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11.1.3 Judicial Review lecture - Hands on Examples

The following essay style questions provide example questions that can test your knowledge and understanding of the topics covered in the chapter on Judicial Review. Suggested answers can be found at the end of this section. Make some notes about your immediate thoughts and if necessary, you can go back and review the relevant chapter of the revision guide. Working through exam questions helps you to apply the law in practice rather than just having a general understanding of the legal principles. This should help you be prepared for particular questions, which may be presented in the exam.

Q1 Shirley owns a cafe bistro, which serves food that has been prepared and cooked on the premises. The Health and Safety in Catering Authority is a non-statutory body which create regulations which relate to the standards of food safety that should be adhered to in retail outlets selling cooked food to the public. All restaurants and cafe's need to comply with rules established by the Authority and the Authority can ultimately ban an establishment from operating that fails to adhere to these rules.

A number of customers have raised concerns about the health and safety standards, which are adhered to in Shirley's cafe bistro. An outbreak of salmonella poisoning was traced to the establishment and the Health and Safety in Catering Authority who subsequently banned Shirley from operating a cafe bistro. Shirley and the Society of Cafe Bistro Owners wish to challenge the decision of the Health and Safety in Catering Authority on banning Shirley from operating a cafe bistro.

  1. Advise Shirley and the Society of Cafe Bistro Owners as to whether the Health and Safety in Catering Authority is a public body against which judicial review proceedings can be brought.
  2. Advice Shirley and the Society of Cafe Bistro Owners as to whether the decision of the Health and Safety in Catering Authority is a public body which is capable of being subject to judicial review.
  3. Advice the Society of Cafe Bistro Owners as to whether it has legal standing to bring judicial review proceedings either on its own behalf or on behalf of Shirley.
  4. Outline the procedure that Shirley and the Society of Cafe Bistro Owners would follow if they decide to apply for judicial review of the Health and Safety in Catering Authorities decision.

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Q1

You should explain in an introductory paragraph who the parties to the claim are and that the claimant is Shirley and the Society of Cafe Bistro Owners, whereas the defendant is the Health and Safety in Catering Authority. The cause of action is that of judicial review and the claimants are asking the judge the review the legality of the decision of the Health and Safety in Catering Authority to ban Shirley from operating a cafe bistro due to her previous poor health and safety standards.

(a) Consider the criteria on public authorities as provided for within R v Panel on Takeovers and Mergers, ex parte Datafin [1987] QB 815, in which the Panel on Takeover on Mergers was also a non-statutory body with no prerogative or common law powers, but carried out important public functions and were therefore subject to judicial review proceedings.

If the Health and Safety in Catering Authority is performing a public function in upholding the standards of food safety regulations; it is an integral part of governmental-support scheme of regulation. In R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 1 WLR 909, it was held that the government would need to set up a regulatory body if this body did not exist, then the body was serving a public function.

(b) If this question is a public law matter, the context of the decision would be in the course of the Health and Safety in Catering Authority acting within a public function, which it appears to be as it has power to create health and safety regulation in the catering industry.  Would the claim be an abuse of process if it was brought as a private law case. In O'Reilly v Mackman [1983] 2 AC 237, the House of Lords agreed that a request for private proceedings was a abuse of procedure and should be struck out.  The claims had been brought through private law proceedings to avoid the permissions requirement and the strict time limits imposed by judicial review.

Also see Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988, which highlights the greater flexibility that the courts now have in allowing judicial review proceedings since the courts now have greater powers to supervise private law cases against public authorities and the court can strike out unmeritorious claims.

(c) You should consider whether you consider the organisation has sufficient interest in bring the case for judicial review, taking account the relevant criteria established in IRC v National Federation of Self employed and Small Businesses Ltd [1982] AC 617.It was held that the federation did not have sufficient interest in the tax affairs of another set of taxpayers. Contrast this case with R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 All ER 611 in which the World Development Movement was held to have interest in the matter due to the importance of the matter raised, the absence of another other challenger, the nature of the breach and the organisations prominent role in providing guidance with respect to giving aid.

(d) You should briefly outline the procedure for the judicial review process including the written or oral submissions procedure, the permissions stage and the nature of the hearing. You could also discuss any remedies that might be available to the claimants [these will be covered in section 11.2 of the guide].


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