in other words, coercive judgment which can be enforced by the courts. In the case of an executory judgment, the courts determine the respective rights of the parties and then order the defendant to act in a certain way, for example to pay damages or to refrain from interfering with the claimant’s rights. If the order is disregarded, it can be enforced by official action, usually by levying execution against the defendant’s property or by imprisoning him for contempt of court. A declaration, on the other hand, pronounces upon the existence of a legal relationship but does not contain any order which can be enforced against the defendant.96 The court may, for example, declare that the claimant is a British subject or that a notice served upon him by a public authority is invalid and of no effect. The declaration pronounces on what is the legal position. 18–039The fact that a declaration is not coercive is one of its advantages as a public law remedy. Because it merely pronounces upon the legal position, it is well suited to the supervisory role of administrative law in England. In 93 See, e.g. Pride of Derby & Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch. 149. Other limited exceptions to the general rule are mentioned in Attorney General v Colchester Corp [1955] 2 Q.B. 207, 216 94 Warwickshire CC v British Railways Board [1969] 1 W.L.R. 1117. 95 Glossop v Heston & Isleworth Local Board (1879) 12 Ch.D. 102; and Attorney General v Clerkenwell Vestry [18911 3 Ch. 527 at 537 (alleged breach of duty in failing to provide proper drainage system). It appears even a claim for mandamus would have been inappropri- ate because Parliament had provided another specific remedy: Pasmore v Oswaldtwistle UBC [1898] A.C. 387. See also Attorney General v Pontypridd Waterworks Co [1908] Ch. 388; Holland v Dickson (1888) 37 Ch. D. 669 (illustration of a mandatory injunction issuing to compel the performance of a semi-private nature; statutory duty of company to permit stockholder or shareholder to inspect its books); Meade v Haringey LBC [1979] 1 W.L.R. 637 (right to sue for damages does not appear to have been regarded as a condition precedent to the award of a mandatory injunction). 96 Webster v Southwark LBC [1983] Q.B. 698 (Forbes J., although there had been only a declaration and no injunction granted and although a declaration was not a coercive order the court had an inherent power to make an order of sequestration where the interests of justice demanded compliance. If, for example, the courts have declared that an individual has the right to remain in this country, it could be contempt for the Home Office to remove him after having had notice of the declaration). This was accepted to be the position by counsel for the Home Secretary in M v Home Office [1994] 1 A.C. 377. CONTEMPT 900 addition, by careful draftsmanship the declaration can be tailored so as not to interfere with the activities of public authorities more than is necessary to ensure that they comply with the law. In many situations all that is required is for the legal position to be clearly set out in a declaration for a dispute of considerable public importance to be resolved. It usually relates to events which have already occurred. However, as will be seen, it is increasingly being used to pronounce upon the legality of a future situation and in that way the occurrence of illegal action is avoided. The courts have jurisdiction to grant an anticipatory injunction, quia timet, where this is the only way to avoid imminent danger to the plaintiff but the courts are extremely cautious about granting such relief and the necessity for it can be avoided by granting a declaration instead. 18–040 During the 1970s litigants applied with increasing frequency for declara- tions in order to obtain relief against the activities of ministers and other public authorities. Many of the landmark decisions which Lord Diplock regarded as constituting the ‘‘progress towards a comprehensive system of administrative law [which was] the greatest achievement of the English courts in [his] judicial lifetime’’97 were decided in civil proceedings in which the plaintiff sought a declaration. For example, in perhaps the most important decision of all, Ridge v Baldwin,98 Lord Reid concluded his historic speech by announcing: ‘‘I do not think that this House should do more than declare that the dismissal of the appellant is null and void and remit the case to the Queen’s Bench Division for further procedure’’. Similarly, in the almost equally important decision of Anisminic v Foreign Compensation Commission,99 in restoring the decision of Browne J. which had been reversed by the Court of Appeal, the House of Lords granted a declaration that a provisional determination by the Commission was made without, or in excess of, jurisdiction and was a nullity. Negative declarations 18–041 The courts can be unwilling to grant a negative declaration. By a negative declaration is meant a declaration of no right or no liability. It can also be a declaration as to the absence of any right or power in a defendant or defendant. In order to decide whether a declaration is a negative declara- tion, it is necessary not merely to examine the terms of the declaration but also its substance since by a careful use of language, what is in fact a negative declaration can be drafted in positive terms. 18–042 There are probably two reasons which explain the reluctance of the court to grant negative declarations.100 The first is very similar to the reason that explains the opposition to granting declarations as to 97 R. v Inland Revenue Commissioners Ex p. National Federation of Self-Employed and Small Businesses Ltd [1982] A.C. 617 at 641. 98 [1964] A.C. 40. 99 [1969] 2 A.C. 147. 100 Guaranty Trust Co of New York v Hannay & Co [1915] 2 K.B. 536 at 564–565 (Pickford L.J.: ‘‘I think that a declaration that a person is not liable in an existing or possible action is JUDICIAL REVIEW REMEDIES 901 theoretical issues, if the objective is to anticipate possible proceedings, those proceedings may never occur. The second reason is that they can be used for the purposes of forum shopping.101 Where there are no existing proceedings, the court will usually want to be satisfied that there is some bona fide reason for commencing them but if there is the court will then be prepared to decide on the merits whether declaratory relief should be granted.102 Theoretical issues and advisory declarations 18–043If an issue is theoretical, then in ordinary civil proceedings that is a compelling factor against the grant of relief and that remains the situation even if one of the parties has a perfectly legitimate reason for seeking clarification of the legal situation.103 In claims for judicial review, however, there have now been a number of cases in which the courts have given advisory opinions, in the form of a declaration, where it was clearly desirable that they should do so. The declaratory opinions are given in circumstances where no other remedy would be appropriate. Sir John Laws categorises these situations where it is appropriate for the courts to grant declarations as being ‘‘hypothetical’’. They can equally appropriately be described as raising theoretical issues. A hypothetical question is a question which needs to be answered for a real practical purpose, although there may not be an immediate situation on which the decision will have practical affect.104 A ‘‘hypothetical’’ question has to be distinguished from an ‘‘academic’’ question. An academic question is one which need not be answered for any visible practical purpose, although an answer would satisfy academic curiosity, for example, by clarifying a difficult area of the law. Sir John considers that it would be wrong for the court to grant relief in order to answer academic questions.105 one that will hardly ever be made, but that in practically every case the person asking it will be left to set up his defence in the action when it is brought’’); Dyson v Attorney General [1911] 1 K.B. 410 at 417. 101 Camilla Cotton Oil Co v Granadex SA [1976] 2 Lloyd’s Rep. 10 and the speech of Lord Wilberforce. 102 Rediffusion (Hong Kong) Ltd v Attorney General of Hong Kong [1970] A.C. 1136 at 1156; British Airways v Laker Airways [1985] A.C. 58; Staffordshire Moorlands DC v Cartwright (1991) 63 P. & C.R. 285, CA (granted declarations that planning permission had not been implemented by the defendants, but Mustill L.J. indicated that it was an exceptional case and normally resort should be had to enforcement proceedings). 103 Sun Life Assurance v Jervis [1944] A.C. 111 at 114 (Viscount Simon L.C.: ‘‘the appellants are concerned to obtain, if they can, a favourable decision from this House because they fear that other cases may arise under similar documents in which others who have taken out policies of endowment assurance with them will rely on the decision of the Court of Appeal, but if the appellants desire to have the view of the House of Lords on the issue on which the Court of Appeal has pronounced, their proper and more convenient course is to await a further claim and to bring that claim, if necessary, up to the House of Lords with a party on the record whose interest it is to resist the appeal’’). 104 See, e.g. R. (on the application of Sacupima) v Newham LBC [2001] 1 W.L.R. 563 (because of the ‘‘considerable practical importance’’ of the legal issues, the Admin. Ct and CA dealt with a challenge to the lawfulness of provision of temporary accommodation even though the claimant had by the time of the hearings been provided with satisfactory long-term housing). 105 J. Laws, ‘‘Judicial Remedies and the Constitution’’ (1994) 57 M.L.R. 213, 214–219. DISCRETION TO WITHHOLD RELIEF 904 need to consider the relevance of ECHR Art.13 which, while not incorpor- ated into national law by the HRA, has a pervasive influence in requiring effective remedies for breaches of Convention rights.119 The writ of habeas corpus, examined in Chapter 17, is not discretionary but should issue if unlawful detention is established.120 As with other aspects of the judicial review process, the court must give effect to the ‘‘overriding objective’’ of the CPR in its decision-making about remedies.121 18–050 Where the exercise of discretion by a judge at first instance is challenged on appeal, the Court of Appeal will normally intervene only if the judge below proceeded on the basis of the wrong principles.122 Delay 18–051 Delay as a ground on which the court may withhold a remedy is expressly recognised in s.31(6) of the Supreme Court Act (Senior Courts Act) 1981 which provides that where there has been undue delay in making a claim for judicial review: ‘‘the court may refuse to grant—(a) leave [i.e. permission] for making the application [i.e. claim], or (b) any relief sought on the application if it considers that the grant of the relief sought would be likely to cause substantial hardship to, or substantial prejudice to the rights of, any person or would be detrimental to good administration.’’123 18–052 CPR r.54.5(1) states that judicial review claim form must be filed promptly and in any event within three months from the date when grounds for the claim first arose’’.124 Delay is thus relevant both at the permission stage and in relation to the grant of relief after the court has determined the merits of the claimant’s case. The court regards these as distinct stages and in relation to the latter, delay is a factor to be considered in deciding whether or not to withhold a remedy only if to grant relief would be likely to cause hardship, prejudice or detriment to the defendant or a third party within the meaning of s.31(6)(b). At the full hearing the court is not concerned with the question whether there was good reason to extend time for filing the claim form and seeking permission.125 18–053 The courts have tended to avoid formulating any precise description of what constitutes detriment to good administration. This is because claims for judicial review arise in many different situations and the need for 119 See 13–010. 120 See 17–010. 121 See 16–011. 122 R. v Islington LBC Ex p. Dignan (1998) 30 H.L.R. 723, CA. 123 R. (on the application of Parkyn) v Restormel BC [2001] EWCA Civ 330; [2001] 1 P.L.R. 108 at [32] (Sedley L.J., describing the provision as ‘‘distracting and unhelpful’’). 124 See 16–050. 125 R. v Criminal Injuries Compensation Board Ex p. A [1999] 2 A.C. 330; on good reasons to extend time, see 16–054. JUDICIAL REVIEW REMEDIES 905 finality may be greater in one context than another. It has, however, been observed that ‘‘there is an interest in good administration independently of hardship, or prejudice to the rights of third parties’’.126 In relation to the permission stage, a court may take the view that it is self-evident that a delay has caused detriment to good administration without requiring specific evidence that this has in fact occurred,127 but in relation to withholding relief evidence may be required.128 Courts should be unwilling to excuse a breach of the standards required by administrative law merely upon the ground that to quash the decision would cause the decision maker administrative inconvenience: ‘‘even if chaos should result, still the law must be obeyed’’.129 In R. v Secretary of State for Social Services Ex p. Association of Metropolitan Authorities130 Webster J. held that, although the Secretary of State had not complied with his statutory duty to consult, the housing benefit regulations under challenge should not be quashed, as delegated legislation is not normally revoked unless there are exceptional circumstances, and to revoke the existing regulations would result in confusion.131 Fortunately, however, courts traditionally receive arguments based upon administrative impracticability with scepticism. Except where the difficulty caused to the decision maker is more than inconvenience, and approaches impracticability or where there is an overriding need for finality and certainty,132 a remedy should not be refused solely upon this basis. Even if, contrary to Lord Atkin’s dictum, convenience and justice are 126 R. v Dairy Produce Quota Tribunal Ex p. Caswell [1990] 2 A.C. 738; R. v Monopolies and Mergers Commission Ex p. Argyll [1986] 1 W.L.R. 763 at 774; Coney v Choyce [1975] 1 W.L.R. 422 at 436; R. v Panel on Takeovers and Mergers Ex p. Guinness Plc [1990] 1 Q.B. 146 at 177. 127 R. v Newbury DC Ex p. Chieveley Parish Council (1998) 10 Admin.L.R. 676 (unexplained delay in applying out of time for judicial review of major planning proposal). 128 R. v Secretary of State for the Home Department Ex p. Oyeleye (Florence Jumoke) [1994] Imm. A.R. 268 (no evidence of detriment to good administration had been put before the court and accordingly the court could not be satisfied that there was any such detriment). 129 R. v Governors of Small Heath School Ex p. Birmingham CC [1990] C.O.D. 23, CA; Bradbury v Enfield LBC [1967] 1 W.L.R. 1311 at 1324 (Lord Denning M.R.). 130 [1986] 1 W.L.R. 1, DC; and R. v Gateshead MBC Ex p. Nichol (1988) 87 L.G.R. 435 (CA refused to quash part-implemented school reorganisation scheme). 131 Since a large number of local authorities had acted upon the regulations as promulgated by determining claims in accordance with their terms; R. v Secretary of State for Employment Ex p. Seymour-Smith [1994] I.R.L.R. 448; R. v Brent LBC Ex p. O’Malley; R. v Secretary of State for the Environment Ex p. Walters [1998] C.O.D. 121 (CA upheld decision of Schiemann J. that notwithstanding that the extensive consultation process (relating to the redevelopment of council housing estates) carried out by the respondents was flawed, no relief should be granted since there was overwhelming evidence that the granting of review would damage the interests of a large number of other individuals, and it would be ‘‘absurd’’ to ignore such disbenefits); the courts’ discretion to refuse relief was said to be a broad one to be exercised in the light of the particular circumstances (see 18–048). 132 See, e.g. R. v Monopolies and Mergers Commission Ex p. Argyll Group [1986] 1 W.L.R. 763 (CA refused to grant a remedy for what was held to be an unlawful delegation of discretion because, among other reasons, commercial considerations dictated that decisions of the MMC should be speedy and final. The CA was influenced, however, by the fact that the unlawful decision had been approved by the minister); cf. R. v Panel on Takeovers and Mergers Ex p. Datafin [1987] Q.B. 815, CA. DISCRETION TO UPHOLD RELIEF 906 on speaking terms,133 conversation between the two should be strictly limited.134 Standing 18–054 The extent of the ‘‘sufficient interest’’ of the claimant is a factor to be considered when deciding what, if any, relief to grant.135 As we have noted, when it comes to deciding in its discretion whether to grant relief—a court is going to be more hesitant in some situations in granting, for example, a mandatory order or an injunction than a declaration. Remedy would serve no practical purpose 18–055 The court may exercise discretion not to provide a remedy if to make an order would serve no practical purpose. For example, events can overtake proceedings. So a licence, the validity of which is challenged in the proceedings, may have expired by the time the claim is determined by the Administrative Court. Similarly an activity under challenge may have ceased before a remedy has been granted.136 It may, for instance, be pointless to quash a decision to enable the public to be consulted on data that has become out of date;137 or to quash a decision to disclose a report which had, by the date of judgment, already been disclosed.138 Even a declaration may serve little practical purpose in such circumstances. 18–056 The modern purpose of remedies is simply to give effect to the judgment of the court on the substance of the law.139 In relation to the procedural fairness, however, the courts have in the past sometimes failed to make a clear distinction between (a) holding that a decision is not unlawful because the procedural defect is subsequently cured, for example, by an appeal—in which case the claimant has no grounds of complaint, and (b) situations where a ground of review is established but the court nonetheless withholds relief.140 133 General Medical Council v Spackman [1943] A.C. 627 at 638. 134 The same principle may be seen in the case law of the ECJ. 135 See 2–022; see, e.g. R. v Felixstowe Justices Ex p. Leigh [1987] Q.B. 582). 136 In Williams v Home Office (No.2) [1981] 1 All E.R. 1211 and [1982] 2 All E.R. 564, a prison unit had closed. 137 R. (on the application of Edwards) v Environment Agency (No.2) [2006] EWCA Civ 877; [2007] Env. L.R. 9 at [126]. 138 R. v Sunderland Juvenile Court Ex p. G [1988] 1 W.L.R. 398; cf. R. v NW Thames Regional Health Authority Ex p. Daniels [1993] 4 Med. L.R. 364. 139 See 18–002. 140 See Ch.8.