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

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APPENDIX A

Draft Administration of Justice Bill

ARRANGEMENT OF CLAUSES

Clause 1.	Judicial review.
2	Cases stated.
3	Crown application.
4	Consequential amendments and repeals.
5	Short title, commencement and extent.
SCHEDULES:
Schedule 1	Consequential amendments.
Schedule 2	Repeals.



EXPLANATORY NOTES

Clause 1 replaces section 31 of the Supreme Court Act 1981 with four new sections, sections 31 to 31C.

Section 31 subsection (1) and (3) provide for the replacement of the latin titles of the prerogative orders, without effecting any substantive changes to the orders. Subsections (1) and (3) implement para 8.3 of the report.

Subsection (2) reproduces the existing section 31(1) (a) which requires an applicant for one of the prerogative orders to make an application for judicial review. Subsection (2) implements paragraph 8.3 of the report.

Subsection (4) paragraph (a) is a re-enactment of section 31 (5) of the Supreme Court Act 1981.



EXPLANATORY NOTES

Subsection (4) paragraph (b) and subsection (5) give the court an additional power to substitute in limited circumstances its own decision for the decision of an inferior court or tribunal. Subsection (4) paragraph (b) and subsection (5) implement paragraph 8.16 of the report.

Subsection (6) re-enacts section 29(2) of the Supreme Court Act 1981, which is repealed by Schedule 2 of the Bill.

Section 31A implements the Commission's recommendations on declarations and injunctions.

Subsection (1) re-enacts section 31(l)(b) of the Supreme Court Act 1981.

Subsection (2) sets out the conditions which must be satisfied before a declaration can be made or an injunction granted on an application for judicial review, and implements the Commission's recommendation at paragraph 6.17 of the report that interim relief should be available at any stage in proceedings, including prior to the preliminary consideration.

Subsection (3) makes clear that the limitations set out in subsection (2) do not apply to injunctions under section 30 of the Supreme Court Act 1981 restraining persons from acting in offices in which they are not entitled to act.

Subsection (4) confirms and puts on a statutory basis the power of the High Court to make interim and advisory declarations.

Subsection (5) restricts the grant of advisory declarations by requiring that the court shall not grant an advisory declaration unless it is satisfied that the application raises a point of general public .importance. Subsections (4) and (5) implement paragraphs 6.27 and 8.12 of the report.

Section 3IB implements the Commission's recommendations on standing, time limits, interim relief against the government, ministers and departments, and costs.

Subsection (1) provides that there should be standing to bring applications for judicial review where either the applicant has been or would be adversely affected, or the High Court considers that the application is in the public interest. Subsection (1) implements paragraph 5.22 of the report.



EXPLANATORY NOTES

Subsection (2) provides for any time limits to be determined by rules of court. At present these are partially dealt with in section 31 (6) of the Act. Subsection (2) implements the recommendation made at paragraph 5.26 of the report.

Subsection (3) provides that damages, restitution, or the recovery of money due may be awarded on an application for judicial review. Subsection (3) implements the Commission's recommendation in paragraphs 8.5 and 8.7 that restitution and money due should be capable of being awarded on applications for judicial review if they would have been awarded in an action, as damages are at present.

Subsection (4) provides that on an application for judicial review the court has a discretion to award costs out of central funds in such circumstances as it thinks fit, either where the relief sought was an advisory declaration or where the court allowed the application to proceed to a substantive hearing in the public interest. Subsection (4) implements the recommendation made at paragraph 10.6 of the report.

Subsection (5) is included to make clear that section 21 of the Crown Proceedings Act 1947 does not act to limit the relief available against the Crown in judicial review proceedings. Subsection (5) reflects the Commission's recommendation at paragraph 6.13 of the report that there should be statutory provision for interim relief against ministers in their official capacity and against government departments in judicial review proceedings.

Section 31C re-enacts the provisions contained in section 29(3) and section 29(4) of the Supreme Court Act 1981, relating to the supervisory jurisdiction of the High Court.

Clause 2 replaces section 28A of the Supreme Court Act 1981, which was inserted by paragraph 9 of Schedule 2 to the Statute Law (Repeals) Act 1993. It implements the Commission's recommendations in paragraph 12.10 of the report that the powers of the High Court with respect to cases stated from the Crown Court should be set out in statute. Clause 2 makes provision for the powers of the High Court on case stated from the Crown Court to be the same as the powers of the High Court on case stated from a magistrates' court, as set out in both the new and the existing section 28A.



EXPLANATORY NOTES

Clause 3 is included to make clear that the provisions contained in this Act are binding on the Crown.

Clause 4 gives effect to the consequential amendments and repeals set out in Schedules 1 and 2.

Clause 5 deals with the short title, commencement date, and extent of the Bill.











EXPLANATORY NOTES

Draft Order 53

Rule 1(1) implements the Commission's recommendation that damages, restitution, or the recovery of a sum due should be able to be claimed in addition to a claim for a mandatory, prohibiting or quashing order, or a declaration or injunction. (Paragraphs 8.5 -8.8)

Rule 1(2) applies to applications for judicial review the provisions about representative proceedings contained in R.S.C. Order 15, rule 12 (Paragraph 5.41)

Rule 2 implements the Commission's view that the rules about time limits for judicial review applications should be contained in rules of court, rather than in statute. Rule 2(1) implements the Commission's recommendations that the time limit should be three months. (Paragraph 5.26)

Rule 2(2) implements the Commission's recommendation about promptness within the three month period. (Paragraphs 5.26 & 5.27)

Rule 2(3) implements the Commission's recommendations about applications outside the three month period. (Paragraphs 5.26 & 5.28)

Rule 2(4) reproduces the provisions contained in the present Order 53, rule 4(2).

Rule 2(5) reproduces the provisions contained in the present Order 53, rule 4(3).

Rule 3 implements the Commission's recommendations about the procedure for making an application for judicial review. (Part TV)



EXPLANATORY NOTES

Rule 3(5) sets out the criteria for permitting an application to proceed to a substantive hearing. (Paragraph 5.13)

Rule 3(6) implements the Commission's recommendation that the preliminary consideration of an application for judicial review should be decided on paper, subject to the exceptions contained in rule 3(7). (Paragraph 5.11)

Rule 3(7) sets out the categories of applications where there may be a hearing to determine whether the application should be permitted to proceed to a substantive hearing. (Paragraph 5.11)

Rule 3(8) and 3(9) implement the Commission's recommendation that, where the application is not allowed to proceed to a substantive application, the Crown Office is to send a copy of the Judge's reasons for refusing the application to the applicant, and to the respondent if he has responded to a request for information or made submissions at a hearing under rule 3(7). (Paragraph 4.12)

Rule 3(10) reproduces the provisions contained in the present Order 53, rule 3(8).



EXPLANATORY NOTES

Rule 4 reproduces the provisions about the renewal of applications contained in the present Order 53, rule 3(4) to 3(8).

Rule 4(5) provides that before deciding whether or not to let a renewed application proceed the court must consider the matters set out in rule 3(5).

Rule 5 implements the Commission's recommendations about interim relief.

Rule 5(1) implements the Commission's recommendation that interim declarations and injunctions should be available prior to the determination of the preliminary consideration. (Paragraph 6.17)

Rule 5(2) (a) implements the Commission's recommendation that an interim declaration as well as an interim injunction should be available once an application for judicial review has been allowed to proceed. (Paragraph 6.27)

Rule 5(2) (b) reproduces the provisions of the present Order 53, rule 3(10)(a) about the staying of the proceedings to which the application relates, where the relief sought is a prohibiting or quashing order (formerly an order of prohibition or certiorari) and where the Court has determined that the application may proceed to a substantive hearing (formerly where leave was granted). (Paragraph 6.27)

Rule 6 reproduces most of the provisions about the mode of proceeding beyond preliminary consideration (presently the mode of applying for judicial review) contained in the present Order 53, rule 5. It sets out that the new method of proceeding is by notice of application.



EXPLANATORY NOTES

Rule 7 reproduces the provisions about statements and affidavits contained in the present Order 53, rule 6.

Rule 8 reproduces most of the provisions about claims for damages contained in the present Order 53, rule 7, and expands the application of these provisions to claims for restitution or the recovery of a sum due.

Rule 9 reproduces the provisions about interlocutory applications (presently "applications for discovery, interrogatories, cross-examinations etc") contained in the present Order 53, rule 8(1) and (2).



EXPLANATORY NOTES

Rule 10 reproduces the provisions about the hearing of applications for judicial review contained in the present Order 53, rule 9(1) to rule 9(3).

Rule 11 implements the Commission's recommendations about the transfer of proceedings into and out of the judicial review procedure.

Rule 11(1) reproduces the provisions about the transfer of proceedings out of Order 53 contained in the present Order 53, rule 9(5).

Rule 11(2) and rule 11(3) implement the Commission's recommendations about the transfer of proceedings into the judicial review procedure. (Paragraph 3.21)

Rule 11 (4) provides that where an order is made allowing a case to be transferred as if it were an application for judicial review and the case is proceeding in a district registry the judge may also order the action to be transferred to the Royal Courts of Justice. (Paragraph 3.23)

Rule 12 implements the Commission's recommendations about costs. (Paragraph 10.3)



EXPLANATORY NOTES

Rule 13 implements the Commission's recommendation that an application may be allowed to proceed on some of the grounds on which it is made and not on others. (Paragraph 5.15)

Rule 14 reproduces the provisions contained in the present Order 53, rule 10.

Rule 15 reproduces the provisions contained in the present Order 53, rule 11.

Rule 16 reproduces the provisions contained in the present Order 53, rule 12.

Rule 17(1) in part reflects the present Order 53, rule 13 and provides that no-appeal lies to the Court of Appeal from an order allowing or refusing to allow an application for judicial review to proceed.

Rule 17(2), however, spells out that applications in civil cases may be renewed before the Court of Appeal.

Rule 17(3) implements the Commission's recommendation that a time limit should be introduced for an application by a respondent to set aside a determination under rule 3 or 4 that an application for judicial review may proceed. (Paragraph 9.4)

Rule 17(4) implements the Commission's recommendation that no appeal should lie to the Court of Appeal from an order setting aside, or refusing to set aside, an order made under either rule 3 or 4. (Paragraph 9.5) If an order to set aside is granted then an applicant may renew his application to the Court of Appeal. (Paragraph 9.6)



EXPLANATORY NOTES

Rule 17(5) provides for the application of provisions of the Order in relation to an application for judicial review which is renewed to the Court of Appeal.

Rule 18 reproduces the provisions contained in the present Order 53, rule 14.