Chapter 15 Guidance on answering the pop quizzes

Breach of contract and judicial review

Page 615: A breach of contract is unlawful. Does that mean that a breach of contract is a ground of judicial review?

• No! It’s a reminder that judicial review is not a general process for quashing unlawful decisions (see 2.7). You cannot seek judicial review on the ground of breach of contract, because you don’t need judicial review for that purpose: the judicial review jurisdiction is a special judicial power to control public authorities, and does not have the general role of quashing unlawful action. If you have a remedy for breach of contract in an ordinary claim, there is no need for judicial review. And there is no reason for it: ‘in general questions of construction of the contract or breach will attract no special public law principles, and judicial review is not an appropriate procedure to resolve such disputes’ (R (Molinaro) v Kensington and Chelsea [2001] EWHC Admin 896 [66] (Elias J)).

• But if a public authority breaks an agreement that is not a contract, you may need judicial review and you may be able to get it, as we know from the law on legitimate expectation (section 8.4). In R v Inland Revenue Commissioners, ex p Preston [1985] AC 835, Lord Templeman said, ‘In principle I see no reason why the appellant should not be entitled to judicial review of a decision taken by the commissioners if that decision is unfair to the appellant because the conduct of the commissioners is equivalent to a breach of contract or a breach of representation. Such a decision falls within the ambit of an abuse of power for which in the present case judicial review is the sole remedy and an appropriate remedy.’ (866) So if it is an abuse of power to break an agreement, but there is no contract, then you can seek judicial review. That is an instance of judicial review for unfair disappointment of a legitimate expectation.

Public authorities

Page 626: Is the Panel on Take-overs and Mergers a public authority?

• No, of course not, in the sense that it was not created or operated by any agency of the state. But yes of course it is a public authority, in the sense that it was created to serve a purpose for the community, and to do so in a way that gave it authority to pass judgment on behalf of the community, concerning participation and practice in a public financial market. The term ‘public authority’ has no special technical meaning and can be used in different senses.
• Was the court right to subject the Panel to judicial review?

Page 631: Would the claimants in R (Liberal Democrats and Scottish National Party) v ITV Broadcasting Ltd [2019] EWHC 3282 have been more successful if they had brought a claim for a declaration under CPR 8 instead of a claim for judicial review?

• What is the purpose of the CPR 8 process?
• The claimant political parties sought judicial review of ITV’s decision not to include their leaders in a televised debate between the leaders of the Conservative and Labour parties before a general election. The Court held that ITV was not performing a public function, so that it was not amenable to judicial review. 
• But ITV is amenable to the CPR 8 process –that is, the process could be used against ITV in an appropriate case. Would the Court have held that this was an appropriate case?
• Note that the Court held that no one has ‘any public law right to appear on television’ [85]. Does anyone have a private law right to appear on television?

Page 616: Can and should the judges do anything for Alice [hint: see 15.5.2]?

• Alice is paying a private agency for her own care in a nursing home. She cannot use administrative law to help her, bebecause the care agency is not performing a public function.
• Suppose that the agency wants to evict her from the nursing home, and Alice wants to complain that they are doing so without due regard for her private life. She cannot claim that they are acting unlawfully under the Human Rights Act because the agency is neither a ‘core’ nor a ‘hybrid’ public authority. Her legal relationship with the care agency will be defined by a contract. The contract itself ought to protect her from abuse, and the courts can protect her by interpreting the contract, or holding that there are implicit terms prohibiting abuse.
• Some forms of abuse of a nursing home patient would be a tort, or a crime, and Alice is protected by the law of tort and crime in just the same way as a patient in a publicly-operated care home.
• The care agency will also be subject to regulation under the Health and Social Care Act 2008, and to inspection by the Care Quality Commission to give effect to the regulations and to prosecute agencies for offences under the regulations (see the Care Quality Commission website).
• The interesting question is whether that array of protections is enough for Alice. If so, then anything that the Human Rights Act gives Candice is more than she needs, in order for her private life to be respected.