Citizen & State

Judicial Review

This problem question necessitates a discussion surrounding the area of Administrative Law in particular Judicial Review. In order to properly advise Electrucs4u as to the grounds they may have for challenging the decision made by the SBQAA by way of judicial review, one must first establish what judicial review is, and whether it could be a course of action available in this situation. Judicial Review is the practice where the courts are able to examine the decision making processes of public authorities and officials. Judicial review has been developed to ensure that the public bodies which exercise law making power or adjudicatory powers are keeping within the margins of their conferred power. It is important to point out that Judicial Review is not an appeal, but a separate process; an application to the courts to review a decision. The distinction between review and appeal is important to understand and was exemplified by Lord Greene MR in Associated Provincial Picture Houses Ltd v. Wednesbury Corpn[1].

Judicial Review must be used as a remedy when challenging the decision of a public body, as in O’Reilly v Mackman[2]. In this particular case it was held that to use the private law process when Judicial Review was available, it was consequently an abuse of process. However Lord Diplock expressed this was a general rule and there would be some exceptions; which were later developed from precedent. Parpworth explains, The House of Lords in Mercury Communications Ltd v D.G of Telecommunications[3] took a relaxed approach to the rule in O’Reilly because of the need for flexibility rather than compartmentalizing cases as either public or private law matters.

As a claim for Judicial Review can only be made against a public body, it is important to distinguish whether a body is open to be able to make a claim for judicial review essential. For e.g. in R v Panel on Takeovers and Mergers ex p Datafin Plc[4] the Court of Appeal expressed that an organisation can be recognised as a public body due to the nature of the power it exercises and introduced the ‘but for’ test. This can be contrasted with companies which may still satisfy the ‘but for’ test, but an application for Judicial Review will be defeated if they are a private body. In contrast to this case it can be established that non public bodies cannot be open to make a claim for judicial review as can be shown in R v. Disciplinary Committee of the Jockey Club ex p Aga Khan [5] the court held that the matter was of a contractual sort and therefore judicial review could not be used. Judicial review primarily sets out to not decide whether a decision made is right or wrong but rather with the process used to reach that decision, this was noted in the case Chief Constable of the North Wales Police v. Evans. [6]

There are different grounds for review, which were established by Lord Diplock in the case of Council of Civil Service Unions v. Minister for the Civil Service [7] the grounds include the notions of illegality, irrationality, proportionality and procedural impropriety. In regard to the question Robert and Lou would have to assess whether any of the above grounds would apply to them. The first ground to consider would be illegality, whereby if the public authority exceeds the limits given to it, it will be guilty of acting illegally. In Vine v. National Dock Labour Board [8] the court held that Vine’s dismissal was illegal as the powers involved were non-delegable. The second ground for review is irrationality, according to Lord Diplock: ‘Irrationality…applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had his mind to the question to be decided could have arrived at it’. [9]

The term irrationality is derived from Associated Provincial Picture Houses Ltd v. Wednesbury Corpn [10] “The decision of a pubic body will only be deemed unreasonable if they had reached the decision in a manner so unreasonable that no other reasonable authority could have reached it” it is often penned ‘Wednesbury unreasonableness’ [11]. The point was also proven in Hall & Co v Shoredam-by-the-sea[12] and Black House v Lambeth LBC[13] Similarly Electrucs4u could be able to apply for judicial review under the irrationality grounds. It would be fair for Electrics4u to argue the irrationality of a Quality Assurance Agency who doesn’t feed back to its members when they are performing below standard. It would also be more reasonable if the SBQAA, as an independent and self regulating body, conducted a impartial investigation into the allegations involving both parties and arriving at a fairer decision than could ever be made by only listening to one side of the argument.

Proportionality is closely linked to irrationality and has only recently been accepted in UK courts due to the Human Rights Act 1998 and the European Communities Act 1972. ‘This principle often entails a balancing exercise that requires a court to ask whether the means used to achieve a particular end are justified relative to the impact on an individual’s fundamental rights’. [14] The ground of proportionality can be reflected in R v. Secretary of State for the Home Department, ex p Brind [15] Similarly in R (on the application of Daly) v. Secretary of State for the Home Department [16] the courts held that when considering what is a breach of someone’s human right the court must go beyond rational and consider what is proportionate. It could be considered somewhat harsh for Electrics4u to have their SBQAA trademark revoked without been given the opportunity to represent themselves at the hearing and to defend the allegations. The SBQAA has at no point prior to the 10th of December 2009 attempted to contact electrucs4u to make them aware of customer dissatisfaction; they have not issued any warnings or discussed the possibility of remedial action. Therefore for the SBQAA to go from no contact to instant dismissal without following a more appropriate course of communication and warnings could be considered to be harsh. It would also be fair to argue that if Electrics4u had no feed back to the substandard nature of their work then how could they be expected to rectify it. The scenario doesn’t detail exactly how many complaints were made or how they were spread over Electrics4u’s 10 year membership, nor does it mention the number of customers they have carried out work for. These are all factors which SBQAA should have considered and which could affect an application for judicial review on the grounds of proportionality.

Finally the last ground to review is procedural impropriety, if the procedures prescribed by the statute have not been followed accordingly or if the rules of natural justice have not been adhered to. ‘There are two established rules of natural justice: the ‘rule against bias’ and the ‘duty to hear the other side’ alternatively known as the ‘duty to act fairly’ [17] The test for bias can be reviewed in the case of Porter v. Magill [18] Usually the rules of natural justice were not looked upon as being important, however this was overturned in the House of Lords decision in Ridge v. Baldwin [19] an individual’s rights and freedoms must possess a high level of fairness. Assuming that electrics4u’s understanding of their membership rules are accurately presented then it is safe to say that the SBQAA are guilty of breaching their own procedures and their decision could be quashed on grounds of procedural impropriety. The two grounds that would have to be considered before Electrics4u could follow this course, would be whether the SBQAA had acted with bias and whether they had heard both sides of the argument. Nemo judex en causa sua translates to no man shall be a judge in his own cause, on this ground it would be hard to argue that the SBQAA had acted with bias. They are an independent self regulating quality assurance body and wouldn’t have any bias towards a complainant over their member business. The second ground, sometimes referred to as audi alteram partem or hear both sides, is certainly pertinent in this case. In Cooper v Wandsworth Board of Works(1863) it was held that Cooper must be allowed to put his case forward. The same is true with Electrics4u, they should have been given the opportunity to put their side of the story forward and attempt to answer the allegations made by the SBQAA on behalf of their customers.

As discussed above Electircs4u have several grounds to challenge SBQAA using judicial review. They have already completed one step towards this challenge by stating, in writing, the decision they wish to challenge and outlining the facts. It is also safe to say that Electrics4u have sufficient interest in the issue to challenge the SBQAA. They revocation of a recognised trademark could directly affect their business interests and ability to attract new customers. S.31(1)(3) of the Supreme court act 1981 outlines that a claim can only be made if the individual has sufficient interest or locus standi. This has been contested in several cases. In R v IRC ex p National Federation of Self Employed and Small businesses [1981][20] the federation were refused the right to challenge as they were not deemed to have sufficient interest. However in R v Secretary of State for the Environment ex p. Greenpeace ltd (no2) [1994][21] Greenpeace were granted permission to challenge. Electrics4u’s situation is more clear cut than these as they have a direct interest in the challenge. They would have to make their application in a short space of time as the Senior Court Act S,31(6) states that “Court may refuse to grant leave for the making of an application or any relief sought on the application, where it considers unnecessary delay in making the application has taken place”. Furthermore the Civil Procedure Rule 54 (5) states that a “Claim form must be filed promptly and not later than 3 months after the grounds to make the claim first arose”. In this case the grounds occurred on the 10th of December and assuming that the present date in the scenario is shortly after the 5th January, then Electrics4u would only have around a month to file a claim to challenge SBQAA.