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You are here: BAILII >> Databases >> The Law Commission >> Judicial Review And Statutory Appeals (Report) [1994] EWLC 226(6) (09 September 1994) URL: http://www.bailii.org/ew/other/EWLC/1994/226(6).html Cite as: [1994] EWLC 226(6)

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PART VI INTERIM RELIEF

6.1      The availability of interim relief against the Crown has been the subject of much debate in recent years. When the Commission's 1976 report was implemented it was generally accepted that no interim relief could be granted against the Crown or Crown servants,^[1] and the Commission's recommendation that courts should be empowered to declare the terms of an interim injunction which it would otherwise have granted, but for the Crown's special position,^[2] was left unimplemented. The general view was that the prohibition in section 21 (l)(a) of the Crown Proceedings Act 1947 on the court granting an injunction in any civil proceedings against the Crown prohibited both final and interim injunctions.^[3] The position has changed radically since the revision of Order 53 in the light of our earlier report.

The Present Position

6.2      In R v Secretary of State for Transport, ex parte Factortame Ltd ("Factortame (No 2)")the European Court of Justice stated^[4] that the principle of full effectiveness of Community law required the national court to set aside any rule of national law which prevented it from granting interim relief which ought otherwise to be available. The House of Lords^[5] then held that where European Community rights are involved (even only putative rights), the courts have jurisdiction to grant an interim injunction against ministers of the Crown and also to disapply an Act of Parliament.^[6]
6.3      There is also power to grant interim relief in cases which do not involve European Community rights but this result was achieved with more difficulty. In the late 1980s it was argued that the enactment of section 31 (2) of the Supreme Court Act 1981 and the introduction of the revised Order 53, rule 3(10) had given courts power to grant injunctions (and hence interim injunctions) against officers of the Crown, and also against government ministers acting under statutory powers in their own name, though not against the Crown itself. This argument, which had support both in the case law and in commentary,^[7] was finally rejected by the House of Lords in R v Secretary of State for Transport, ex parte Factortame Ltd ("Factortame (No l").^[8] It was held in that case that the court had no power to grant an interim injunction against a minister of the Crown. At that stage there was therefore a difference between domestic cases and Community cases which, in our view, was anomalous.^[9]
6.4      Since our consultation paper was published, however, the House of Lords, having heard extensive argument on the historical development of proceedings against the Crown, reconsidered its earlier decision. In Re M^[10] it held that there is jurisdiction under section 31 of the Supreme Court Act 1981 to make coercive orders such as injunctions and interim injunctions against ministers of the Crown acting in their official capacity. This would appear to be the case for both statutory and prerogative powers.^[11] The Crown, on the other hand, is not, as such, susceptible to an order.^[12]
6.5      Broadly speaking, the House's reasoning was based on (a) the need to enforce the rule of law,^[13] (b) the fact that the Crown Proceedings Act 1947 was designed to preserve pre-existing remedies against the Crown^[14] and, (c) the inapplicability of section 21(1) of the 1947 Act's prohibition on injunctive relief to judicial review proceedings because, by section 38(2), Crown side proceedings, including judicial review, are not civil proceedings.^[15] Once section 21 of the Crown Proceedings Act was out of the way, section 31(2) of the Supreme Court Act 1981 and Order 53, rule 3(10) provided positive authority for interim injunctions. The liability of government ministers acting in their own name was seen as analogous to their long established liability to prerogative orders of mandamus and prohibition.^[16] The position in England has thus fundamentally changed; the difference between cases involving European Community rights and purely domestic cases has been removed, and it has been made clear that the statutory provisions which were thought to preclude interim relief against ministers and government departments do not in fact have this effect.
6.6      In Scotland the position is different. In McDonald v Secretary of State for Scotland the Inner House declined to follow M. It stated that an interim interdict is not available against the Crown: there is no equivalent of section 38(2) of the Crown Proceedings Act 1947 to restrict the operation of section 21 in respect of the court's supervisory jurisdiction and an action against the Secretary of State for Scotland was an action against the Crown.^[17] Principles on which interim relief is granted^[18]
6.7      The tests generally applicable when a court is considering whether to grant interlocutory injunctions are those enunciated in American Cyanamid Co v Ethicon Ltd.^[19] The extent to which they required modification where relief is sought against a public authority was first considered in cases involving local authorities.^[20] In Factortame (No 2), the House of Lords considered the tests where relief is sought against the Crown. Lord Goff stated that the court had first to consider the availability to either side of an adequate remedy in damages. As public authorities are not generally liable in damages in respect of ultra vires acts,^[21] this element of the American Cyanamid test did not provide much assistance in public law cases. As regards the balance of convenience, the court had to look more widely, taking account of the public in general to whom an authority owed duties. When exercising its discretion, Lord Goff considered that:

... the court should not restrain a public authority by interim injunction from enforcing an apparently authentic law unless it is satisfied, having regard to all the circumstances, that the challenge to the validity of the law is, prima facie, so firmly based as to justify so exceptional a course being taken.^[22]

We have referred to the fact that interim relief is nearly always sought and often granted in homelessness cases.^[23] In other cases, the grant of leave operates as a stay of the proceedings to which the application relates unless the Court orders otherwise.^[24] Although public authorities seeking interim relief may not be required to give an undertaking to pay damages,^[25] in dealing with an application for interim relief the court takes account of whether such an undertaking has been offered by an applicant.^[26]

Interim relief against the Crown in domestic cases

6.8      The absence of interlocutory relief against the Crown and its officers was said to be

"a serious procedural defect in the English system of administrative law".^[27]

Our provisional view in the consultation paper was that the Crown's continued immunity from interim relief was not sustainable on grounds of legal principle. We, like our predecessors in 1976, were not convinced by the legal arguments for continuing to protect the special position of the Crown. We supported the need for the court to have effective powers of providing interim protection whilst an arguable case for judicial review against a minister in his or her official capacity or against a government department is pending. Our provisional view was overwhelmingly supported on consultation and as a result of the decision in Re M^[28] it is now the law.

6.9      Although one consultee said that there was an intellectual argument justifying the different treatment of central government and ministers in European Community and domestic cases, there was no support for the continuation of this distinction even before the decision in M. Equally, the Crown never acts save by way of minister or authorised person^[29] and, provided the position can be held pending the substantive hearing, there was little if any support for relief being given against the Crown as opposed to the minister acting in his or her official capacity.
6.10      There are three principal arguments in favour of interim relief against the Crown.

(a) The constitutional need to enforce the rule of law.^[30]

(b) Where the issue before the court relates to protection of the citizen against unauthorised governmental action, the court needs, as in any other form of litigation, to have adequate powers to maintain the interim position and to avoid irreparable harm. Case law involving public authority respondents, and Crown and Crown officer respondents in EC related cases, has helped to develop principles taking account of the wider public interest and obligations of the respondents.

(c) The unavailability of monetary compensation in respect of ultra vires acts makes it particularly important that the court should be able to grant interim protection. The Crown, and now local authorities charged with enforcing the law,^[31] will not be required to give an undertaking to pay damages if it subsequently transpires that an interim injunction to restrain a breach of the law should not have been granted. In any event the possibility of recovering damages is remote.^[32]

6.11      The arguments against the availability of interim relief against the Crown are as follows:

(a) There is a necessary presumption of validity in favour of the decisions taken by the Crown and its officers which should be maintained until shown to be wrong. By granting interim relief, the court would interrupt the carrying out of the duties imposed on the authority, casting doubt on that presumption of validity and overstepping the boundary between adjudication and administration before the issue of the validity of what has been done has been properly determined.^[33]

(b) There is a need for the administration to act swiftly if necessary without fear of inappropriate judicial intervention.

(c) Injunctive relief ought generally not to be ordered if the parties are willing to undertake to maintain the status quo pending the full trial.^[34] The Crown and its officers will generally give, and will honour, such undertakings. The use of compulsion, where consensus is available, is inappropriate.

(d) The courts are traditionally reluctant to make orders which they cannot enforce. This is particularly relevant in the field of discretionary remedies, whether for specific performance or injunctive relief, or otherwise. The scope for enforcing an order against the Crown is restricted. If the reality is that the court must depend on consensual compliance, that ought to be reflected in the nature of the directions it gives.

6.12      Our reasons for rejecting the second set of arguments are:

(a) The presumption of validity applies to the activities of other public authorities which are not protected against the making of interim orders.^[35]

(b) The need for swift action in emergencies is no argument against the need for the availability of interim protection in non-urgent situations and ignores the discretionary nature of such interim relief.

(c) The ability of the Crown to give undertakings which reflect the possibly dubious validity of acts which it has previously executed removes much of the force from the argument that the court should not grant interim relief for a similar precautionary purpose.

(d) Orders of mandamus and prohibition have habitually been made against ministers and the Crown itself is (to some extent, namely in the form of its ministers and servants) subject to habeas corpus.

6.13      We therefore recommend that interim relief should continue to be available against the Crown in domestic cases. In the light of Re M it is arguable that further reform and tidying up could be achieved by an amendment to the rules and without amendment to statute. We consider that statutory provision is desirable. First, it would make the position more transparent. Secondly, the reasoning of the Inner House in McDonald's case and the position in Scotland^[36] may put into question one of the factors underpinning the decision in Re M, the view that the 1947 Act was designed to preserve pre-existing remedies against the Crown, and make that decision vulnerable to further consideration by the House of Lords.^[37] There was wide support for our provisional conclusion that the Crown's immunity from interim relief is not sustainable on grounds of legal principle and we consider it appropriate to deal with the matter in primary legislation so as to remove any vulnerability. We recommend that there should be statutory provision for interim relief against ministers in their official capacity and against government departments in judicial review proceedings. (Draft Bill, clause 1, new section 31B(5)).
6.14      The following issues now arise for consideration. First, should interim relief be available prior to the preliminary consideration of the application for judicial review?^[38] Secondly, should the form of such interim relief be by interim injunction, stay, or interim declaration? Thirdly, is separate provision needed where legislation, whether delegated legislation or, where European Community rights are involved, primary legislation, is impugned? Finally, should the statute or the rules set out the principles upon which interim relief is to be granted? These principles might be set out either in general terms or, if special provision is needed where legislation is impugned, in such cases.

Interim relief prior to the decision to allow an application to proceed to a substantive hearing

6.15      While there have been suggestions that there is an inherent power to grant such relief,^[39] this seems inconsistent with the provisions of Order 53, rule 3(10) which expressly states that interim relief may be granted "where leave to apply for judicial review is granted" (emphasis added). There was widespread support for the inclusion of a power to order such interim relief, although the Treasury Solicitor's Working Group considered that it would undermine the leave process and that until leave was granted there was no substantive legal process in existence.^[40] Interim relief at this initial stage was seen as a power to be used sparingly; i.e. in emergencies. Most of the examples given as to when it would be appropriate concerned immigration, where the applicant is about to be deported, or homelessness, where the applicant is about to be evicted.
6.16      The Commission agrees with the nominated judges and other consultees that it is not desirable that there should be pressure to grant leave (or, if our recommendations are accepted, to permit the application to proceed to a substantive hearing) in order to be able to maintain the status quo pending further consideration, whether by granting an interim injunction or a stay.^[41]
6.17      We consider that interim relief prior to the decision to allow an application to proceed to a substantive hearing should only be granted in cases of urgency where, if interim relief was not granted at this initial stage, a subsequent decision to allow the application to proceed would be rendered nugatory or of much less value. We expect that in practice such relief will only be granted at this stage provided that the process for the preliminary consideration of this matter has been initiated by the applicant or the court receives an undertaking that it will be initiated as soon as is reasonably practicable.^[42] W e recommend that it be made clear in the Rules that there is jurisdiction to grant interim relief before it has been decided in the preliminary consideration of an application to allow it to proceed to a substantive hearing (Draft Order 53, rule 5(1)).

The form of interim relief

6.18      The consultation paper sought views on the relative merits of the different techniques for granting- interim relief; stays, interim injunctions and interim declarations. The last of these is at present unknown to English law.^[43] The overall result was not conclusive. Consultees accepted that what was needed was an effective way of preserving the status quo and a rationalisation of the different techniques for doing so but some reservations were expressed about interim declarations. It was said to be illogical to declare one day in interlocutory proceedings that an applicant has certain rights and on a later day that he has not^[44] and it was suggested that interim declarations were inconsistent with the presumption of legality. Reservations were also expressed about the appropriateness of stays. The advantages and disadvantages of the different methods of granting interim relief are summarised below.
6.19      Interim injunctions: The advantages of these are that they are familiar, they are coercive and they are targeted at a person who is told what to do or not to do. The principles upon which they are awarded are familiar. The courts would be able to build on the American Cyanamid principles as modified in cases concerning public authorities.^[45] However, the coercive nature of the remedy continues to be seen as a disadvantage by some, including possibly Lord Woolf and those who agreed with him on enforcement in Re M.^[46]
6.20      Some commented that as the test for granting an interim injunction in public law cases is satisfaction by the court that the challenge to the administrative or legislative act is "prima facie so firmly based as to justify so exceptional a course being taken"^[47] an interim injunction may inappropriately suggest that the court has already made up its mind as to the likely grant of final relief. Finally, although in Factortame (No. 2) an interim injunction was ordered in respect of an Act of Parliament,^[48] in the case of legislation such an injunction is not entirely appropriate since it is only addressed to the law maker or those who implement or enforce it, whereas the "law" may be relied on by a wide range of third parties. For instance, in a Factortame scenario, if a person made a contract to supply fish caught in British waters to a processor, and that person was prohibited from fishing under the 1988 Act and the regulations made under it, it is not at all clear whether this contract, which was prima facie illegal under the Act and the regulations, would be affected by an injunction addressed to the listed range of persons mentioned above.
6.21      Interim Declarations: The advantages of these are that they are not coercive, they specifically address the interim position and are better suited to clarify the position of third parties. There is no reason why they should not be granted on the same basis as interim injunctions. In New Zealand there is provision for interim declaratory relief in judicial review proceedings against the Crown in lieu of injunctive relief which is not available,^[49] and such relief is more generally available in Canada.^[50] Such declarations would refer to a right or obligation that exists prima facie and are not therefore illogical.^[51] In making a merely interim declaration, the judge reserves his or her right and admits an obligation to re-examine the question after a substantive hearing at the trial.^[52] In our view this consideration also meets the argument that a declaration in an interim form^[53] may inappropriately suggest that the court has already made up its mind as to the likely grant of final relief.
6.22      We believe that the perceived difficulties arising from the presumption of validity^[54] are met by the fact that the burden of proof lies on the party challenging the decision.^[55] It was also commented that it might be more difficult to deal with undertakings regarding damages by the applicant where an interim declaration is given.^[56] We believe that where it is clear that an activity should be stopped the principles developed in relation to injunctions could be applied or an interim injunction granted. Finally, it was argued by some that if interim injunctions and stays were available in respect of all the matters which could be the subject of an application for judicial review there is little point in an additional remedy: an interim declaration might simply create an overcomplicated and confusing regime. The validity of this argument does, however, depend on acceptance of the availability of stays in respect of administrative and legislative acts, a matter with which we deal below.
6.23      Stays: The advantages of these are that they are familiar since they represent the form in which interim relief has hitherto been granted in prerogative proceedings.^[57] Stays have been said to be distinguishable from injunctions in being directed to the court or decision maker rather than to a party to litigation and on this ground the Court of Appeal has held that they are generally available to restrain the Crown pending a substantive hearing.^[58] This has, however, been doubted by the Privy Council^[59] and if stays are to be used generally it is important that the Rules should resolve the conflict and make it clear that a stay can be given in respect of an administrative or legislative act and its implementation as well as to proceedings before courts and tribunals. As against this it was argued by some consultees that stays are of limited use in respect of administrative and legislative acts and decisions and their implementation since they cannot provide mandatory relief and because of difficulties with third parties similar to those mentioned for interim injunctions.^[60]
6.24      Third parties: As far as the position of third parties is concerned, it is clear that the court, which takes account of the position of the public in general to whom an authority owes duties, will also take account of the position of identified third parties who would be detrimentally affected by interim relief, whatever its form.^[61] It is likely that whatever technique is used to preserve the status quo pending the hearing, the court will have regard to the position of third parties in determining the balance of convenience.

Recommendation on the form of Interim Relief

6.25      Although the essential element in interim relief is to ensure that the court has adequate power to preserve the status quo until the determination of the case, the differences between relief primarily directed at the parties, relief primarily directed at a court or tribunal and the particular problems where third parties, a section of the public or the public in general are affected by the challenge, do suggest that provision for more than one form of interim relief is appropriate.
6.26      In different contexts the court may consider it necessary to restrain the taking of a decision, the implementation of a decision, or the making of a byelaw. It may also consider it necessary to require appropriate action to be taken in such contexts. A stay, as the expression has generally been understood, primarily relates to pending proceedings before a court or tribunal, whether civil or criminal. Now that interim injunctions are available against ministers acting in their official capacity, we believe there is no longer any need to take a wide view of "proceedings" in Order 53 rule 3(10) or to amend that rule to put it beyond doubt that an administrative decision which has already been made and is in the course of being implemented can be "stayed".^[62] In such cases, if it is desirable to make a non-coercive order, an interim declaration might be thought preferable in view of the problems over stays we mention in paragraph 6.23 above. This would leave it open to courts to choose the most appropriate form of interim relief, and it could be that interim declarations would primarily be used in cases in which the court desired to give temporary guidance to third parties. In the Commission's 1976 report it was considered that provision for interim declaration should be contained in primary legislation, as it is in New Zealand. We agree.

6.27 We accordingly recommend that there should be provision for interim injunctions, interim declarations and stays of proceedings before courts and tribunals in proceedings by way of judicial review (Draft Bill, clause 1, new section 31A(4)(a); Draft Order 53 rule 5).

Should the principles governing the availability of interim relief be set out in statute or the rules?

6.28      The Treasury Solicitor's Working Group considered that the principles should be set out because of the importance and sensitivity of such relief particularly where given against government ministers. The Lord Chancellor's Department, on the other hand, doubted that this should be done. Although in certain areas we are recommending that guidance should be provided in the rules,^[63] for the reasons given below, we do not consider that at this stage the principles governing interim relief should be set out in the rules.
6.29      In over a third of judicial review cases proceedings are brought in respect of the actions of local government^[64] and in these cases, where interim relief has been available for some time, there is no evidence that the system is working unsatisfactorily. In the case of interim relief in respect of the decisions of central government or, where European Community rights are involved, primary legislation, there is less experience but the courts appear to be proceeding by analogy with the jurisprudence in the local government cases.^[65] Other than the natural fear of the unfamiliar, there is no evidence that these principles are working in an unsatisfactory manner.^[66] Furthermore, we consider that the very fact that this jurisdiction is, in respect of central government and-primary legislation, a new one is a reason for not fettering it either by rules or statute. The principles upon which interlocutory injunctions are given in civil proceedings are not set out in Order 29 and we do not believe that they should be in judicial review proceedings.

Where primary or delegated legislation is impugned

6.30      Some consultees considered that greater care is needed before awarding interim relief where delegated legislation or, where European Community rights were involved, primary legislation was the subject of a challenge. The reason generally given for this was the greater impact on third parties. It is undoubtedly the case that courts will be very much more reluctant to make interim orders in such cases. However, the unavailability of monetary compensation in respect of ultra vires acts means that it is likely that in certain cases, such as Factortame, it will be necessary to grant interim protection. The question whether special provision should be made for the case of the review of legislative action is linked to the last question considered, i.e. the extent to which the statute or the rules should set out the principles on which the court should act in such cases.
6.31      Although we recognise that there are differences between the review of legislative and administrative powers we do not consider that statute or the rules should create a jurisdictional difference between the two in the context of interim relief. First, it is not only in the case of the review of legislation that third parties are likely to be affected. This is possible in many public law contexts, in particular in relation to planning and other licensing systems, whether for trading or other activities. Secondly, the distinction between "legislative" and "administrative acts has proved to be as, if not more, difficult than that between "administrative" and "judicial" acts.^[67] For these reasons, we do not consider it appropriate to recommend that the power to grant interim relief should not be available in cases where primary or delegated legislation is impugned.

Note 1   Report on Remedies in Administrative Law (1976) Law Com No 73, paras 23 and 29. It has always been clear that relief can be obtained against other public authorities such as local authorities.    [Back]

Note 2   Ibid, para 59(i).    [Back]

Note 3   For a defence of that position, see Sir John Laws in M Supperstone QC and J Goudie QC, Judicial Review (1992), pp 253-258.    [Back]

Note 4   Case C 213/89, [1991] 1 AC 603, 644.    [Back]

Note 5    [1991] 1 AC 603.    [Back]

Note 6   In Factortame (No 2) it was ordered that “pending final judgment or further order by the court, the operation of Part II of the [Merchant Shipping Act] of 1988 and of the [Merchant Shipping (Registration of Fishing Vessels) Regulations] of 1988 be disapplied and the Secretary of State should be restrained from enforcing it in respect of any of the applicants and any vessel owned (in whole or in part), managed, operated or chartered by any of them so as to enable registration of any such vessel under the [Merchant Shipping] Act of 1894 to continue in being”: [1991] 1 AC at 609F.    [Back]

Note 7   R v Secretary of State for the Home Department, ex p Herbage [1987] QB 872. See also R v Licensing Authority, ex p Smith Kline (No 2) [1990] 1 QB 574. See further G Aldous and J Aldir, Applications for Judicial Review (1985), 42-3, 70-1; R Gordon, Judicial Review: Law and Procedure (1985), para 5-09; C Emery and B Smythe, Judicial Review: Legal Limits of Oficial Power (1986), pp 295-6. See, in relation to government ministers acting in their own name, HWR Wade, Administrative Law (6th ed, 1988) p 589.    [Back]

Note 8   [1990] 2 AC 85.    [Back]

Note 9   Consultation Paper No 126, para 6.6. The two tier system was criticised by Lord Donaldson MR as being wrong in principle: M v Home Office [1992] 1 QB 270, 306H - 307A; and was said by Lord Woolf in Re M to be an unhappy situation: [1994] 1 AC 377, 407 A-B.    [Back]

Note 10   [1994] 1 AC 377.    [Back]

Note 11   Ibid, 417D - E.     [Back]

Note 12   Ibid, 395D, 415 - 416. In relation to enforcement, there is, however, a difference between Lord Woolf and Lord Templeman, the latter (395E - F) accepting that ministers in their official capacity are subject to the coercive powers exercisable in the contempt proceedings, but Lord Woolf (425D - E), with whom Lords Keith, Griffiths and Browne-Wilkinson agreed, thought that the sanction for a finding of contempt by a government department or minister should be a matter for Parliament. For comment see R Brazier, “Ministers in Court: The Personal Legal Liability of Ministers” (1993) 44 NILQ 317, 323 - 324.    [Back]

Note 13   [1994] 1 AC 377, 395, 407.    [Back]

Note 14   Ibid, 411 - 412, 415.    [Back]

Note 15   Ibid, 411 - 412,421B. See also 407A. But note that the words with which s 38(2) begins state that the meanings are only to apply “except in so far as the context otherwise requires”: on which see MH Matthews “Injunctions, Interim Relief and Proceedings against Crown Servants” (1988) 8 OJLS 154, 159.    [Back]

Note 16   Re M [1994] 1 AC 377, 405 - 417. Eg Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997.    [Back]

Note 17   1994 SLT 692. As the case did not involve the supervisory jurisdiction, strictly this was obiter, but the point appears to have been fully argued. In so far as the reasoning in M depended on the view that the Crown Proceedings Act 1947 was designed to preserve preexisting remedies against the Crown, this case is troublesome because it is stated that it was clear that in Scotland, before the 1947 Act, the Crown and its officers had been regarded as liable to having interim interdict pronounced against them: the Lord Justice Clerk at pp 695, 698; British Medical Association v Greater Glasgow Health Board [1989] 1 AC 1211, 1225.    [Back]

Note 18   See generally MH Matthews, “Injunctions, Interim Relief and Proceedings against Crown Servants” (1988) 8 OJLS 154, 163-168.    [Back]

Note 19   [1975] AC 396.    [Back]

Note 20   Smith v ILEA [1978] 1 All ER 41 1; Meade v Haringey LBC [1979] 1 WLR 637.    [Back]

Note 21   Bourgoin SA v Ministry of Agriculture Fisheries and Food [1986] QB 716; R v Knowsley MBC, ex p Maguire (1992) 90 LGR 653.    [Back]

Note 22   [1991] 1 AC 603, 674D. See also R v Secretary of State for the National Heritage, ex p Continental Television BVio [1994] COD 121 (CA).    [Back]

Note 23   Para 4.4 above.    [Back]

Note 24   On the availability of stays in respect of administrative acts as opposed to proceedings before courts and tribunals, see para 6.23 below.    [Back]

Note 25   Kirklees MBC v Wickes Building Supplies Ltd [1993] AC 227.    [Back]

Note 26   R v Inspectorate of Pollution, ex p Greenpeace Ltd [1994] 1 WLR 570 (CA). See also Scotia Pharmaceutical International Ltd v Secretary of State for Health and Norgine Ltd [1994] COD 241 (DC). On the position of third parties, see para 6.24 below.    [Back]

Note 27   R v Inland Revenue Commissioners, ex p Rossminster Ltd [1980] AC 952, 1014H (per Lord Diplock).    [Back]

Note 28   [1994] 1 AC 377.    [Back]

Note 29   The Crown Proceedings Act 1947, s 17 sets out a list of authorised departments against whom proceedings may be brought. See Dunn v MacDonald [1897] 1 QB 555 for the presumption that ministers act as agents of the Crown.    [Back]

Note 30   Re M [1994] 1 AC 377, 395, 407 (Lord Templeman and Lord Woolf), para 6.5 above.    [Back]

Note 31   Kirklees MBC v Wickes Building Supplies Ltd [1993] AC 227.    [Back]

Note 32   Note, however, that in cases involving EC law, this may be less remote. See further Cases C-6/90 & 9/90, Francovich v Italian Republic [1992] IRLR 84 (ECJ) but cf Paula Faccini Don v Recreb Srl Case C91/91 (ECJ) The Times 4 August 1994; Kirklees MBC v Wickes Building Supplies Ltd [1993] AC 227.    [Back]

Note 33   R v Inland Revenue Commissioners, ex p Rossminster Ltd [1980] AC 952, 1001, 1027.    [Back]

Note 34   As in M v Home Office [1992] 1 QB 270 (CA); Re M [1994] 1 AC 377 (HL).    [Back]

Note 35   MH Matthews, “Injunctions, Interim Relief and Proceedings against Crown Servants”, (1988) 8 OJLS 154, 156.    [Back]

Note 36   See n 17 above.    [Back]

Note 37   See also n 15 above.    [Back]

Note 38   Ie prior to the granting of leave.    [Back]

Note 39   White Book para 53/1-14/26; Re M [1994] 1 AC 377, 421-2.    [Back]

Note 40   But costs have been ordered in an “ex parte on notice” leave application on the ground that leave proceedings are “proceedings” within the meaning of Supreme Court Act 1981, s 5 1: R v Darlington BC, ex p Association of Darlington Taxi Owners (No 2), The Times 14 April 1994.    [Back]

Note 41   Where this pressure prevails it may then be difficult to set aside the grant of leave: White Book para 53/1-14/33.    [Back]

Note 42   The expression “forthwith” is usually used. This means “as soon as possible” and this depends on the circumstances of each case: Sameen v Abeyewickrema [1963] AC 597.    [Back]

Note 43   R v Inland Revenue, ex p Rossminster [1980] AC 952, 1027; Riverside Mental Health NHS Trust v Fox, The Times 28 October 1993.    [Back]

Note 44   See R v Inland Revenue Commissioners, ex p Rossminster Ltd [1980] AC 952, 1027 (Lord Scarman); International General Electric Company of New York Ltd v Commissioners of Customs and Excise [1962] Ch 784, 790.    [Back]

Note 45   See para 6.7 above.    [Back]

Note 46   See n 12 above.    [Back]

Note 47   Factortame (No 2) [1991] 1 AC 603, 674 D.    [Back]

Note 48   See n 6 above.    [Back]

Note 49   Section 8(l)(c) and (2) of the Judicature Review Amendment Act 1972, introduced in 1977. Relief under section 8(l)(c), declaring a licence that has been revoked or suspended to continue in force until the final determination of the application for review, is coercive in nature, while relief under section 8(3) merely declares what the Crown ought not to do pending the final determination.    [Back]

Note 50   Ollinger v Saskatchewan Crop Insurance Corp [1992] 4 WLR 519 (interim declarations in lieu of specific performance and injunctions).    [Back]

Note 51   Yotvin v State of Israel (1979) 34 PD(2) 344 Supreme Court of Israel, set out and discussed in Zamir & Woolf, The Declaratory Judgment 2nd ed, p 301. See also ibid, p 85.    [Back]

Note 52   Yotvin v State of Israel (1979) 34 PD(2) 344 (Cohn and Barak JJ) (Zamir and Woolf, op cit pp 304, 306, 308).    [Back]

Note 53   This was also said about interim injunctions: paras 6.19 - 6.20 above.    [Back]

Note 54   See para 6.18 and (albeit in the context of injunctions) para 6.11(a).    [Back]

Note 55   See PP Craig, Administrative Law (3rd ed, 1994), p 730 and Zamir and Woolf, op cit, pp 85-86.    [Back]

Note 56   A party who obtains an interlocutory injunction is normally required to give an undertaking to make good to other parties any damage which the latter may suffer as a result of the injunction if it proves ultimately to have been wrongly granted: Smith v Day (1882) 21 Ch D 421, 424, 425. The rule may not apply where the plaintiff is legally aided and cannot give a satisfactory undertaking as to damages: Allen v Jambo Holdings Ltd [1980] 1 WLR 1252 (CA); or where the Crown, or a public authority on behalf of the Crown, seeks to enforce the law and there is no remedy except the injunction sought: Kirklees MBC v Wickes Building Supplies Ltd [1993] AC 227 (HL).    [Back]

Note 57   O 53, r 3(10).    [Back]

Note 58   R v Secretary of State for Education and Science, ex p Avon County Council [1991] 1 QB 558, 560-2.    [Back]

Note 59   Minister of Foreign Affairs, Trade and Industry v Vehicles and Supplies Ltd [ 1991] 1 WLR 550. The authorities are discussed in Consultation Paper No 126 paras 6.8 - 6.10. For conflicting views see Sir John Laws and R Drabble in Supperstone and Goudie eds, Judicial Review (1992) pp 249-252 and 363-366 respectively supporting and opposing the restriction of stays to the proceedings of lower courts and tribunals.    [Back]

Note 60   See para 6.20 above.    [Back]

Note 61   For a recent example see R v Inspectorate of Pollution, ex p Greenpeace Ltd [1994] 1 WLR 570 (CA) in which it was said by Scott LJ that if the real purpose of interlocutory relief in a judicial review case is to prevent executive action by an identified third party being carried out pursuant to the decision under attack, the more suitable procedure would be to have the third party in question joined and then to seek an interlocutory injunction against that party, rather than to seek a stay of the decision.    [Back]

Note 62   Ie the decision of the Privy Council in Minister of Foreign Affairs, Trade and Industry v Vehicles and Supplies Ltd [1991] 1 WLR 550 could be allowed to prevail. See para 6.23 above.    [Back]

Note 63   Eg see para 5.15 above.    [Back]

Note 64   35.1% of all applications for leave to seek judicial review in the fist quarter of 1991 were against local authorities. See M Sunkin, L Bridges, G Mészáros, Judicial Review in Perspective (1993) The Public Law Project, p 24.    [Back]

Note 65   See the discussion in para 6.7 above.    [Back]

Note 66   Ibid.    [Back]

Note 67   Compare Blackpool Corporation v Locker [1948] 1 KB 349 and Lewisham MBC v Roberts [1949] 2 KB 608. See also F Hoffmann-La Roche and Co AG v Secretary of State for Trade and Industry [1975] AC 295.    [Back]