Judicial Review Principles

In Baker v Police Appeals Tribunal [2013] EWHC 718 (Admin), set out the following principles on when not to grant discretionary relied, which would be a rare thing:

Permissible Reasons

1. In what circumstances can it ever be permissible for a court to allow a decision which is in law a nullity to be treated as if it were legally valid? Cases in which the courts have declined to quash unlawful decisions appear to fall into four main categories.

1. One ground on which relief may be refused is that the claim has not been properly pursued. Delay in applying for judicial review is an obvious example. Relief may also be refused where the claimant acquiesced in the decision or did not exhaust other remedies before seeking judicial review or has abused the court’s process, for example by misrepresenting or suppressing material facts. In all these cases there is some feature of the claimant’s conduct in pursuing or failing to pursue the claim which makes it inappropriate to grant relief in these particular proceedings to this particular claimant. Generally, such factors will operate at the stage of deciding whether the court will entertain a claim for judicial review at all rather than at the stage of deciding what remedy to grant after a claim has been considered and held to be well founded. But even at the latter stage there is no difficulty in principle with the concept that failure properly to pursue the claim may disentitle the claimant to a remedy.

1. A second ground on which a remedy may be withheld is that granting it would cause substantial prejudice to the rights of third parties. This flows from the point already mentioned that people will reasonably act on the assumption that a decision of a public authority is valid unless and until a court determines otherwise. Where quashing the decision or declaring it a nullity would be unfair to people who have relied on the decision, this is a proper consideration for the court to take into account. It has, for example, been treated as a compelling reason for the court not to grant a remedy with retrospective effect when a ruling of the Takeover Panel made in the course of a takeover is found to have been unlawful: see R v Panel on Take-overs and Mergers, ex p Datafin [1987] QB 815 at 842; and R v Panel on Take-overs and Mergers, ex p Guinness plc [1990] 1 QB 146 at 157-8.

1. A third situation in which the court may refuse to grant relief is where the error of law made by the public authority was not material to its decision. The Marcrest case, as I read it, is an example of this. The reason why the Divisional Court and Court of Appeal declined to quash the decision to cancel Marcrest’s licence despite the error of law made by the justices and the Crown Court was that they were satisfied that the error did not affect the decision, and that if the error had not been made the licence would still inevitably have been cancelled (because of the finding that Marcrest was not a fit and proper person to hold a licence). The dangers of taking this line of reasoning too far, for example where the error involves depriving the claimant of the right to a hearing, have often been emphasised: see e.g. R v Chief Constable of Thames Valley Police, ex p Cotton [1990] IRLR 64, quoted by Bingham LJ at [1991] PL 64, 72.

1. A fourth category of case in which the court may decline to grant a remedy is where it would serve no practical purpose. It may, for example, be pointless to quash the grant of a licence which has already expired, or some other activity which has already ceased, before proceedings challenging its validity have been determined.  

(27 March 2013)