Chapter 19 Guidance to answering the end-of-chapter questions

Remedies

1. Do you think that damages should be available for administrative wrongs?

  • The lack of damages can cause hardship to individuals.
  • Are there alternative methods of claiming compensation, for example through a non-judicial body?
  • You might find it useful to revisit the arguments and conclusion of the legal group JUSTICE and the Law Commission, set out on pp. 629–630.

2. Do you think that it is right that the court can refuse a remedy?

  • The ordinary remedies of injunction and declaration are equitable remedies, which means that they are discretionary. Prerogative remedies are also discretionary.
  • Why might a court refuse to exercise their discretion to award a remedy in any case? Think about the example given on p. 634: why would a court be reluctant to grant mandatory injunctions or mandatory orders that compel public authorities to take particular action? Recall your earlier learning about the role of the courts in judicial review and the separation of powers.
  • Why did the court refuse a remedy in ex p Argyll Group or in ex p Swati? See p. 635.
  • What change was made by section 84(1) Criminal Justice and Courts Act 2015 and has the provision received any criticism by lawyers and judges?

3. Explain the various remedies that the court can grant and what the impact of each remedy is on the public authority.

  • Refer to section 31 Senior Courts Act 1981, set out on p. 623. Which section sets out the remedies (‘forms of relief’)?
  • What do you understand to be the meaning of the terms ‘ordinary remedy’, ‘private law remedies’ and ‘prerogative remedies’?
  • What is the effect of each of the remedies? For example, does a ‘quashing order’ do? How might this be combined with a ‘mandatory order’?
  • Does a remedy in judicial review necessarily mean that the claimant will get the outcome that they want from the decision in question? Revisit p. 623 if you are unsure about any of these questions.
  • What are the different types of injunctions and may injunctions be granted against servants and ministers of the Crown?
  • Think about why a declaration may be used. For example, what did the declaration state in X NHS Trust v T (Adult Patient: Refusal of Medical Treatment), discussed on p. 629?

4. If a declaration of incompatibility does not have a legal effect, then what is the point of applying for one?

  • A declaration of incompatibility is a statement by the court that a statutory provision is in conflict with the ECHR.
  • What section and subsection of the HRA 1998 states that a declaration of incompatibility does not have a legal effect? Hint: look for the word ‘validity’ and ‘continuing effect’.
  • If a declaration of incompatibility does not have legal effect, what effect does it have?
  • Think back to the principles of public law in the UK. Can you think of any reason why the courts should be unable to invalidate or force a change to primary legislation?