The issue faced by the clients is whether the clients can succeed either in their application of judicial review, bringing an action in private law or seeking redress through alternative grievance reslution mechanism. Judicial review, as described by Lord Diplock, provides the means by which judicial control of administrative action is exercised. In order for the clients to apply for judicial review, the claimants must have either a direct or personal interest in the decision.
However, before the claimants can go forth with judicial review, they are required under Part 54 of the Civil Procedure Rules to undergo the pre-action protocol. resolution Furthermore, Part 54. 5 of the Civil Procedure Rules states that the claim for judicial review must be issued promptly and in any event not later than three months after the grounds to make the claim (the decision) first arose. However, cases may still be heard by the court as they have the power to extend time if an injunction is implemented by the court until the case is decided.
Once successful in their claim for judicial review, there are several remedies which can be applied to the cases as per s31(1)(a)(b)(c), (2)(a)(b)(c) of the Supreme Court Act 1981. (a) The issue in Andy's case is whether he is able to claim for failure to a consultation as well as that of a hearing, i. e. , procedural impropriety. Firstly, Andy is faced with the issue of the failure to conduct a consultation properly. Secondly, the issue of the Secretary of State for Transport's failure to give each party an opportunity to be heard.
Essentially, procedural unfairness occurs when the decision-maker fails to carry out: the relevant statutory procedures, e. g failure to consult, as well as abide by the principles of natural justice when they arriving to that decision, e. g failure to give each party an opportunity to be heard. Firstly, there are several cases in which Andy can rely his case on the Secretary of State's failure to conduct a proper consultation, such as R v Liverpool Corporation, ex parte Liverpool Taxi Operators Association1 as well as that in R v North and East Devon Health Authority, ex parte Coughlan2.
The Liverpool Corporation case concerned a number of taxi cab owners challenging the Council's decision to increase the number of hackney cabs operating in the city. The chairman had given a public undertaking that the numbers of cabs would not be increased until the proposed legislation were enacted by Parliament. It was held that there was a duty to comply and provide the consultation.
In his obiter, Lord Denning stated that 'even in the absence of such a public undertaking, the applicants would have a right to be consulted: 'It is perhaps putting it a little high to say that they [Liverpool Corporation] are exercising judicial functions. They may be said to be exercising administrative function. But even so, in our modern approach, they must act fairly and the court will see that they do so… it is the duty of the corporation to hear those affected before coming to a decision adverse to their interest'.
The Coughlan case involved a disabled woman who became a long term patient at Newcourt Hospital. She was assured that they would be able to remain at Mardon House 'for a long as they wished to stay there' when they were moved. The claimant argued that the 'home for life' promise gave rise to a substantive legitimate expectation which should be protected substantively. The House of Lords dismissed the Health Authority concluding that 'the financial arguments advanced by the health authority were insufficient to justify dashing the legitimate expectation3'.
It was held in the Coughlan case that 'to be proper, consultation must be undertaken at a time when proposals are still at a formative stage, it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be consciously taken into account when the ultimate decision is taken'. Secondly, Andy is faced with the issue of Hullair not been given a hearing before the punishment was imposed.
On the basis of the failure to be given a hearing, there are several case law which can be referred to, such as Lloyd v McMahon4. This case concerned the Liverpool City Council and the district auditor, who informed the council that he would take action under s 20 of the Local Government Act 1982 if the rate was fixed by the end of May. Despite his warnings, the council failed to set the rates until 14 June of that year (1984). The councillors were given the opportunity to make individual representations but they chose to respond collectively, claiming they were give no oral hearing.
Furthermore, Andy can claim for breach of Section 65 of the ECHR. However, section 6 does recognise the fact that public authorities should have a defence to any argument of illegality where '(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one of more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions'.
In this case, the Airline Pilots Association are representing a large number of its members as the Department for Transport has yet to issue licenses to over 50% of the Association's members within the three month time limit of the Act coming into force. Despite this problem, the Secretary of Statee has threatened ti impose sanctions on any airline using pilots who do not yet have a licence leading to a significant loss of earnings for many of the Association's members. Following the Secretaryy of State's proposed decision against the pilots, the Wednesbury principle comes to mind.
The Wednesbury case is one where basic principle of unreasonableness were reaffirmed and elaborated. In the Wednesbury case, 'the Wednesbury Corporation had discretionary powers under the Sunday Entertainments Act 1932, s 1(1) to grant licences to allow picture houses to open on Sundays, subject to 'such conditions as the authority should think fit to impose. The authority introduced a condition that no children under the age of 15 should be admitted to Sunday performances. It was contended that this condition was unreasonable'7.
In his judgement, Lord Greene set about the principle of strong unreasonableness which is also known as Wednesbury unreasonableness. The Wednesbury unreasonableness has become a standard that has been widely adopted when considering the status of the actions of public bodies. To put it shortly, the Wednesbury unreasonableness essentially comes to the conclusion that the decision was 'so unreasonable that no reasonable authority could ever have come to it'. Thus, when applying it to this case, the Airline Pilots Association can claim on the basis of Wednesbury unreasonableness in judicial review.
Therefore, I would suggest the Airline Pilots Association to claim for judicial review against the Secretary of State for Transport. (c) Flyinair is faced with the issue of legitimate expectation. A legitimate expectation is where a public body could be required to act in a certain way. In this case, Flyinair was informed by a senior civil servant in the Department for Transport that it would not be subject to any sanction for using pilots whose licences had not yet been issued until the backlog was resolved.
Following this, I would urge Flyinair to apply for the doctrine of estoppel. The doctrine of estoppel 'applies where an officer or other representative of an administrative agency; makes an adequate statement of fact or fact and law which is within his delegated or other lawful authority where the person dealing with that officer or representative relies on the statement of his detriment'8. Lord Denning further stated that '…
whenever government officers, in their dealings with a subject, take on themselves to assume authority in a matter with which he is concerned, the subject is entitled to rely on their having the authority which they asume. He does not know and cannot be expected to know the limits of their authority, and he ought not to suffer if they exceed it'9. This is further supported in the case of Lever Finance Ltd v Westminster (City) London Borough Council10.
In Lever Finance, the claimant was told by the planning officer that the proposed changes to the housing development were not material and thus, necessary for him to obtain further planning consent. Lord Denning held that 'if the planning officer tells the developer that a proposed variation is not material, and the developer acts on it, then the planning authority cannot go back on it.. If an offiver, acting within the scope of his ostensible authority, makes a representation on which another acts, then a public authority may be bound by it…
' (d) At first glance, the issue on David's case seems to only be dealing with the failure to provide a reasons for the failure of his application. It is important for the court to provide for a reason as it helps increase the public's confidence in administrative transparency as well as the preservance of natural justice. In Padfield v Minister of Agriculture, Fisheries and Food (1968), the House of Lords hled that an absence of reasons could raise an inference of no good reasons opening the decision up to judicial review.
Although there is no duty at common law to provide reasons, there is a statutory duty under section 10 of the Tribunals and Inquiries Act 1992. However, in the case of R v Secretary of State for the Home Department ex parte Doody, Lord Mustill stated that 'it essentially boils down to whether, in the circumstances, it is fair to refuse to provide reasons11'. This was further supported in the case Gallagher12, were 'the Secretary of State was not obliged to give specific reasons for making exclusion order where the evidence involved matters of national security13'.
Following the Fayed case, Lord Woolf MR stated that '.. the Home Secretary might refuse an application because he was not satisfied taht the aplicant fulfilled the rather nebulous requirement of good character… underlined the need for an obligation of fairness. ' In relation to the issue stated above, David would be unsuccessful in his application for a judicial review as on they would argue on the basis of national security due to his vocal opposition towards the government's introduction of the Airport Security Act.