#17443 - Admin Law Remedies Collateral Attack - Administrative Law: Remedies

COLLATERAL ATTACK Usually, the legal response to a measure that is ultra vires or is illegal is advanced aggressively: as the foundation for a JR. here the claim that the measure is illegal is the foundation of the litigation. What if that illegal action is being challenged indirectly through a civil or criminal case instead of JR? The main objection:The 3-months' time limit set out in Order 84 of the RSC is designed to protect public bodies from delays attacks on measures or projects which have already commenced, and the bodies have begun committing resources to such projectsOverall rule is that all civil actions which indirectly impeach an administrative decision must be taken within 3 months or 28 days for immigrants.Civil actions for illegal administrative action are subject to the same restrictions as judicial review.Huge benefit for the state - its amenability to civil litigation is largely hindered O'Reilly v Mackman 1983 HOL O Reilly had been disciplined at a prison discipline inquiry in 1976 1980- initiated civil proceedings by way of declaration against the governor of prison. This mode of proceedings was not time-restricted nor did it require leave. It was brought under an order (15) rather than order 53 which is the UK equivalent of our order 84. The use of the declaration instead of judicial review was deliberate and was used to get around the time limit for JR.If a citizen is complaining of a public administrative wrong, they must use the machinery of JR rather than trying to circumvent the restrictions of JR which have purpose behind themIf this rule was not laid down, challenging administrative decisions would be abused by using other means of litigation and the time limit could be evaded Public interest'the public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision.'Contrary to public policy, and as such an abuse of the process of the court, to permit a person…to proceed by processes other than JR,' when seeking to challenge the infringement of a public authorityImplied intention of legislature is that JR is used and is a process that is exclusively confined to administrative illegality Otherwise the tactical use of other procedures would 'defeat public policy that underlies the grant of those protections' Absolute rule?This exclusivity is not inflexibleCourt can balance interest of public authorities against interests of the individual in accessing the courts. CIVIL PROCEEDINGS - CHALLENGING COLLATERALLY? MAY A PUBLIC LAW ILLEGALITY BE THE BASIS OF A CIVIL CLAIM? The overall principle is that to sue for damages arising from administrative illegality: 1. Must take JR and respecting the authorities' right to notice which is the purpose of the 3month limit, as the administrative body assumes that its actions are safe if not objected to in that time OR 2. Sue directly for the civil action involving the same breach within the three months Express Bus v National Transport Authority 2008 CA Case arose out of a decision to alter the number 38 bus timetable. The current holder of the franchise claimed that there was a breach of EU law which requires a competitive tendering process as a precursor to the award of a license to do this. Rather than challenging the decision of NTA, the p sought damages for breach of EU law on the Francovich grounds in a case initiated a year later. CA:The damages claim necessarily involved a claim that a public authority has acted ultra vires. Thus, itAmounted in substance to a collateral challenge to the validity of the Authority's decision because to succeed in its damages claim, the P would also have, at a minimum, to challenge the validity of that decision. The award of the license either should have been challenged under judicial review, followed by a companion damages action OR challenged directly by a civil action within the three months of the award.By challenging the award of the license, a year after it was granted, Ps held to be circumventing the public authorities right not to have decisions interfered with after the 3 month-time period