Public law and Administration problem question

If John were to seek financial compensation, a claim in tort for breach of statutory duty would offer a monetary remedy in damages. However he would have to prove he suffered a harm that was of the kind that the act was made to prevent 

Judicial review

The charity would need to apply to the High court administrative division ex parte for permission to make a claim for judicial review promptly or in any event within 3 months of the chancellor’s failure to consult. If permission is granted, the case will proceed to a full hearing.

In addition the claim will need to satisfy the requirements of O’Reilly which states for a claim to proceed, the matter must concern the activities of a public body in matters relating to public law. The challenge itself would be brought under The Supreme Court Act 1981 S.31 and Part 54 of the Civil Procedure Rules and can be made by any person with locus Standi, that is, sufficient interest in the matter.

In assessing standing the approach varies between, types of organisations and individuals claims. National Federation Of Self Employed And Small Businesses Ltd was the first important decision on the test, Lord Diplock referred to the desirability of a ‘single public-minded taxpayer’ being able to challenge the validity of unlawful administrative action. In addition in support of the charity getting standing is the ruling in Greenpeace. The reason for giving a pressure group standing was if Greenpeace were not able to bring the claim, then there would not be an effective manner to bring the claim to court. Under this liberal precedent, the IPG would appear to have standing however this is subject to court’s discretion.

Grounds for review

Satisfying all these terms IPG will then need to establish a ground for review. In this case the grounds of challenge concern the non enforcement of the statutory duty to consult.  This duty can either be mandatory or directory. A directory requirement is one that non-observance will not nullify the decision. A mandatory requirement is one which is regarded as so essential that failure to observe it results in treating the decision made as invalid.

In the case of Association of Metropolitan Authorities the duty to consult was held to be a mandatory requirement as it is a means of protecting the interests of those affected.

        

In some areas there will be a general discretion to consult such interests that appear to be appropriate. This is a test of reasonableness in many ways, not based on the Wednesbury test but ‘a matter of common sense’.

This discretion is not absolute, to the point of choosing not to consult however, there is no requirement to do any more than ask for the consulted parties' views - they can be ignored.

If it is found the chancellor was aware that the charity was an interested party but choose not to consult them, this could be challenged as an unreasonable use of discretion. Where a duty to consult exists it must be performed before the mind of the authority becomes unduly fixed following the Gunning Criteria.

Based on this case law it would appear that the requirement was mandatory and discretion should have been exercised in favour of IPG.

Policy Considerations

Cases such as Hill have recognised blanket immunity for claims against certain public services in order to provide security in duty and prevent future inhibited and ineffective performance. Therefore IPG should therefore be aware loosing the claim based on these grounds.

Remedies

It is at full discretion of the court, as not stated in the statute to decide retrospectively whether the

Failure has invalidated the decision. 

If the regulation is in force the court could issue a Declaration, this not a remedy as such because it has no immediate legal effect and simply states the courts view of what the law is on a particular issue. Declarations may be granted on an interim or final basis. This would be the most probable remedy given the fact that IPG do not disagree with the substance.

The alternatives are a quashing order which quashes an unlawful decision of a public authority. Or if the regulation is not in force a mandatory order which would order the chancellor to exercise his powers in lawful manner. The nullification of the order however is unlikely due to the urgency of the situation and the balance of public interest.

Bearing in mind the remedies available to them the IPG must consider the cost and time of judicial review. A simple declaration of the law would only have effect on future actions and the current regulation would still be valid.

Part (b)

Introduction

In dealing with procedural defeats, the courts are continually faced with the challenge of balancing the need to ensure that statutory procedural protections are carefully and constantly observed against the real risk that insignificant procedural defects may be used to pervert the cause of justice by objectors seeking to halt or delay an unpopular scheme or one which will affect them negatively. 

It would appear that plughole ltd have no ground for judicial review and would have difficulty proving the requirements in a private claim.

Alternative grievance redress

The option available is a claim under misfeasance in public office. Plughole LTD would need to show bad faith on the part of the chancellor which had a direct casual link to their loss. Targeted malice would require proof, whereas untargeted malice relies on a subjective test however reckless indifference will suffice. I would not advise pursuing a claim on these grounds due to the complexity of proving causal links and subjective states of mind.

Establishing grounds for review

On following the procedural steps set out in part (a) the contentious area would be the grounds for review. If permission was granted I would advice plughole ltd to apply for Interim relief which works under the same principles as an injunction.

Duty to give reasons

One possible ground is under the natural justice duty to give reasons. There is however no general duty to give reasons so I would advise plughole ltd to establish one of the exceptions. On failing this plughole Ltd could argue on the basis of the legitimate expectation to give reasons based on prior conduct or on acceptance of the reason given, state that it is inadequate.

As within the objective criterion of s2 Banking Rescue Act 2008 the chancellor has found plughole ltd ‘unfit’ arguably the chancellor has been given discretion to define the terms ‘fit and proper’ this could be found to be subjective and therefore require reasons, however this is unlikely be considered in light of an the objectively written statute.

The hearing

Plughole may be able to argue a second breach of natural justice; Russell stated the requirements and Re Hk confirmed it’s applicability to administrative decision.  In addition Ridge  held that the criterion applied to rights of an individual.

By imposing a requirement that a license must be obtained for an activity which could previously have been carried on without restriction, the law is affecting individual rights. It could be argued however that the application process was a written hearing of Plughole’s case consequently a written response would be sufficient. I would therefore advice a request for a further oral hearing as in Thompson however success is unlikely.

 

A third debatable ground would be in relation to discretion to refuse the appeal. The chancellor is entitled to adopt general policy, as long as he considers each individual case but that does not permit him to adopt a rule and refuse to depart from it.  The written response suggests individual consideration.         Nevertheless there is no rule of natural justice that establishes a general right of appeal which means that the courts will not intervene to insist that an appeal against a decision granted. Also no right of appeal was given in statute.

I would therefore not advise Plughole to pursue a claim under judicial review, and instead consider reapplying for a license, once they have achieved the criteria of fit and proper.

Part (c)

Private law

Norma would find it difficult to establish a liability for omission, under a claim for negligence. This is also not advisable due to reluctance for claims against public authorities performing public duties. Furthermore, it would be argued that the Act itself did not envisage compensation for any failure to complete the processing of applications on time.

Ombudsman

I would advise Norma to pursue a claim through an ombudsman due to the loss of her form and subsequent delay under, maladministration. She would first need to pass her claim through her local MP, which could result with the claim being dealt with at that initial stage or not being passed unto the ombudsman.

If it is passed on it is still subject to the parliamentary ombudsman’s discretion to investigate the matter. The treasury is subject to the parliamentary commissioner’s jurisdiction Norma also falls within the 12 month standing criteria. In looking into the maladministration, she may look at the civil service codes which “sets out the framework within which all civil servants work, and the core values and standards they are expected to uphold” on finding maladministration, compensation could be a feasible remedy which could include the £500 loss.

Grounds for judicial review

I would not therefore recommend a claim for judicial review. Her most practicable ground would be failure to uphold a legitimate expectation. However Newhan established the three core elements to establish within each case, Norma has a promise to have her payment within 4 weeks to which the court can order a mandatory order. This however would only speed up the process if anything as her payment is still due to her. Although it was a clear unambiguous promise and a moral reliance, the treasury could argue the personnel who made the promise of four weeks was acting ultra vires 

A more prominent problem for a claim under judicial review is Norma is already out of time. Applications must be made promptly and in any event within three months of the decision being challenged.  Any failure can be ruled undue delay for the purposes of the Supreme Court Act 1981 even if the court extends the time for a good reason. This is justified by the need for legal certainty in relation to public authorities.

Part (d)

Alternative Grievance Redress

I would strongly advise a claim for judicial review, due to the severity of the claim and the remedies, Rickety Bank Ltd, will be seeking. In addition the breaches are acts of illegality and therefore not under the parliamentary commissioners jurisdiction.

Grounds for review

Bias

Rickety bank Ltd may be able to bring a claim based on two areas. In relation to the chancellor’s seat on the reviewing panel, Rickety Bank Ltd could bring a claim under ‘Audi alteram partem’ the right to a fair hearing. S.6 Human Rights Act 1998 requires the need for an independent and impartial tribunal established by law which in turn means the decision maker should be independent from the parties and the executive.

The presence of one biased person is enough to invalidate a decision. Porter established the test as whether the fair minded and informed observer, having considered the facts would conclude that there was a real possibility that the tribunal was biased. Rickety bank Ltd could argue that the fact that the chancellor has a personal bias as he wrote the bill. Similar claims have been brought in Davidson and more recently in Brooke.

The appropriate and sort after remedy here are a quashing order which quashes an unlawful decision of a public authority, which would allow the case to be reheard with an unbiased panel.

Right to legal representation

There is however no absolute right to legal or other representation. However an adjudicatory body must consider in each case whether to permit legal representation and an unreasonable refusal could invalidate the proceedings.

Proportionality test

Rickety bank could also bring a claim based on the severity of the punishment. They would either need to prove that the punishment served was un-proportionate to the breach or that the decision was irrational, judged by test of Wednesbury reasonableness. Reasonableness currently being the most recognised ground in such cases that do not concern human rights.

Human rights prospective

Rickety Bank however could also bring a claim for breach of human rights with supporting case law found in the European Court of Human Rights decision in Air Canada in relation to the seizure and International Transport Roth in relation to the all together excessive punishment, in which case proportionality could be used as a ground.

Rickety Bank Ltd would have to be aware of the balance of the public interest in their case, cases such as Council of Civil Service Unions citing natural security as a means for exclusion of judicial review.

A prohibition injunction preventing the treasury from the confiscation and closing down of the banks. This can also be granted on an interim basis, in order to allow for the second hearing or as a final remedy.

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