British Transport Police

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 principle44, 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 law46, it is evidential to the existence of the expectation. The promise can result from an exercise of statutory discretion47 and should be intra vires the body as a whole. These requirements are satisfied. In Coughlan49, 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 Bibi50 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. 52 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 Nadarajah53, 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 Fayed55, it was held that the SoS ought to give notice56 of areas of concern to allow the applicant to make effective submissions and in KhaidaLord 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 livelihood59 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. 60 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 necessity62 because the 'persons' complained against are the only ones empowered to act. 63 David also delayed to object to bias. In Bayfield Properties64 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 unreasonableness65. 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.