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BCL Law Notes Administrative Law: Remedies Notes

Admin Law Remedies Discretionary Bars To Judicial Review Notes

Updated Admin Law Remedies Discretionary Bars To Judicial Review Notes

Administrative Law: Remedies Notes

Administrative Law: Remedies

Approximately 146 pages

These notes are on a wide variety of topics in administrative law: remedies. The topics include breach of a statutory duty and the EU frankovich doctrine, the doctrines of: void ab initio, collateral attack and habeas corpus, remedies for a breach of statutory duty, remedies for a breach of constitutional rights and ECHR rights, costs as a bar to judicial review, damages for breach of a statutory duty, the recovery of illegally obtained taxes/ money, negligence in public office, discretionary bar...

The following is a more accessible plain text extract of the PDF sample above, taken from our Administrative Law: Remedies Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

DISCRETIONARY BARS TO JUDICIAL REVIEW EFFECTIVENESS OF THE LEAVE REQ AS A BAR TO JR UK • about 84% refusal rate. Judge of the HOL - Lord Carlisle QCOn average, judges of the HC receive about a dozen a day of which one or two are granted leave.'nobody should, therefore, get the idea that it is very easy to challenge the Government or public bodies by way of judicial review' IRELAND •10% in 2017Closer to 5% in 2018, Effectiveness requires it to be fair, though. The objective - which should be the measure of effectiveness - is to weed out frivolous or vexatious claims - are all the restrictions on immigrants seeking JR effective in weeding out claims that are a waste of time or is it downright unjust nationalism? THE LEAVE REQUIREMENT • Ex parte application in the High Court. ORDER 84 Rule 20 (2)No application for JR shall be made unless the leave of the court has been obtained RATIONALE G v DPP 1994 'judicial screening process'To prevent an abuse of process, trivial or unstateable cases proceeding, and thus impeding public authorities unnecessarily' To allow admin law to do its job…to protect the public from abuse of process. If there are vexatious claims that aren't arguable, this impedes on this objective as it wastes valuable and scarce judicial resources. STANDARD OF PROOF FOR LEAVE • The rules of the SC do not specify what the standard of proof required is for the applicant to obtain leave in order to then go on to apply for JR, so the courts have had to set such a standard - which is presumably a legislative/ parliamentary intention G v DPP Denham'The burden of proof…is light' Required to established that they've'made out a stateable case, an arguable case in law' • Standard revised since DPP STATUTORY MODIFICATION OF THE ARGUABLE CASE STANDARD - SUBSTANTIAL GROUNDS • So the rules had no indication, the courts came up with their own, but then the legislature stepped in to place further restrictions in order to narrow the size of the filter to the exclusion of certain classes of applicants. IMMIGRANTS S. 5(2) (b) of the Illegal Immigrants Acts 2000-2014 The standard required for an applicant to obtain leave is:Must establish 'substantial grounds' Interpretation by the court? • Decent chance of success A v Minister for Justice, Equality and Reform and another 2012 Section 5 requires that a court should only grant leave on a ground which has'a decent chance of success at a full hearing' ENGLAND Sharma v Antoine Court will refuse an application for leave unless ground(s):'arguable ground for judicial review having a realistic prospect of success' Not enough that case is minimally arguable, must have a good chance of succeeding REVISION OF THE IRISH STANDARD • Influenced by England? OO v Minister for Justice 2015 SC majority:- Not enough to be minimally arguable The standard of the legal point must be such that, in the absence of argument to the contrary, the thrust of the argument indicates that reasonable prospects of success have been demonstrated' Prima facie legal argument still needed Prima facie means that if not balanced or outweighed by other evidence, it will suffice to establish a particular contention. Minority: Clarke'mere' prospect suffices AAA v Minister for Justice 2017Endorsed OO Equivalent to good chance of success which is like the legislation INCONSISTENCY WITH LEGISLATIVE INTENTION? • • • • • • The question is whether the court had capacity to do this! Parliament deliberately enacted provisions dealing with the standard to be applied in immigration and planning Judicial Review cases, and explicitly codified what such was to be. The purpose of the leave requirement is to act as a filtering device for unmeritorious claims in general. The introduction of express provisions on the standard to be applied in immigration and planning cases was to further this objective. By targeting these two broad areas of judicial review acutely, it could be implied that parliament wished to allow the standard for general leave applications to remain as it is. By omitting to deal expressly with the general standard, it could be said that this implies a parliamentary intention to allow the arguable/ stateable case standard to apply. Is the court, by radically altering the standard of its own accord, being unfaithful to the legislative intention and in turn infringing the separation of powers? LEAVE AND THE DECLARATION • There is an alternative to judicial review, which isa declaratory order which enables a party to have something declared unlawful in private OR public law The Chancery (Ireland) Act 1867 givesSuperior Courts jurisdiction to make declaratory orders But processed under a different order - not order 84. Order 19 of the RSCOrder 19 does not require leave O'Donnell v Dun Laoghaire Corporation 1990The courts have statutory discretion to grant declaratory relief This does not require a P to seek judicial review.Order 84 is not 'an exclusive procedure'. The role of this discretion? • • Is exercised in cases of delay. Delay is a bar to declaratory relief in plenary proceedings if the delays exceeds the time limit for JR - three months in general and then the other specific ones.Applicants under Order 19 can evade the leave requirement, but they cannot evade JR time limits. Thus, an individual can seek a declaration that something is illegal, as opposed to a judicial review process, without seeking leave, as long as they observe the time limits of Order 84. Anti-O'Donnell clauses • • • Legislature aware of this loophole Worry that immigrant applicants could delay the immigration process by taking weak or frivolous cases which otherwise would be weeded out by the leave requirement Declaratory actions could take months to be heard so there was a worry that they'd be using them to buy time ILA 2000 s.5Applicants shall not challenge an immigration order 'otherwise than by way of an application for judicial review under order 84 of RSC' REFUSAL TO GRANT LEAVE - RESPONSES 1. Appeal 2. Apply to another judge. Appeals ILA 200 S. 5HC determination of a leave application is finalNo appeal Exception?The High Court certifies that its decision involves a point of law of exceptional public important andit is in the public interest that an appeal should proceed to the SC. Applying to another judge. • The general rule follows English law - R (Opoku) v Principal of Southwark College 2003 - just because judges may differ on the reasons to refuse leave, it does not license applicants to try their luck with another. G v Child and Family Agency 2018 Applicant's leave application was refused, and they applied to a different judge three months later. SC:it's an abuse of process to renew an application for leave by applying to a different judge unless: a. circumstances have materially altered b. new evidence has come to light c. the law has changed since the first refusal was declared.This list is not exhaustive and there may be other circumstances which justify the hearing of a renewed application for leave (The high court firstly found it was barred by the res judicata doctrine, but res judicata only applies where the issue has been concluded and that the dispute is contested but leave is a preliminary assessment and is ex parte) THE STATEMENT GROUNDING APPLICATION Order 84 Rule 20 (2) Applicant must draw statement setting out (a) The relief (b) The precise ground of review (c) Facts which result in the infringement. Facts that support the alleged ground A. THE RELIEF • Must include a statement of each relief sought Certiorari • Have an administrative decision set aside Relief sought is 'an order of certiorari by way of application for judicial review quashing the decision of the Minister making a deportation order' Mandamus • Asking for an order directing the state to comply with some legal duty. Relief sought is 'an order of mandamus by way of application for judicial review requiring the respondent to ___' B. THE GROUNDS • • • Must identify particular grounds for review, not just vague unspecified grounds Can't just say 'acted ultra vires,' 'acted unfairly,' must explain how and/or why. Usually the conjunctive used is simply 'in' 1. State ground (legitimate expectation) 2. State how ground arose…'in' Order 84 Rule 20 (3)Shall not be sufficient for an applicant to make an assertion in general terms of the ground

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