a) Section 1 by its interpretation, imposes a mandatory duty on the SoS to consult relevant parties before making Regulations. Hullair alleges that they were not consulted. In Aylesbury Mushrooms it was said that even though the determination of who is a relevant party subjectively lies with the SoS, it is subject to bona fides and reasonableness. Hullair is reasonably a relevant party who is required to administer the Regulations regularly. The SoS’s failure to consult Hullair is a procedural ultra vires act as it is a condition determining the SoS’s jurisdiction. The challenge can be mounted directly in judicial review or indirectly as a collateral attack in defence to the enforcement proceedings. Delegated legislation can be invalidated. In some cases remedy was given not to apply the impugned Orders to those not consulted, and in others, the courts have refused to revoke them in the absence of special circumstances. Again, substantially the Regulations are vague and bad for uncertainty. The phrase ‘dangerous item’ is not precisely meaningful. The Regulations do not provide adequate information on what is dangerous, leaving wide discretion and room for arbitrariness. Laws which carry penalties for infringement must be certain, clear and provide adequate information and guidance to those who must obey them. The punishment imposed is not clear and adequate as Hullair have not been told whether the aeroplane will be returned or not. Further, Hullair was not given a hearing, breaching common law rules of natural justice. The audi alteram partem maxim which means hear the other side was in Ridge said to apply to every body of persons given authority to adjudicate upon matters with civil consequences to individuals. A duty to act judicially can be inferred which would require the SoS to give notice to the charge and an opportunity to hear the defence before imposing the punishment. Hullair can also challenge the penalty imposed as excessive and disproportionate to the misconduct. In the Bill of rights 1869, a recognised principle of justice is that penalties should not be excessive. In Hook, the court said that it can interfere by certiorari if a punishment is altogether excessive, out of proportion to the occasion and is reasonably evident. To confiscate the aeroplane on top of a fine because of a small nail clipper appears excessive. The challenge is most likely to succeed and the penalty and the Regulations quashed or invalidated.
b) The Association is aggrieved by the delays to issue licences, and by the SoS sticking rigidly to the provisions of the Act, causing loss of earnings to its members. The SoS may well have a justified public interest reason in sticking rigidly to the Act’s provisions and also it may be that he has no discretion over this matter as it is the SoS’s duty to enforce what Parliament has enacted. However, delay is a form of maladministration. The pilots likely want compensation for their losses while the department considers their applications. There is no general right to damages in judicial review for maladministration. Judicial review is not worth pursuing. The Parliamentary Ombudsman is more likely to get financial compensation for the pilots. The pilots will have to make complaints on their own as representatives are allowed only where persons aggrieved are unable to act for themselves. Wade and Forsyth state that minimising delay is very important in administration and whether the subsequent decision is favourable or not the applicant will have suffered. The Ombudsman’s principle of being customer focussed entails public bodies dealing with people within any published time limits. Public authorities are to act reasonably and to address any unfairness caused by applying the law strictly, putting things right by compensating for financial losses, losses of opportunity, inconvenience and distress. Wade and Forsyth note that the PCA’s reports show a great deal of success in obtaining cooperation and compensation where almost certainly no remedy would have been obtained otherwise. They can also raise complains using internal complaints procedures. The pilots are advised to approach their MP’s to refer their cases to the Ombudsman.
c) Flyinair are aggrieved by breach of a promise not to be fined for using pilots whose license applications have been delayed. The promise engendered a substantive legitimate expectation which they relied on to their detriment. From the Carltona principle, the civil servant acted on behalf of the SoS. Flyinair can directly apply for judicial review or wait for enforcement proceedings and collaterally attack the fine in defence. Courts assess the legitimacy and reasonableness of the promise hence it should be clear and unambiguous. Although reliance is not required as a matter of law, it is evidential to the existence of the expectation. The promise can result from an exercise of statutory discretion and should be intra vires the body as a whole. These requirements are satisfied. In Coughlan, it was said that frustration of a promise which induced a substantive legitimate expectation could be so unfair that it would amount to an abuse of power, and in Bibi that it would be abuse of power when a public body acts contrary to its promise without even considering that it is in breach of such a promise. Further, the person must be given an opportunity to present arguments as to why their substantive legitimate expectation should not be defeated by the change of view. Applying the above, the SoS abused power by fining Flyinair without considering the promise given earlier and without giving them an opportunity to present their arguments. In Nadarajah, Laws L.J. said a public body’s promise could only be denied where to do so was the public body’s legal duty or where it was a proportionate response to the legitimate aim being pursued: a matter for the court to decide. Detrimental reliance is a factor to be weighed in deciding if denial of the expectation is proportionate. Fining Flyinair without giving a hearing is also a breach of natural justice as per relevant discussion on Hullair above. Flyinair could try to use internal complaints methods first and if unsuccessful, it would be better to wait until enforcement proceedings and then collaterally attack the decision. They could still apply for judicial review, funds permitting. The fine is most likely to be quashed.
d) David is aggrieved by the decision that he is deemed unsuitable. The SoS has been given ‘strong’ discretion to the grant of licences. It would be required of the SoS to have a criteria of determining suitability and not do so arbitrarily or capriciously. In exercising discretion, the SoS has a duty to decide in good faith, fairly, reasonably and pursuant to the objects of the statute. Fairness entitles David to an unbiased decision maker, notice, a hearing and reasons for the decision. In Fayed, it was held that the SoS ought to give notice of areas of concern to allow the applicant to make effective submissions and in Khaida Lord Denning said that an applicant ought to be given sufficient indication of the objections against him to enable him to answer them. Although there is no general duty at common law to give reasons for administrative decisions, in circumstances where important interests are at stake such as one’s livelihood reasons have been required. The license is undoubtedly crucial to David’s livelihood. Where given, reasons should be intelligible and adequate allowing the reader to understand why the matter was decided as it was. To just say David has been deemed unsuitable is not adequate. David’s likely suspicion is that the decision maker was biased or acted out of malice due to his criticism. Hostility is a cause of prejudice. However, in this case natural justice has to give way to necessity because the ‘persons’ complained against are the only ones empowered to act. David also delayed to object to bias. In Bayfield Properties it was said that the complainant should not wait and see how the decision comes out and then pursue the complaint of bias as it would be taken that he had waived his right to complain. It is also difficult to prove malice on the facts. While David may have an arguable case on the other grounds, judicial review would be expensive yet the results uncertain. The procedural requirements even if granted, may not protect the substantial outcome unless it would be clear from the reasons that there would be further challengeable grounds on Wednesbury unreasonableness. David may alternatively seek the Ombudsman’s service, who investigates wide issues of maladministration causing injustice. The Ombudsman’s third principle of good administration is being open and clear about policies and procedures, stating criteria for decision making and giving reasons. The Ombudsman would be more effective as she has powers to compel production of documents to adequately analyse the decision and may succeed in getting a reconsideration of the application and even compensation if any findings of maladministration are made, as David will undoubtedly lose his earnings and be subjected to distress while investigations are made. The tort of misfeance in public office is also available if malice is proven.
In conclusion, judicial remedies are most effective for the grievances of Hullair and Flyinair. They can indirectly challenge the decisions collaterally in defence to the enforcement proceedings or directly by judicial review. The pilots are more likely to find success in getting compensation from the Ombudsman than in the courts. David will get a more effective and less costly remedy in the Ombudsman who can investigate the matter more flexibly and widely than the courts as the substantive defect with the decision is not so apparent without the reasons.
BIBLIOGRAPHY
CASES
[1] Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 K.B. 223.
[2] Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms [1972] 1 All ER 280.
[3] Boddington v. British Transport Police [1999] 2 A.C. 143.
[4] British Oxygen v. Board of Trade [1971] A.C. 610.
[5] Carltona Ltd v. Commissioners of Works [1943] 2 All E.R. 560, CA.
[6] Commissioners of Customs and Excise v. P & O Steam Navigation Co [1993] C.O.D. 164.
[7] Cooper v. Wandsworth Board of Works (1863) 14 C.B. (N.S) 180.
[8] Dimes v. Grant Junction Canal (1852) 3 H.L.C.
[9] Dunlop v. Woollahra Council [1982] A.C. 158.
[10 ]Dunnett v. Railtrack [2002] All E.R. 850.
[11] Kruse v. Johnson [1898] 2 Q.B. 91.
[12] Laker Airways Ltd. v. Department of Trade [1977] Q.B. 643.
[13] Lavender & Son Ltd v. Minister of Housing [1970] 3 All ER 871.
[14] Locabail (UK) Ltd. v. Bayfield Properties Ltd. [2002] 2 W.L.R. 870.
[15] Minister of National Revenue v. Wrights’ Canadian Ropes Ltd [1947] A.C. 109, 123.
[16] O’Reilly v. Mackman [1983] 2 A.C. 387.
[17] Padfield v. Minister of Agriculture [1968] A.C. 997.
[18] Percy v. Hall [1997] Q.B. 924.
[19] Porter v. Magill [2002] 2 W.L.R. 37.
[20] R v (1) Leicestershire County Council (2) Hepworth Building Projects Ltd (3) Onyx (UK) Ltd ex p Blackfordby & Boothorpe Action Group Ltd [2001] Env LR 2.
[21] R v. Barnsley Metropolitan Borough Council, ex parte Hook [1976] 1 WLR 1052.
[22] R v. City of London Corporation, Ex parte Matson [1997] 1 W.L.R. 765.
[23] R v. Civil Service Appeal Board, Ex parte Cunningham [1991] 1 All E.R. 310.
[24] R v. Commissioners of Custom and Excise, Ex parte F & I Services Ltd [2001] EWCA Civ 762.
[25] R v. Deputy Governor of Parkhurst Prison, Ex parte Leech [1988] AC 533.
[26] R v. Home Secretary, Ex parte Fayed [1997] 1 All E.R. 228.
[27] R v. Human Fertilisation and Embryology Authority, ex parte Blood [1997] 2 All E.R. 687.
[28] R v. Knowsley MBC, Ex parte Maguire [1992] C.O.D. 499.
[29] R v. Lancashire County Council, Ex parte Huddleston [1986] 2 All ER 941.
[30] R v. Liverpool Corporation, Ex parte Liverpool Taxi Fleet Operators' Association and Another [1972] 2 Q.B. 299.
[31] R v. Ministry of Agriculture, Fisheries and Food, Ex parte British Pig Industry Support Group [2001] A.C.D 3.
[32] R v. Ministry of Agriculture, Fisheries and Food, Ex parte Hamble Fisheries (Offshore) Ltd. [1995] 2 All E.R. 714.
[33] R v. Nailsworth Licensing Justices, Ex parte Bird [1953] 1 W.L.R. 1046.
[34] R v. North and East Devon Health Authority, Ex parte Coughlan [2001] Q.B. 213.
[35] R v. Secretary for Trade and Industry Ex parte Lonrho plc [1989] 1W.L.R. 525.
[36] R v. Secretary of State for Social Services, Ex parte Association of Metropolitan Authorities [1986] 1 W.L.R 1.
[37] R v. Secretary of State for the Environment, Ex parte NALGO [1992] C.O.D. 282.
[38] R v. Secretary of State for the Home Department, Ex parte Khan (Asif Mahmood) [1984] 1 W.L.R. 1337.
[39] R v. Secretary of State for the Home Department, ex parte Venables [1998] A.C. 407.
[40] R (Bibi) v. Newham LBC [2002] 1 W.L.R. 237 (CA).
[41] R (On the Application of Abdi and Nadarajah) v. Secretary of State for the Home Department [2005] E.W.C.A. Civ 1363.
[42] R (On the Application of Bradley) v. Secretary of State for Work and Pensions [2008] EWCA Civ. 36.
[43] R (On the Application of Cowl) v Plymouth City Council [2001] EWCA Civ 1935.
[44] Ridge v. Baldwin [1964] AC 40.
[45] Rooke’s case (1598) 5 Co Rep 99b.
[46] Sachsenhausen case, Third Report of the Parliamentary Commissioner for Administration (HC 54; 1967-68).
[47] South Bucks District Council v. Porter (No 2) [2004] UKHL 33.
[48] White v. Kuzych [1951] A.C. 585.
LEGISLATION
[1]Civil Procedure Rules (SI 1998/3132).
[1]Parliamentary Commissioner Act 1967 chapter 13.
[2]Senior Courts Act 1981, chapter 54.
JOURNAL ARTICLES
[1]Lord Phillips of Worth Matravers., Alternative Dispute Resolution: an English view point, Arbitration 2008, 74 (4),406-418.
[2] Steele, I. ‘Substantive Legitimate Expectations: Striking the Right Balance?’ {2005} LQR 300.
[3] The Hon. Michael, J. Beloff. Q.C., How Green is Judicial Review, Judicial Review volume 10 2005.
BOOKS
[1] Craig P Administrative Law (6th edn Sweet & Maxwell, London 2008).
[2] Elliott M, Beatson, Matthews and Elliott’s Administrative Law, Text and Materials, (3rd edn OUP, Oxford 2005).
[3] Fordham M, Judicial Review Handbook (3rd edn Hart Publishing, 2001).
[4] Supperstone M (QC), & Knapman L, Administrative Court Practice (OUP, Oxford 2008).
[5] Wade H.W.R., & Forsyth C.F, Administrative Law (10th edn OUP, Oxford 2009).
[6] Wade W, & Forsyth ,C Administrative Law, (8th edn OUP, Oxford 2000).
[7] Bradley A W, and Ewing K D, Constitutional and Administrative Law (13th edn Longman, Harlow 2003).
INTERNET WEBSITES
[1] http://www.ombudsman.org.uk.
Rooke’s case (1598) 5 Co Rep 99b.
Boddington v. British Transport Police [1999] 2 A.C. 143.
Steele, I. ‘Substantive Legitimate Expectations: Striking the Right Balance?’ {2005} LQR 300.
R v. Deputy Governor of Parkhurst Prison Ex P. Leech [1988] A.C. 533,(HL).
HC Deb, 18 October 1966, col 51 (RHS Crossman MP).
Previously Supreme Courts Act 1981, Chapter 54.
O’Reilly v. Mackman [1983] 2 A.C. 387.
Roy v. Kensington and Chelsea and Westminister Family Practitioner Committee [1992] 1 A.C. 624.
R(Cowl) v. Plymouth City Council [2001] EWCA Civ 1935.
The MP filter, PCA 1967 s 6(3).
R(on the application of Bradley) v. Secretary of State for Work and Pensions [2008] EWCA Civ. 36.
Lord Phillips of Worth Matravers, Alternative Dispute Resolution: an English view point, Arbitration 2008, 74 (4),406-418.
Dunnett v. Railtrack [2002] All E.R. 850.
R v. Knowsley MBC, ex parte Maguire [1992] C.O.D. 499.
Tort of misfeance in public office is available, Three Rivers DC v. Bank of England (No 3) (Summary Judgement) [2003]2 A.C. 1. Also the Crown is liable under the common law torts.
Agricultural. Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms [1972] 1 All ER 280.
R v. Secretary of State for Social Services, Ex p. Association of Metropolitan Authorities [1986] 1 W.L.R 1.
Kruse v. Johnson [1898] 2 Q.B. 91.
Percy v. Hall [1997] Q.B. 924.
Ridge v. Baldwin [1964] AC 40.
Cooper v. Wandsworth Board of Works (1863) 14 C.B. (N.S) 180.
R v. Barnsley Metropolitan Borough Council, ex parte Hook [1976] 1 WLR 1052.
Commissioners of Customs and Excise v. P & O Steam Navigation Co [1993] C.O.D. 164.
HC Deb, 18 October 1966, col 51 (RHS Crossman MP).
R v. Knowsley MBC, ex parte Maguire [1992] C.O.D. 499.
Wade W., & Forsyth C., Administrative Law, (8th edn, OUP, Oxford 2000).
Sachsenhausen case, Third Report of the Parliamentary Commissioner for Administration (HC 54; 1967-68).
Carltona Ltd v. Commissioners of Works [1943] 2 All E.R. 560, CA.
R v. North and east Devon Health Authority Ex p. Coughlan [2001] Q.B. 213.
R v. Ministry of Agriculture, Fisheries and Food ex parte Hamble Fisheries (Offshore) Ltd. [1995] 2 All E.R. 714.
R v. Inland Revenue Commissioners, ex parte MFK Underwriting Agencies Ltd [1999] 1 W.L.R. 1545.
Craig P., Administrative Law (6th edn Sweet & Maxwell, London 2008).
R v. North and East Devon HA Ex p. Coughlan [2001] Q.B. 213.
R (Bibi) v. Newham LBC [2002] 1 W.L.R. 237 (CA).
R (On the Application of Machi) v. Legal Services Commission [2002] A.C.D. 8.
R(On the Application of Abdi and Nadarajah) v. Secretary of State for the Home Department [2005] E.W.C.A. Civ 1363 [68].
R v. Home Secretary ex parte Fayed [1997] 1 All E.R. 228.
The SoS was not required to give reasons but their Lordships took a robust approach to require giving of notice for fairness.
R v. Gaming Board for Great Britain, ex parte Benaim and Khaida [1970] 2 Q.B. 417.
Minister of National Revenue v. Wrights’ Canadian Ropes Ltd [1947] A.C. 109, 123.
R v. City of London Corporation, ex parte Matson [1997] 1 W.L.R. 765.
South Bucks District Council v. Porter (No 2) [2004] UKHL 33.
White v. Kuzych [1951] A.C. 585.
Dimes v. Grant Junction Canal (1852) 3 H.L.C.
Sub-delegation is unlawful, Lavender & Son Ltd v. Minister of Housing [1970] 3 All ER 871.
Locabail (UK) Ltd. v. Bayfield Properties Ltd. [2002] 2 W.L.R. 870.
Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 K.B. 223, irrelevant considerations, failing to consider relevant matters, acting for improper purposes or a decision so unreasonable that no reasonable SoS would come to it.