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How to sue the government: judicial processes and judicial remedies
- Ridge v Baldwin [1964] AC 40: The Chief Constable of Brighton (Ridge) was prosecuted on charges of obstructing justice. He was acquitted but the judge criticised his conduct. The police authority sacked him without a hearing. After reconsideration by the police authority and an unsuccessful appeal to the Home Secretary, Ridge brought an action for a declaration that the dismissal was unlawful. The House of Lords granted the declaration. In cases of dismissal on grounds of neglect of duty, a hearing was required. Neither the reconsideration nor the appeal to the Home Secretary remedied the original defect in the decision. In any event, the original decision was a nullity, so that it could not be rendered valid by the appeal to the Home Secretary (even though a [now repealed] statute provided that the Home Secretary’s decision on appeal was ‘final and binding on the parties’). This appeal also did not exclude recourse to the courts.
- O’Reilly v Mackman [1983] 2 AC 237: Following a prison riot, certain prisoners were sentenced to a period of solitary confinement and loss of early release by the Prison Board of Visitors. The prisoners commenced an ordinary action for a declaration that the decision was ultra vires because inter alia they had not been given a fair hearing. The House of Lords struck out the pleadings. They held that, given the improvements made to the judicial review procedure in the 1978 Reforms, and the safeguards of that procedure for the administration, it would normally be an abuse of process for the court to allow an ordinary action, rather than judicial review, to be pursued by a person seeking to establish that a decision of a public authority infringed rights protected by public law.
- M v Home Office [1994] 1 AC 377: M was deported in alleged breach of an undertaking by the Home Secretary’s counsel not to remove him, and was not returned in breach of a court order to return him. The Home Secretary was of the opinion that this mandatory interim injunction against him (as an officer of the Crown) had been made without jurisdiction. The House of Lords held that although the Crown’s immunity from injunctions had been preserved (Crown Proceedings Act 1947), the Courts have jurisdiction to grant mandatory interim injunctions in judicial review against officers of the Crown. In consequence of the breach of this injunction, while the Crown cannot be held in contempt of court, a minister exercising his power on behalf of the Crown can be.
- R (Corbett) v Restormel Borough Council [2001] EWCA Civ 330: The Council gave planning permission unlawfully for a development. The Secretary of State modified the permission to stop the development; her decision potentially entitled the landowner to compensation. A councillor sought to have the initial unlawful permission quashed in judicial review, so that the permission would be treated as though it never had any legal existence. The Council would then not be liable to pay compensation. The Court of Appeal held that while quashing a decision is the usual consequence of unlawfulness, there are exceptions where this would cause hardship etc. the principles of legality and legal certainty may clash, and regard is to be had to the court’s remedial discretion. The unlawful planning permission should not be quashed on the facts, because inter alia the landowner relied on it.
- Clark v University of Lincolnshire & Humberside [2000] 1 WLR 1988: A student brought an action for breach of contract against her University. She alleged (inter alia) that the University did not follow the contractual rules under student regulations in deciding that she could receive no higher than a Third in her degree as a penalty for plagiarism. The University applied to strike out her claim on the ground this complaint could have been pursued in an application for judicial review. The Court of Appeal refused to strike out the claim, taking Lord Slynn’s flexible approach in Mercury Communications v Director General of Telecommunications [1996] 1 WLR 48 a step further. The Court drew attention to the new Civil Procedure Rules and how they allow the courts to prevent exploitation of procedures (in particular, exploitation of the longer limitation period for civil suits as opposed to judicial review) without resorting to a rigid exclusionary rule capable of doing equal and opposite injustice. The emphasis has changed since O’Reilly v Mackman [1983] 2 AC 237 from whether the right procedure has been adopted to whether the procedural protections for public authorities have been flouted. This was not a suitable case for striking out.