Investigation more flexible than those of the courts but has limited

jurisdiction, investigates in private and has no enforcement powers

(see R. v. Local Commissioner for Administration ex parte Liverpool

City Council (2001)).

Judicial review applies within the UK the Channel Islands and Isle of

Man and to the UK’s remaining overseas territories. However, unlike

most other types of legal action, judicial review is not a matter of right.

The claimant must obtain the permission of the court to commence

proceedings (below) although this will be granted if the claimant has an

arguable case and has not abused the process, for example by delay.

The leave mechanism is a safeguard against using the courts as a sur-

rogate political process in order to ventilate political causes even where

the claimant has a hopeless legal case (see Harlow, 2000a).

17.1 The Range of Remedies

The grounds of judicial review discussed in Chapter 16 emerged

from the various remedies which the courts deployed against the excess

or abuse of official power. This gave the law the practical strength

emphasised by Dicey as part of the rule of law (see Chapter 5). From

the seventeenth century the courts developed the ‘prerogative orders’

(called such because in theory they issue from the Crown) of mandamus,

prohibition and certiorari that enable the High Court to police the

powers and duties of ‘inferior bodies’, i.e. lower courts and government

officials. Mandamus ordered a body to perform its duty. Prohibition

was issued in advance to prevent a body from exceeding its jurisdiction.

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404 General Principles of Constitutional and Administrative Law

Certiorari summoned up the record of an inferior body to be examined

by the court and the decision to be quashed if it was invalid.

These orders remain the basis of the modern law of judicial review

but are now called, mandatory orders, prohibiting orders and quash-

ing orders, respectively. In relation to a quashing order the court can

also send the matter back to the decision maker to decide again and

where it considers that there is no point in sending it back can take the

decision itself (Civil Procedure Rules (CPR) 54.19). This would apply

in the rare case where there is only one possible decision that could

lawfully be made.

The judicial review procedure must be used when applying for the

above remedies (CPR 54.2). A claimant may also apply for the remedies

of declaration, injunction and damages which are also available in

an ordinary legal action (CPR 54.3). A declaration is a statement

of the legal position which declares the rights of parties for example,

‘X is entitled to a tax repayment’. Declarations are not enforceable but

a public authority is unlikely to disobey one. Indeed a declaration is

useful where an enforceable order would be undesirable, for example a

government order before it is considered by Parliament or an advisory

government opinion. The former prerogative orders do not lie against

the Crown as such, but the declaration does. However, this is relatively

unimportant because most statutory powers are conferred on ministers

and the prerogative orders lie against individual ministers.

An injunction restrains a person from breaking the law or orders a

person to undo something done unlawfully (a mandatory injunction).

An interim injunction can restrain government action pending a full

trial. In M. v. Home Office (1993) the House of Lords held that

an injunction can be enforced against a minister of the Crown (see also

R. v. Minister of Agriculture ex parte Monsanto Plc (1998). This

overturns a long tradition that the Crown and ministers cannot be the

subject of enforceable orders (see Crown Proceedings Act 1947, s. 21).

However, it was stressed that injunctions should be granted against

ministers only as a last resort. Injunctions cannot be granted against the

Crown itself. The court also has a general power under s. 31 of the

Supreme Court Act 1981 to stay the government action complained of

pending the trial. Claimants often apply for more than one of the

remedies which may well overlap. For example, a quashing order has

the same effect as a declaration that the offending decision is void.

A claimant cannot seek damages alone but must attach it to

a claim for at least one of the other remedies (CPR 54.3 (2)). Other

financial remedies such as restitution of money paid as a result of an

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Judicial Review Remedies

unlawful demand are not available in judicial review proceedings but

can be sought in an ordinary action (Woolwich Building Society v. IRC

(No. 2) (1993)). A mandatory order in judicial proceedings to return

the money might also be available.

17.1.1 Damages against public bodies

Claims for damages are rare in judicial review proceedings. Damages

cannot be awarded in respect of unlawful government action as such.

Damages can be awarded only in respect of conduct and losses which

are not authorised by statute and which would be actionable in an

ordinary civil action (Supreme Court Act 1981 s. 31 (4), see Metropoli-

tan Asylum District v. Hill (1881)). Damages might also be awarded in

respect of the negligent performance of governmental functions which

cause damage to persons or property, for example allowing a prisoner

to escape (Home Office v. Dorset Yacht Company (1970)). This type

of claim would normally be pursued in an ordinary civil action rather

than judicial review proceedings because damages would be the only

remedy sought.

It is sometimes claimed that there should be blanket immunity from

damages for policy decisions taken by public authorities exercising

regulatory powers in the public interest. This is because the risk might

inhibit the decision maker from exercising its powers independently.

There is no general immunity as such although the threshold is very

high. Indeed in Osman v. UK (1999), the European Court of Human

Rights held that a blanket immunity based on public interest grounds

would violate the right to a fair trial under Art. 6 of the European

Convention on Human Rights. An authority exercising a policy dis-

cretion conferred by statute is liable for negligence only if it exercises

its powers in a way that is Wednesbury unreasonable and therefore not

a valid exercise of its powers (see X v. Bedfordshire County Council

(1995), decisions relating to child care and education). Moreover, it

may not be not clear what injury has been suffered. For example, in

the case of a decision to refuse a licence, which is void because of fail-

ure to take a relevant factor into account, the effect of the invalidity is

to require the decision maker to make a new decision, the outcome of

which might still be to refuse the licence.

In the case of what are sometimes called operational functions, even

though some discretion may be involved, in principle an authority is

liable for a negligent exercise of its powers (Barratt v. Enfield Borough

Council (1999), failure to look after a child after taking him into care).

406 General Principles of Constitutional and Administrative Law

However, the difference between policy and operational functions may

be unclear. For example, the neglect of a child due to a shortage

of resources in a local authority residential home may be the result of

a policy decision to spend money elsewhere. Moreover, the courts

are reluctant to impose in respect of purely financial loss arising from

the negligent exercise of statutory powers (see Murphy v. Brentwood

DC (1991)).

There is also a distinction between damage which an authority fails to

prevent and damage that it causes. In Kane v. New Forest District

Council (2001) the Court of Appeal held that a local planning authority

could be liable for creating a danger by granting planning permis-

sion for a development without first ensuring that an associated foot-

path which the council required the developer to construct was safe.

However, where a public authority fails to exercise a power to prevent

some existing danger there may be a higher threshold. In Stovin v. Wise

(1996), the House of Lords held that the authority’s failure to act must

firstly be Wednesbury unreasonable and secondly that there must be

exceptional reasons for requiring compensation to be paid. By contrast,

where the authority fails to perform a statutory duty to prevent a danger

it might be liable although the courts have still been reluctant to impose

liability to prevent harm caused by the wrong-doings of others (see X

(Minors) v. Bedfordshire County Council [1995] 2 AC 633, 751). In rela-

tion to liabilty for nuisance, however, it has been held that a landowner,

including a public body, is required to act reasonably to remove nuis-

ances, however they arise (Marcic v. Thames Water (2002)).

Judges have special immunities from personal liability. Superior

court judges, that is, the Crown Court when it is dealing with trials on

indictment, the High Court, the Court of Appeal and the House of

Lords, are immune unless they knowingly act outside their jurisdiction

in that they are not then acting as judges. Most inferior court judges and

tribunals are immune if they act within their jurisdiction but liable in

respect of acts outside jurisdiction (see generally Re McC. (1985)).

Magistrates, however, while immune for acts within their jurisdiction,

are liable for acts outside jurisdiction only if they act in bad faith,

i.e. knowingly (Courts and Legal Services Act 1990, s. 108). For this

purpose acting outside jurisdiction probably has a narrow meaning

being confined to ‘narrow ultra vires’ in the sense mentioned in 16.4.1

(Re McC. (above)). Magistrates and their clerks can be indemnified

against liability, for example for costs, unless they act in bad faith

(Access to Justice Act 1999, s. 99).

In three kinds of cases damages may be awarded on the basis of

unlawful government action independently of the private law of tort.

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Judicial Review Remedies

1. Under the Francovich principle in EC law (see Chapter 9).

2. The tort of ‘abuse of public office’ where an authority acts mali-

ciously or knows that it is acting unlawfully (Dunlop v. Woolahra

City Council (1982); Calverley v. Chief Constable of Merseyside

Police (1989); Racz v. Home Office (1994)).

3. Where a right conferred by the European Convention on Human

Rights is infringed. Under the Human Rights Act 1998 s. 8 a person

can apply for ‘just satisfaction’ to a court which has power to award

damages in civil proceedings. The court must take into account the

principles applied by the European Court on Human Rights. For

example in Z v. UK (2001) and T.P. and K.M. v. UK (2001) the

children who failed to recover damages in X v. Bedfordshire County

Council (above) which was decided before the Human Rights Act

1998 came into force, recovered on the same facts in the European

Court for breaches of Art. 8 of the European Convention on

Human Rights (respect for home, privacy and family life; see also

Marcic v. Thames Water (2001)). However, the approach of the

European Court is less generous than a domestic court and it is rare

for non-financial loss to be compensated (see below 18.4.5).

Where an action for damages under the Human Rights Act is

brought in respect of a judicial act, meaning in this context an act

of a court, there is no liability in respect of an act done in good

faith except for an unlawful arrest or detention. The action must

be brought against the crown with the judge concerned being made

a party (HRA 1998 s. 9 (3) (4)).