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The Law Commission |
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You are here: BAILII >> Databases >> The Law Commission >> Administrative Law: Judicial Review And Statutory Appeals (Report) [1994] EWLC 226 (09 September 1994) URL: http://www.bailii.org/ew/other/EWLC/1994/226.html Cite as: [1994] EWLC 226 |
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Laid before Parliament by the Lord High Chancellor pursuant to section 3(2) of the Law Commissions Act 1965
The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law.
The Commissioners are:
The Honourable Mr Justice Brooke, Chairman
Professor Andrew Burrows
Miss Diana Faber
Mr Charles Harpum
Mr Stephen Silber QC
The Commissioners who signed the report on 9 September 1994 were:
The Honourable Mr Justice Brooke, Chairman
Professor Jack Beatson
Miss Diana Faber
Mr Charles Harpum
Mr Stephen Silber QC
The Secretary of the Law Commission is
Mr Michael Sayers
and its offices are at Conquest House,
37 - 38 John Street,
Theobalds Road,
London, WC1N 2BQ.
CONTENTS
| Paragraph | |
| PART I: INTRODUCTION AND SUMMARY | 1.1 |
| PART II: GENERAL CONSIDERATIONS | |
| Public Policy | 2.1 - 2.7 |
| The European dimension in administrative law reform | 2.8 - 2.11 |
| Case-load pressure | 2.12 - 2.14 |
| The response on consultation | 2.15 - 2.20 |
| Developments since the publication of the consultation paper | 2.21 |
| Delay: the present position | 2.22 - 2.27 |
| Principles relevant to case-load issues | 2.28 |
| A duty to give reasons | 2.29 |
| Compensation in respect of ultra vires acts | 2.32 |
| PART III: PROCEDURAL EXCLUSIVITY | |
| Procedural exclusivity and Order 53's provisions for leave, promptness and discretion | 3.2 - 3.7 |
| The rise and fall of the exclusivity principle | 3.8 - 3.15 |
| A procedure for transfer | 3.16 |
| Transfer out of Order 53 | 3.17 - 3.19 |
| Transfer in to Order 53 | 3.20 - 3.21 |
| A reference procedure | 3.22 |
| Transfer to the Crown Office list or certification of a case as "fit for a nominated judge" | 3.23 |
| Alternative remedies | 3.24 - 3.26 |
| PART IV: THE INITIAL STAGE | |
| A new form 86A | 4.3 - 4.7 |
| A request for further information | 4.8 - 4.11 |
| Notification of the decision | 4.12 |
| PART V: FILTERING OUT HOPELESS APPLICATIONS: LEAVE OR PRELIMINARY CONSIDERATION | 5.1 |
| Written applications | 5.9 - 5.12 |
| Criteria for permitting an application to proceed to a substantive hearing | 5.13 - 5.35 |
| (i) An arguable case | 5.15 |
| (ii) Standing | 5.16 - 5.22 |
| (iii) Time limits | 5.23 - 5.30 |
| (iv) Exhaustion of alternative remedies | 5.31 - 5.35 |
| Reasons for not allowing an application to proceed to a substantive hearing | 5.36 |
| Respondent's consent to a substantive hearing of the application | 5.37 |
| Capacity to apply for judicial review | 5.38 - 5.41 |
| PART VI: INTERIM RELIEF | |
| The present position | 6.2 - 6.6 |
| Principles on which interim relief is granted | 6.7 |
| Interim relief against the Crown in domestic cases | 6.8 - 6.14 |
| Interim relief prior to the decision to allow an application to proceed to a substantive hearing | 6.15 - 6.17 |
| The form of interim relief | 6.18 - 6.24 |
| Interim injunctions | 6.19 - 6.20 |
| Interim declarations | 6.21 - 6.22 |
| Stays | 6.23 |
| Third parties | 6.24 |
| Recommendation on the form of interim relief | 6.25 - 6.27 |
| Should the principles governing the availability of interim relief be set out in statute or the Rules? | 6.28 - 6.29 |
| Where primary or delegated legislation is impugned | 6.30 - 6.31 |
| PART VII: INTERLOCUTORY PROCEDURES | |
| Introduction | 7.1 - 7.3 |
| Discovery and Interrogatories | 7.4 - 7.12 |
| PART VIII: REMEDIES | |
| Nomenclature | 8.1 - 8.3 |
| Title of cases | 8.4 |
| Claims for Restitution and in Debt, and Interest | 8.5 - 8.8 |
| Advisory declarations | 8.9 - 8.14 |
| Power to make substitute orders | 8.15 - 8.16 |
| Discretionary denial of remedies | 8.17 - 8.21 |
| Prospective declarations | 8.22 |
| PART IX: RENEWED APPLICATIONS AND APPEALS | |
| Renewed applications | 9.1 - 9.2 |
| Appeal against a refusal to allow an application to proceed to a substantive hearing | 9.3 |
| Setting aside an order permitting an application to proceed | 9.4 |
| Appeal from refusal to set aside an order permitting an application to proceed | 9.5 |
| Appeal from refusal of substantive applications for judicial review | 9.7 - 9.9 |
| PART X: COSTS | |
| Costs on the leave application | 10.2 - 10.3 |
| The substantive hearing | 10.4 - 10.5 |
| Costs from central funds | 10.6 |
| Legal Aid | 10.7 |
| Types of legal aid | 10.8 |
| The test for obtaining legal aid | 10.9 - 10.10 |
| PART XI: HABEAS CORPUS | |
| Functions of habeas corpus | 11.1 - 11.2 |
| Procedure | 11.3 |
| The response to Consultation Paper No 126 | 11.4 - 11.9 |
| The scope of review in habeas corpus | 11.10 - 11.20 |
| Habeas corpus and interim relief | 11.21 - 11.24 |
| Appeals | 11.25 - 11.32 |
| PART XII: STATUTORY APPEALS | |
| Introduction | 12.1 |
| Crown Office Rules | 12.2 |
| Statutory Appeals | 12.3 |
| Simplification to two procedures | 12.4 - 12.5 |
| Case stated | 12.6 - 12.7 |
| The High Courts' powers on appeals by way of case stated | 12.8 - 12.10 |
| Statutory Review | 12.11 |
| Judicial Review or Statutory Review | 12.12 - 12.13 |
| Systematisation of applications to quash | 12.14 |
| The High Court's appellate jurisdiction | 12.15 |
| Standing | 12.17 - 12.18 |
| Intervention | 12.19 |
| Time limits and power to extend time | 12.20 - 12.22 |
| Interim suspension and stay of orders pending appeal | 12.23 |
| Other interlocutory provisions | 12.24 |
| The orders which can be made on appeal | 12.25 |
| Should there be a leave requirement? | 12.26 |
| Allocation of business | 12.28 - 12.29 |
| PART XIII: SUMMARY OF RECOMMENDATIONS | 13 |
| APPENDIX A: Draft Administration of Justice Bill with explanatory notes and Draft RSC Order 53 with explanatory notes | A |
| APPENDIX B: Draft Forms | see PDF |
| APPENDIX C: Note on case-load management and statistics of case-load as at end of July 1994 - Annex 1 and 2 | C |
| APPENDIX D: Time limits: EC Law and other jurisdictions | D |
| APPENDIX E: Model for statutory application to quash | E |
| APPENDIX F: List of those who responded to Consultation Paper No 126 | F |
| APPENDIX G: List of papers presented at Robinson College and Institute of Advanced Legal Studies seminars and names of those who attended both | G |
