Chapter 10 Answers to quick test questions

Judicial review: access to review and remedies

1. What was the significance of the judgment in Anisminic Ltd v Foreign Compensation Commission?

The Foreign Compensation Act 1950 created the Foreign Compensation Commission and sought (in section 4(4)) to restrict the courts’ ability to review the Commission’s determinations by way of an ouster clause. Ousting the scope of judicial review could potentially be seen as a barrier to the rule of law. The House of Lords, however, managed to achieve an interpretation of section 4(4) that did not completely oust the scope of judicial review, thereby resisting an attempt by Parliament to put the Commission beyond the reach of the courts.

2. Explain the judicial review procedure.

The procedure starts with the pre-action protocol and service of the Claim Form upon the defendant public body within three months. The defendant authority then has 21 days to file an Acknowledgement of Service, demonstrating willingness to engage with the proceedings. After this, the parties proceed to court for the permission stage, at which the Administrative Court will consider whether the application should be allowed to proceed further. Once (and only if) this permission is granted, the parties can then prepare for and proceed to the full substantive hearing.

3. What is the time limit within which an application for judicial review must be made and how strictly is this applied?

The time limit within which judicial review applications can be brought is three months and without undue delay, but it remains within the discretion of the court whether to allow an application to proceed. If an application is made within three months but the applicant is regarded as having acted with undue delay, the court has the power to prevent the application going further. Equally, if an application is made after the three months, the courts have the power to permit this if they feel it would be appropriate.

4. What is the ‘sufficient interest’ test and where is it contained?

The sufficient interest test is the basis on which the courts assess whether or not an applicant in judicial review proceedings can be regarded as having standing. It is set out in section 31(3) of the Senior Courts Act 1981.

5. What did the House of Lords say in IRC v National Federation of Self-Employed and Small Businesses Ltd with regards to the way in which the ‘sufficient interest’ test should be applied?

The House of Lords judgment in the IRC case emphasised that standing is an issue that should be considered at two separate points in the course of a judicial review application: at the permission stage and, later, at the substantive hearing. Consideration of standing at the substantive hearing highlights another point emphasised by the House of Lords – the importance of considering the merits of an individual case in assessing standing.

6. Why was Greenpeace granted standing in R v Inspectorate of Pollution, ex parte Greenpeace (No 2)?

In the Greenpeace case, Greenpeace was granted standing even though it was a body representing individuals. The reasons underpinning the court’s willingness to grant standing were that 2,500 residents of the Cumbria area – and therefore affected by the radioactive waste from Sellafield – were members of Greenpeace. Consequently, Greenpeace was thought to be in a better position to represent these members, also having greater resources at its disposal. Additionally, the courts took into consideration the fact that Greenpeace was a well-established institution with a reputation for showing concern for the environment.

7. What tests do the courts employ to determine whether a body is a public authority for the purpose of judicial review?

Historically, the courts looked to the source of an authority’s power in determining whether or not it could be regarded as a public body for the purposes of judicial review. Where a body had been created by statute or the prerogative, this was typically indicative of a public body. Cases such as R v Panel on Takeovers and Mergers, ex p Datafin, however, have seen a broadening out of the ways in which the courts determine whether or not a public body is susceptible to review. In that case, Lloyd LJ explained that a body ‘exercising public law functions …may … be sufficient to bring [it] … within the reach of judicial review’.1

8. What are the three prerogative remedies and what do they do?

The three prerogative remedies are quashing orders, prohibition orders, and mandatory orders.

Quashing orders have the effect of striking out or quashing a public body’s decision.

Prohibition orders have the effect of preventing a public body from acting in respect of a particular issue.

Mandatory orders are the opposite of prohibition orders and require a body to act.

1 [1987] QB 815, 847