Judicial Review

Judicial Review Questions.

1a. Parties refer to the litigants in a suit. The parties to any legal action in this scenario include; Henry and Age Action who can sue on their own behalf and on behalf of another as Plaintiffs on the one hand and NHS Trusts and Boldwood NHS Trust as defendants.

1b. Cause of action refers to factors, issues, facts, reasons and elements that if proven in a court of law would attract a legal remedy. Judicial Review is the process enabling the people to impugn in courts the decision of a public body which has the mandate to exercise some powers but instead it does so wrongly. One is thus entitled to apply for Judicial Review whenever a body entrusted to offer service to the people does so in total disregard to the law. The decision can be set aside and remedies issued. . .

1c. The final sentence in the first paragraph provides that any decision of a local health authority or NHS Trust shall be final. This statement does not affect the path for Judicial Review in the sense that even though one cannot lodge judicial review to impugn an act of parliament on the ground

The final sentence in the first paragraph provides that any decision of a local health authority or NHS Trust shall be final. This statement does not affect the path for Judicial Review in the sense that even though one cannot lodge judicial review to impugn an act of parliament on the ground of parliamentary sovereignty, one can still lodge Judicial Review to challenge the decisions made thereunder. In this case, Henry is elderly and as such, he is entitled to new treatment regime prescribed by the Health Services Act 2017. Therefore, any final decision by any Local Authority or NHS Trusts that will try to exclude him from such a treatment is subject to challenge since it is contrary to the substantive provision of the Act.

2a. Public body is generally a body or an organization that is concerned or mandated to provide services to the general public and is also funded publicly. Any body that provides any kind of services to the public in the United Kingdom and is not a ministerial department suffices to be a public body.

2b. The perfect defendant in this case is Boldwood NHS Trust that is a public body. The NHS itself is a non-executive body that is mandated to provide health services for free to the people of the United Kingdom. NHS Trusts are therefore those organizational units found within the larger NHS that carries out the actual act of disseminating health services to the people and for the record, they employ the majority of NHS employees. Boldwood NHS Trust is therefore one of the organizational structures of the larger NHS mandated to offer health services to the people and because NHS is itself a non-executive public body, its units also are public body.

2c. A public law matter is a matter that involves an individual or individuals and public law such as Constitutional law, Acts of Parliament and to some extent Tax law. In this case, the issue involves Henry an individual and the Health Services Act 2017 which is an Act of parliament. The claim thus fits within the realm of public law matter.

3a. Anybody whose public law rights are at stake or who is affected by the decision of a public body has the right to claim under the Judicial Review. This is the position that an individual person has a right to originate an action by way of JR if they are affected directed by such actions of a public body.

3b. Yes. Henry has a right to originate an action by way of Judicial Review since is affected directly by the decision of a public body, Boldwood NHS Trust and an Act of Parliament, The Health Services Act 2017. This is a public law right which is at stake and accordingly, Judicial Review is the only sure way to commence an action.

3c. One of the procedural requirements for commencing a judicial review journey is that a person applying for this action must show and have necessary interest in the subject application otherwise referred to as locus standi. An applicant must have a standing before a court of law.

One of the procedural requirements for commencing a judicial review journey is that a person applying for this action must show and have necessary interest in the subject application otherwise referred to as locus standi. An applicant must have a standing before a court of law. Age Action is an established charity for the elderly that protects their interest. Henry is an elderly and as such his protected by the charity. A decision affecting Henry affects the charity. As such, Age Action has a standing since it is also affected by the decision of the NHS Trust which in turn affects its members.

3d. Greenpeace (R v Inspectorate of Pollution, ex parte Greenpeace Ltd (No. 2) [1994]) introduced and embraced the idea of associational standing where a pressure group was allowed to originate a claim in judicial review on behalf of members of the local community who could be affected by sanctioning a new facility that reprocessed nuclear. On this basis, the court was of the opinion that the idea of standing could arise purely on the basis of public interest. The relevance of this case with the instant scenario is that Age Action can be considered as having an “associational” standing capable of bringing a claim in Judicial review on behalf of its elderly members like Henry.

4a. The various policy reasons that might result in the courts not being prepared to consider a JR claim include the proximity of the impugned decision to the claimant and whether the said decision affects them directly. If not, the court will fail to consider it. Also, whether there exists

The various policy reasons that might result in the courts not being prepared to consider a JR claim include the proximity of the impugned decision to the claimant and whether the said decision affects them directly. If not, the court will fail to consider it. Also, whether there exists other alternative remedy. The rule is that Judicial Review is a remedy of last resort. If there is an alternative remedy, the same should be exhausted failure of which courts will be reluctant to consider such a claim. Lastly, the strength of the grounds of impugnment. The success of a JR claim lies on the merits of the grounds. Courts can declare the claim totally without merit if the grounds are weak.

4b. The policy on proximity and strong grounds of challenge will be relevant to the Henry’s case for the reason that Henry is directly affected by the decision of the NHS Trust and also, being elderly within the meaning of the Act, he has strong grounds to challenge the subject decision.

5. Judicial Review application or claim involves two steps; the leave stage and the hearing stage. A claimant must first seek leave to lodge a JR from the High Court which has jurisdiction to supervise public bodies. The court, once satisfied that the claim meets the threshold of a JR, will grant leave and once leave is granted, the claimant will lodge the substantive claim which will be heard and orders given appropriately. In keeping with the rules of the pre-action protocol, a claimant is expected in the first instance before lodging the claim to write a letter to the intended defendant to, if possible, avoid the long process of litigating.

6a. The grounds for Judicial Review include; illegality which means acting beyond the required scope and or exercising discretion wrongly. Irrationality which is simple on the basis of reasonableness. That the decision so challenged is completely outrageous that no reasonable person directing his mind to the subject issue could have arrived at a similar decision. Lastly, procedural impropriety which means a decision is arrived at oblivious of standards of procedure. It is anchored on the rules of natural justice on biasness and the right to be heard.

6b. The ground of illegality is the most relevant here. This happens when a decision-maker fails to appreciate and consider lawful requirements by exercising discretion that fails to account or take into account relevant considerations. This results in misdirection in law. In Attorney General v Fulham Corporation the corporation, through its Council, were mandated to build wash houses for individuals who did not have one. Instead, they made a decision to charge individuals. The court that this was an illegality for being ultra vires. In this instant case, Boldwood NHS Trust went beyond their primary mandate of providing healthcare by denying Henry access.

7a. The remedies are; Prohibitory order which is an order preventing a public body under review from doing a particular thing. Mandatory order which is an order mandating or compelling the public body to do a given thing.

Quashing order which is an order setting aside a decision of a public body on the ground that it is unlawful.

Declaration which is a judgement of a court where the court will not issue an order but only clarifies the rights, roles and obligations of parties to a dispute.

Injunction which is a temporary remedy given in any nature like mandatory, prohibition or interim order pending a given matter. Injunction can be made permanent after determination of claims.

Damages which simply are awards issued as a result of a wrong caused but are not readily available in Judicial Review unless there is an issue surrounding private law or Human Rights Act 1998

7b. Of the above remedies, the remedy of a quashing order is the most relevant in this scenario so as to set aside the decision of Boldwood NHS Trust which is entirely contrary to the substantive provision of the act as regards treatment for the elderly.

8. The chance of success in this claim is high. The claim meets the parameters of a judicial review as discussed above. The proximity of the decision and the claimant(s) is so direct. The grounds of challenge are also merited. Henry is an elderly person who is intended to benefit from the provisions of the act and as such, a discretion which also final but negates the provision of the act should be declared invalid.

Dig deeper into Interdisciplinary Team Working, Leadership and Professional Development with our selection of articles.

Bibliography Books and Journals

• Fritzsche, A., 2010. Discretion, scope of judicial review and institutional balance in European Law. Common Market L. Rev., 47, p.361.
• Ip, E.C., 2014. The judicial review of legislation in the United Kingdom: a public choice analysis. European journal of law and economics, 37(2), pp.221-247. .
• Richardson, G. and Sunkin, M., 2018. Judicial review: questions of impact. In Administrative Law (pp. 219-243). Routledge. Robertson, D., 2010. The judge as political theorist: contemporary constitutional review. Princeton University Press.
• Spijkerboer, T., 2009. Subsidiarity and ‘arguability’: the European court of human rights’ case law on judicial review in asylum cases. International Journal of Refugee Law, 21(1), pp.48-74. Türk, A.H., 2010. Judicial review in EU law. Edward Elgar Publishing. Tushnet, M., 2009. Weak courts, strong rights: judicial review and social welfare rights in comparative constitutional law. Princeton University Press.
• Cunningham, J., Salomone, J. and Wielgus, N., 2015. Project management leadership style: A team member perspective. International Journal of Global Business, 8(2), p.27. .
• Ghaedi, A. and Rad, F.M., 2016. The effect of leadership strategically on effectiveness and comparative effectiveness faculty members of Islamic Azad University of Marvdasht. International Journal of Education and Management Studies, 6(4), p.411. Hughes, P.J. and Panzo, D., 2015. Developing an Organizational Leadership Graduate Program: A" CHAT" about leadership education. Journal of Leadership Education, 14(1). Jumaa, M.O. and Alleyne, J., 2017. Strategic leadership in health care in challenging times. Organisation Development in Health Care: Strategic Issues in Health Care Management.
• Greenpeace (R v Inspectorate of Pollution, ex parte Greenpeace Ltd (No. 2) [1994]) R v Secretary of State for the Home Department Ex parte Doody