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You are here: BAILII >> Databases >> The Law Commission >> Judicial Review And Statutory Appeals (Report) [1994] EWLC 226(12) (09 September 1994) URL: http://www.bailii.org/ew/other/EWLC/1994/226(12).html Cite as: [1994] EWLC 226(12)

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PART XII STATUTORY APPEALS

Introduction

12.1      In Part B of our consultation paper^[1] we asked whether there was any scope for rationalising the different statutory provisions which may create a right of access to the High Court by way of an appeal or application from an inferior court, tribunal or other body. The great diversity of such appeals and applications was one of the main themes of this part of the consultation paper, and was one factor which made it difficult to treat statutory appeals as a single coherent subject for which to propose general reforms. Questions about ways in which reform might proceed were couched in fairly general terms.

Crown Office Rules

12.2      At present the scope of the Crown Office's work is governed principally by Order 57,^[2] although Orders 53,54, 55, 56 and 94 also contain procedural provisions. One reform which we consider would assist all applications for judicial review, habeas corpus, and statutory appeals (as well as the various miscellaneous procedures which constitute residual forms of Crown Office Proceedings^[3]) is the consolidation of all such public law procedures into one set of Crown Office Rules. We do, however, recommend that this is done in order to co-ordinate with Lord Woolf's review of civil rules and procedures, and we do not propose that these Rules are drafted until the results of that review are known.

Statutory Appeals

12.3      The main focus of Part B of the consultation paper was the potential for rationalising the great array of statutory provisions which give access to the High Court on appeal.^[4] These cover an enormous range of situations, from banking, to midwives, to planning. The procedures by which statutory appeals are determined, and the breadth of the grounds on which an appeal may be brought, also vary greatly.^[5] Appeals by way of rehearing give the High Court power to reconsider the disputed decision on its merits. Appeals on a point of law provide a forum for correcting errors of law and for keeping inferior courts and tribunals in touch with the general principles of law, legality and natural justice. Case stated provides a somewhat different procedure for appealing against decisions, particularly from decisions of the magistrates' courts or Crown Court.^[6] In addition there are a large number of other, miscellaneous, provisions for appeals, such as appeals on questions of fact or law.^[7]

Simplification to two procedures

12.4      In our consultation paper^[8] we invited comments on the suggestion that all existing forms of statutory appeal could be simplified to two types of procedure. These were, firstly, powers of appeal or reference, whether by the tribunal or by a party, to the High Court on a point of law (including points relating to jurisdiction, legality and procedural propriety) and, secondly, appeals not limited to a point of law.
12.5      There was little support for having an appeal or reference to the High Court on a point of law where this was effectively already the case, and having a residual category of appeals "not limited to a point of law". Those who responded considered that these categories were too general to be applicable to the wide range of specific instances where statutory appeals now exist. In addition, the Crown Office has not told us that any one form of appeal is more difficult or expensive to administer than another. At this stage, therefore, we do not propose that statutory appeals should be simplified into the two types of procedure as suggested in our consultation paper. It may be, of course, that Lord Woolf's review of civil procedure will want to revisit this territory.

Case stated

12.6      Appeal by way of case stated is a useful procedure in cases in which the factual background is complicated, or where the decision-maker is not required to give reasons. It requires the inferior body to set out for the benefit of the High Court the facts it has found and the points of law to which they give rise. It may also be an effective form of appeal where parties are not represented at the original hearing.^[9] Appeals by way of case stated are most common in relation to appeals from magistrates' courts and Crown Courts, and from some long established tribunals.^[10] In effect it achieves early concentration on the issue under appeal at the cost of additional effort in the process of the formulation of the case.
12.7      Case stated procedures were not abolished by the Tribunals and Inquiries Act 1958,^[11] although the Franks Committee recommended their replacement with appeals on a point of law as "... the simplest, cheapest and most expeditious method ..." of appeal.^[12] Few consultees expressed any very strong opinions on the question of whether the case stated procedure should be retained, retained in part,^[13] or completely abolished.^[14] While on the one hand it might make the law simpler if case stated could be completely removed, on the other hand removal might substantially deprive appellants (especially those acting in person) of their rights of appeal. One other disadvantage created by abolition might be an increase in the cost of hearings at magistrates' courts and tribunals, if a reasoned, written judgment was required to be given in every instance. Against this, the increasing trend to encourage courts (and tribunals) to give reasons may mean that there is in fact no significant extra expense. It might be that an appellant who can now ask a court or tribunal to state a case for the High Court would not be substantially disadvantaged by having to enter an appeal on a point of law, but this would necessitate substantial changes in practice in cases where reasons are not now commonly given.^[15]

The High Court's powers on appeals by way of case stated

12.8      Section 28 of the Supreme Court Act 1981 provides that:

"(1) Subject to subsection (2),^[16] any order, judgment or other decision of the Crown Court may be questioned by any party to the proceedings, on the ground that it is wrong in law or is in excess of jurisdiction, by applying to the Crown Court to have a case stated by that court for the opinion of the High Court."

12.9      Section 28A of the 1981 Act deals with proceedings on case stated by a magistrates' court.^[17] However, neither section 28 nor the new section 28A of the Supreme Court Act 1981^[18] provides the High Court with any specific powers of disposal over cases stated from the Crown Court.^[19] Before abolition of the courts of quarter sessions in 1971 the High Court had power to draw any inference of fact or make any judgment or order which might have been drawn or made and also the power to remit the case back to the quarter session for a re-hearing.^[20] In abolishing the courts of quarter session and replacing them with new Crown Courts the section containing these powers was repealed without being replaced by an equivalent provision.^[21] We understand this lacuna to have developed accidentally.^[22] We accordingly recommend amendment of the Supreme Court 1981 so as to confirm statutorily the powers of the High Court on case stated appeals from the Crown Court.
12.10      In summary, we agree with the conclusion of the Franks report that appeal on a point of law is a more efficient procedure than case stated. We consider that, as happened in relation to the Children Act 1989, existing procedures for appeals to the High Court by way of case stated should be replaced in due course by provisions for appeal on a point of law.^[23] Although at this stage we do not advocate abolition, we do recommend that no new case stated provisions are created in the future. Further, as stated above, we propose that the lacuna which has been left in the statute book following recent statutory changes should be filled so as to identify clearly the powers open to the High Court when it has heard an appeal by way of case stated from the Crown Court (Draft Bill, clause 2).

Statutory review

12.11      Statute may specifically provide for a particular order or decision of a public body to be challenged by way of an application to the High Court to quash the decision in question. Such statutory provisions usually provide for an application to be made where the order or decision is not one within the power of the Act,^[24] or where the applicant has suffered substantial prejudice as a result of a failure to comply with any relevant requirement. This is generally known as "statutory review".^[25]

Judicial Review or Statutory Review?

12.12      Statutory review is much closer to judicial review than to other forms of statutory appeal. Statutory review provisions are generally enacted where greater certainty and immunity from delayed challenge are needed in administrative decision-making. The only remedy which may be granted is a quashing order, and there are strict time limits within which the application must be made. There are no express provisions for discovery or cross-examination. Nor is it possible to join a claim for damages. The exclusivity created by the ouster clauses which always form part of statutory review provisions, barring judicial review applications in situations where a specific right of review is created by statute, has been reaffirmed recently in R v Cornwall County Council, ex parte Huntington.^[26] This has important consequences for applicants for judicial review. If they mistakenly apply for judicial review, the strict time limit for statutory review may well mean that they are denied any remedy at all. And the position is further complicated by the fact that there are several instances where, despite the existence of a statutory review provision which would seem to oust Order 53 proceedings, judicial review is still available.^[27]
12.13      While statutory review and judicial review are conceptually distinct procedures, so that one is appropriate to quash a specific decision, while the other is appropriate to challenge the reasons underpinning the decision,^[28] or where a decision-maker declines to exercise jurisdiction in relation to a matter which would otherwise be justiciable solely under a statutory review clause,^[29] the correct route of challenge may be less clear in practice. Applications for judicial review may also sometimes be made where the challenge is to a decision which would ordinarily lead to a further decision to which a statutory review clause would apply but where the applicant is for some reason not obliged to pursue a route leading to statutory review.^[30] In such circumstances there is an overlap between the two remedies. The courts, for example, may allow judicial review challenges if they feel that the delay which may occur before a minister determines an application will irredeemably prejudice the applicant.^[31] The provision for a statutory review challenge may be seen here as insufficient to provide applicants with an effective remedy, and the courts may be allowing judicial review to be used as a more effective substitute. While not proposing any substantive reform of existing statutory review provisions, the Commission proposes that future statutory review provisions are drafted so as to indicate clearly the extent of the exclusivity thereby conferred.

Systematisation of applications to quash

12.14      Most of those who responded to our consultation paper favoured the creation of one co-ordinated provision covering all applications to quash. At present the procedural steps, the scope of the review, and the powers of the court on application depend in part upon the precise wording of the particular statute. We do not propose at this stage that these existing statutory provisions should be altered. We do recommend, however, a model application to quash, for use in future. This model, with explanatory notes, is appended at Appendix E.

The High Court's appellate jurisdiction

12.15      The consultation paper also sought comment on specific procedural questions. In relation to the High Court's appellate jurisdiction we asked whether it was possible to state the criteria for determining whether more than one judge should sit on a particular type of appeal. Also whether the constitution of the court was a matter which should be left to judicial administration or whether it needed to be clarified in primary legislation. Comment was sought too, on the question of whether interlocutory appellate matters could be dealt with by a Master (or District Judge of the Family Division where appropriate) and whether the provisions in all the divisions of the High Court for dealing with interlocutory matters were sufficiently clear and consistent.
12.16      Most of those who responded considered that the number of judges in a case should normally be one, with two or three sitting for issues of general importance and complexity. The nominated judges said in their response that this is what already happens in practice. Many of those who responded wanted the process of determining the constitution of the court in each case to be clarified by primary legislation, but consultees were divided on the question whether the decision in any particular case should be left to judicial discretion. We consider that the judge in charge of the Crown Office List is in the best position to weigh up the relevant factors, such as the availability of judicial manpower and the relative importance of the case, which should determine the constitution of the court, and that it would not be conducive to the efficient administration of justice for his or her discretion to be fettered. The present system is widely accepted to work well in practice. No recommendations for reform are therefore proposed.

Standing

12.7      At present many statutes refer to a category of "persons aggrieved" as having the right to appeal, whilst others identify the category of potential appellants more precisely.^[32] Some provisions give the decision-making body involved a special right, in addition to the rights given to any other category of potential appellants, to refer a point of law to the High Court.^[33] Reference may also be made in statutes to third parties who may have standing to intervene in an appeal, although they do not have the right to initiate the appeal themselves.^[34] This formulation reflects the old approach to cases of certiorari.^[35] In effect it carries it over into statutory procedures which are sometimes referred to as "statutory certiorari".
12.18      Many commentators have expressed the opinion that the expressions "sufficient interest"^[36] and "persons aggrieved" are now treated by the courts as meaning the same thing.^[37] There was support from consultees for the use of a single term and the replacement of the phrase "person aggrieved". It was argued that this would make the position clearer and more widely understood. This change in vocabulary was not intended to be a change in substantive law. Where there was a more restrictive formulation of the standing requirement replacement was not argued for since if more restrictive provisions were replaced by a universal test, important policy decisions to restrict the range of potential litigants might be unduly exposed to vexatious litigation, contrary to the public interest. As, however, we have recommended that the replacement of the "sufficient interest" formulation by a two limbed test, i.e. the applicant has been or would be adversely affected by any matter to which the application relates, or the High Court considers that it is in the public interest for the applicant to make the application,^[38] the simple verbal substitution is no longer possible. It is clear that "person aggrieved" has a wider meaning than "person adversely affected" so that phrase could not be used. As a matter of logic the public interest limb of our proposed general standing requirement includes cases that are now included under the "sufficient interest" formulation. However, the public interest limb does not seem entirely appropriate in the context of specific statutory provisions and may reflect a liberalisation in standing since their enactment. We do not wish to widen the test of standing under these statutes and, in the circumstances, make no recommendations for reform.

Intervention

12.19      In a statutory appeal there is limited scope for participation by third parties.^[39] For example, there is no express requirement of service on directly affected third parties.^[40] This can be contrasted with an application for judicial review where there is not only an express requirement of service but "any person who desires to be heard in opposition to the motion or summons, and appears to the Court to be a proper person to be heard" shall be heard, "notwithstanding that he has not been served with notice of the motion or the summons".^[41] We consider that there is no justification for this procedural difference between judicial review and statutory appeals. Accordingly we recommend that Order 55 be amended so as to allow for intervention by a third party (which may include a minister or government department) providing that the court is satisfied that the third party is a proper person to be heard. ^[42]

Time limits and power to extend time

12.20      While the general, residual, provision for entering an appeal and serving notice of appeal is 28 days,^[43] some statutes prescribe different periods, for example six weeks.^[44] Most of those who responded to the consultation paper on the question of time limits favoured standardising the time period at six weeks. This would have the disadvantage that any specific policy reasons for having different time limits in different contexts would simply be ignored. We do not propose, therefore, that time limits should be standardised. We do suggest, however, that a list should be maintained in the proposed Crown Office Rules^[45] of those statutory appeals where [for good reasons] a different time limit applies, the rest being limited to 28 days in any provision of general effect.
12.21      There was a division of opinion on the question of when time should start to run. Order 55 rule 4(3) provides that in appeals from the decision of a court time runs from the date of the judgment; rule 4(4), on the other hand, states that in other appeals time runs from the date the decision or (where appropriate) the reasons for it are given to the appellant. It is unclear in this context whether time runs from the date the decision is posted, or from the date it is received by the appellant.^[46] There was no consensus in the responses as to when time should start to run. Some consultees wanted it to be from the date of posting, citing the ease with which this could be proved. Others considered that the appellant should have 28 days to lodge an appeal, and that time should only run from the date of receipt of the decision or reasons. We have noted that in the rules relating to service of documents, the trend has been to calculate time from the moment when a letter would be delivered in the ordinary course of the post.^[47] For this reason we consider that it would be sensible to follow this trend and accordingly we recommend a date of posting (plus a stated number of days) provision.^[48]
12.22      In our consultation paper we commented on the fact that there are differences in the extent to which the court has the power to extend the time for appealing in statutory appeals.^[49] In some statutory appeal provisions the time limit is set by statute, and there is no power in the court to extend the period.^[50] In other provisions the time is set by rules, and there is a general power to extend.^[51] We asked whether the differences were defensible, and whether the court should be able to extend time for statutory review applications, or whether there should be an absolute bar on extending time for all appeals. Most consultees considered that the courts should have some general discretionary power to extend time, although there was less agreement on its extent. It was, for example, suggested by some that the rules for the extension of time in judicial review cases should be adopted.^[52] The nominated judges of the Queen's Bench Division suggested that in areas such as compulsory purchase, planning, or housing, if there were no extension of time possible, the court should have a power to award damages where hardship results.^[53] This last suggestion, which we are inclined to favour, would, however, require a separate law reform exercise.^[54] We consider that whether or not time should be extendable is a policy question and must depend on the circumstances and conflicting interests in each type of case. The creation of a general power to extend time would not be able to take account of these interests, and would allow time to be extended where Parliament has decided that it should not be. We do not propose a harmonisation which would result in a general judicial discretion to extend time. We do recommend, however, that in future the availability or otherwise of an extension of time should be set out clearly in the proposed Crown Office Rules.^[55]

Interim suspension and stay of orders pending appeal

12.23      In the consultation paper^[56] we asked whether the present provisions as to stay or suspension could be harmonized.^[57] Consultees were largely in favour of a defeasible presumption that a disputed order should remain in force pending the substantive High Court hearing. It was said that this would protect administrative bodies from vexatious applications. We recommend that the types of appeal where Parliament has provided by statute that the entering of an appeal should act as a stay on the order or decision in question should be listed in the Crown Office Rules.

Other interlocutory provisions

12.24      We also asked whether all other possible interlocutory applications in statutory appeals^[58] could be clarified and rationalised. Consultees agreed that the present interlocutory provisions were not clear or consistent, and should be revised. There was less unanimity, however, about possible solutions. Detailed and time-consuming work would be required to produce a general and comprehensive provision on interlocutory matters for statutory appeals in all divisions of the High Court. There was also uncertainty about the extent to which interlocutory provisions could ever be completely standardised, given the wide variation of statutory appeal procedures which exist. We propose that interlocutory provisions should be made clear and accessible, in whatever way is most effective, so that appellants may be confident of the procedure in their particular case. This might be done by the inclusion of such provisions in the proposed Crown Office Rules.

The orders which can be made on appeal

12.25      Individual statutes usually make express provision as to the orders which the High Court may make on appeal. They thereby indicate the extent to which control over the decisions of an inferior court, tribunal or other body is subject to appeal or review by the High Court.^[59] Most of those who responded to Part B of the consultation paper^[60] were in favour of an appeals provision of general effect. This is another area where further detailed work would have to be done to see which statutes could not be completely assimilated, and what the forms, both of the general provision and the list or categories of exceptions, should be. We consider harmonisation desirable in principle, at least for statutory appeals, and recommend that in future such a provision should be formulated as part of the Crown Office Rules.^[61] In statutory review, on the other hand, the court only has a power to quash, or not to quash. We do not, therefore, propose such a provision for statutory review.

Should there be a leave requirement?

12.26      Questions concerning rights of access to the courts raise issues as to whether rights of appeal to the High Court (or to the Court of Appeal^[62]) should be as of right or subject to a leave requirement. Case stated provides a further variation in enabling the tribunal to refuse to state a case if it does not think that a point of law is in issue, and empowering the High Court, if it thinks fit, to require the tribunal to do so. In the consultation paper we invited views as to the principles which should govern the right of appeal.^[63]
12.27      The issue is whether or not there should be a general leave requirement for appeals to the High Court (or to the Court of Appeal). Many of those who responded were opposed to a general requirement of leave. This, it was said, was unnecessary. It would merely cause delay and the issues in the case would have to be considered twice by a High Court judge. Consultees did advocate a general leave requirement in cases concerned with land use^[64] and public works, since hopeless appeals in this area could impose enormous financial and environmental costs on third parties, not least among whom are taxpayers. We do not favour a general leave requirement and recommend there should be no alterations to the arrangements for statutory appeals to the High Court which do require leave.

Allocation of business

12.28      The Value Added Tax Tribunals and the Special Commissioners of Income Tax are now combined administratively to form the Combined Tax Tribunals although each retains its own separate jurisdiction. They share the same building and one third of the Chairmen of VAT Tribunals are also deputy Special Commissioners. At present appeals from the VAT Tribunals on a point of law lie to the Queen's Bench Division, or by a 'leapfrog' procedure, to the Court of Appeal.^[65] Appeals from the Special Commissioners are by way of case stated on a point of law^[66] to the Chancery Division.^[67]
12.29      The Council of Tribunals in its published response to our consultation paper^[68] argued that it was anomalous that VAT and income tax appeals should go to different Divisions of the High Court since the appeals are jointly administered and share some of the same personnel up to that point. The Council believes that VAT appeals, like Special Commissioner appeals, should go to the Chancery Division.^[69] Other issues concerning the tax tribunals are discussed in the Appendix on case load management.^[70] It is said that there is unacceptable delay in such cases and there are concerns about the expertise of the appellate body as compared, for instance, to the expertise in planning appeals.^[71] As a matter of principle cases should be heard with due expedition and in the appropriate forum. A Chancery Division judge is more likely to bring expertise in tax matters to VAT appeals, and would also provide additional manpower which would help to cut the delays. We do not at present consider, however, that VAT appeals should be transferred to the Chancery Division. We suggest that the best solution is that a Chancery Division judge should be assigned from time to time to sit as an additional judge in VAT cases in the Crown Office List as Family Division Judges are now regularly appointed as additional Queen's Bench judges to hear judicial review cases with a family law element. The effect of this change on the efficient dispatch of VAT appeals should be closely monitored, and if the situation does not improve, more radical changes, such as a transfer of the whole of this jurisdiction to the Chancery Division, may prove to be necessary.

Note 1   Consultation Paper No 126.    [Back]

Note 2   O 57 brings together the following general categories of proceedings within the ambit of the Crown Office: any proceedings before a Divisional Court of the QBD; any proceedings in the QBD before a single judge under O 52, r 2, Order 53, Order 54, Order 64, r 4 or Order 79; any proceedings before a single judge of the QBD, being proceedings which consist of or relate to an appeal to the High Court from any court, tribunal or person including an appeal by case stated and the reference of a question of law by way of case stated.    [Back]

Note 3   Eg miscellaneous provisions such as applications under the Coroners Act 1988, s 13 (see O 94, r 14); applications under the Supreme Court Act 1981, s 42 (see O 94, r 15) in respect of vexatious litigants; applications under the Administration of Justice Act 1960 (see O 109, r 1) applications under the Drug Trafficking Offences Act 1986 (restraint and charging orders) and Part VI of the Criminal Justice Act 1988 (restraint and charging orders) under O 115 and O 50, r 2 (charging orders).    [Back]

Note 4   A list of statutes containing a statutory right of appeal or review to the High Court was provided in our consultation paper at Annex 2.    [Back]

Note 5   These procedures may be specified in the Act which creates the right of appeal. Residual provisions for statutory appeals are mainly detailed in O 55, although O 56 contains the provisions for appeals by way of case stated.    [Back]

Note 6   See paras 12.6 - 12.10 below.    [Back]

Note 7   See Consultation Paper No 126, paras 18.26 - 18.36 for discussion of other miscellaneous appeal provisions.    [Back]

Note 8   Ibid, para 19.7.    [Back]

Note 9   See Connsultation Paper No 126, para 18.15.    [Back]

Note 10   In 1993, 199 appeals by way of case stated from the magistrates’ courts, 37 from the Crown Courts and 3 from other bodies were lodged at the Crown Office. Depending on the statute creating the right of appeal, the procedures which govern cases stated from ministers, tribunals and other administrative bodies may include provision for a case to be stated at an interlocutory stage if the body in question agrees: see Consultation Paper No 126, para 18.24.    [Back]

Note 11   Now consolidated as the Tribunals and Inquiries Act 1992.    [Back]

Note 12   Report of the Franks Committee on Administrative Tribunals and Enquiries (1957), Cmnd 218, para 113. See Consultation Paper No 126, para 18.13.    [Back]

Note 13   The Crown Prosecution Service (CPS) proposed extending the procedure of appeal by case stated in criminal court proceedings so that the advantages and remedies currently available to an applicant seeking judicial review from a magistrates’ court or Crown Court would be available on case stated. The CPS considered that judicial review was frequently used when the procedure for appeal by case stated would be an adequate and more appropriate remedy and argued that the opportunity to obtain any or all of the prerogative remedies under one procedure would help to clarify the position.    [Back]

Note 14   Of those who did respond, the Combined Tax Tribunals Centre favoured abolition while the Immigration Appeal Adjudicators’ response favoured retention of case stated.    [Back]

Note 15   See paras 2.29 - 2.31 above.    [Back]

Note 16   The exceptions in subsection (2) relate to judgments and orders relating to mal on indictment and certain decisions relating to licensing, betting and local government matters where the decision of the Crown Court is final.    [Back]

Note 17   As amended by the Statute Law (Repeals) Act 1993, s 1(2), Sch 2, Pt I. Prior to the 1993 Act the powers given to the High Court in dealing with cases stated from a magistrates’ court were those contained in the Summary Jurisdiction Act 1857 - ss 6 and 7 of that Act are now substantively retained in the Supreme Court Act while the rest of the 1857 Statute has been repealed.    [Back]

Note 18   As enacted by the Statute Law (Repeals) Act 1993.    [Back]

Note 19   For magistrates’ courts the statutory appeal provision is contained in the Magistrates’ Court Act 1980, s 11l(1). This provides that: “any person who was a party to any proceedings before a magistrates’ court or is aggrieved by the conviction, order, determination or other proceeding of the Court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices ... to state a case for the opinion of the High Court on the question of law or jurisdiction involved. .”    [Back]

Note 20   Under the old common law jurisdiction the Divisional Court has the power only to quash or confirm a decision and not to authorise a re-hearing after an appeal by case stated cf the statutory power (now repealed) under the Supreme Court of Judicature (Consolidation) Act, s 25.    [Back]

Note 21   See the Courts Act 1971, s 56(4), Sch 11, Pt IV which repealed the Supreme Court of Judicature (Consolidation) Act 1925, s 25.    [Back]

Note 22   The Royal Commission on Assizes and Quarter Sessions 1966-69 (Cmnd 4153) which recommended abolishing the jurisdiction of the Quarter Sessions states at para 232 that its recommendations for the separation of criminal and civil business were not intended to affect the jurisdiction of the Divisional Court in such matters as habeas corpus, prerogative orders and cases stated.    [Back]

Note 23   Ie the Children Act 1989, s 94(1) as amended by the Courts and Legal Services Act 1990, s 116, Sch 16, para 23.    [Back]

Note 24   Including any error of law rendering a decision ultra vires in judicial review terms.    [Back]

Note 25   O 94 sets out the specific procedure for applications to quash.    [Back]

Note 26    [1994] 1 All ER 694 (CA). This judgment reaffirms that an order for certiorari cannot be made under 0 53 where there is a statutory review clause. This was established in Smith v East Elloe Rural District Council [1956] AC 736, and R v Secretary of State for the Environment, ex p Ostler [1977] QB 122.    [Back]

Note 27   This may happen where the courts find it possible to confine the ambit of such provisions restrictively, on the presumption that Parliament does not intend to oust the jurisdiction of the courts. For further discussion see R Gordon, Crown Office Proceedings, para G1-022 - G1-026.    [Back]

Note 28   R v Camden LBC, ex p Comyn Ching & Co (London) Ltd (1984) 47 P & CR 417 (QBD). The statutory review ouster clause will oust judicial review, however, once the order to which it relates has been made, even if that order has not been confirmed. See R v Cornwall CC ex p Huntington [1992] 3 All ER 566 (DC).    [Back]

Note 29   Etheridge v Secretary of State for the Environment (1984) 48 P & CR 35.    [Back]

Note 30   This is most likely to be where there is an appeal to a minister, with a statutory review clause allowing a challenge of his or her decision. Delays before such decisions are taken may amount to several years. The applicant, if forced to wait until there is a decision which he can challenge under the statutory scheme specified, may be irredeemably prejudiced before he can even make such a challenge.    [Back]

Note 31   Eg see R v Hillingdon LBC, ex p Royco Homes Ltd [1974] QB 720.    [Back]

Note 32   See Annex 3 of Consultation Paper No 126 for examples of these different formulations.    [Back]

Note 33   Planning (Listed Buildings and Conservation Areas) Act 1990, s 65; Town and Country Planning Act 1990, s 288; Copyright, Designs and Patents Act 1988, s 251.    [Back]

Note 34   See Consultation Paper No 126, paras 19.26 - 19.27 on the issues concerning those directly affected by decisions, who may wish to intervene.    [Back]

Note 35   R v Thames Magistrates Court, ex p Greenbaum (1957) 55 LGR 129.    [Back]

Note 36   As used currently in judicial review proceedings, from the Supreme Court Act 1981, s 31(3), and O 53, r 3(7).    [Back]

Note 37   Cook v Southend-on-Sea BC [1990] 2 QB 1, 18. See also R Gordon, Crown Office Proceedings (1990), G1-013, P Cane, An Introduction to Administrative Law (2nd ed 1992) p 49, n 16; and C Emery and B Smythe, Judicial Review: Legal Limits of Official Power (1986), p 312, though the case referred to in the latter text (Arsenal Football Club Ltd v Ende [1979] AC 1) does not explicitly discuss any similarity between these two terms.    [Back]

Note 38   See Draft Bill, clause 31B(1).    [Back]

Note 39   See Consultation Paper No 126, para 19.26 - 19.27.    [Back]

Note 40   See O 53, r 5(3).    [Back]

Note 41   See existing O 53, r 9(1) and our slightly amended version in draft O 53 r 10(1).    [Back]

Note 42   At present where the matter is governed by O 55, and the appeal is against an order etc of a minister or government department, that minister or department is entitled to appear and be heard in the proceedings on the appeal: see O 55, r 8. However, this does not cover cases where the minister or department is closely concerned but is not the respondent to the action.    [Back]

Note 43    O 55, r 4(2).    [Back]

Note 44   Eg the Planning (Listed Buildings and Conservation Areas) Act 1990, s 63.    [Back]

Note 45   See para 12(2) above.    [Back]

Note 46   For a discussion of the conflicting authorities, see Gordon, Crown Office Proceedings (1990), E2-004.    [Back]

Note 47   Eg where service by post is authorised or required under CCR O 7, it is deemed to have been effected, unless the contrary is proved, at the time at which the letter would be delivered in the ‘ordinary course of post’. Subject to proof to the contrary it is taken that delivery in the ‘ordinary course of the post’ was effected: (a) in the case of first class mail, on the second working day after posting; (b) in the case of second class mail, on the fourth working day after posting. “Working days” are Monday to Friday excluding any Bank Holiday.    [Back]

Note 48   See also the changes in the County Court practice introduced by the Courts and Legal Services Act 1990 (promulgated following the recommendations in the Report of the Review Body on Civil Justice (Cmnd 394) published in 1988).    [Back]

Note 49   Consultation Paper No 126, para 19.15.    [Back]

Note 50   Eg the Taxes Management Act 1970, s 56(4). See Petch v Gurney (Inspector of Taxes), The Times 8 June 1994.    [Back]

Note 51   O 3 r 5 provides that the court may, on such terms as it thinks just, by order extend the period for bringing proceedings. It may make such an order even after the period for bringing the proceedings has expired (O 3, r 5(2)).    [Back]

Note 52   O 53, r 4(1) provides that an application for judicial review shall be made promptly and within three months from the date when the grounds when the application arose unless the Court considers that there is good reason for extending the period. The Supreme Court Act 1981, s 31 (6) provides that the court may refuse to grant leave or relief in a judicial review application if the granting of the remedy sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.    [Back]

Note 53   As was suggested in R v Secretary of State for the Environment, ex p Ostler [1977] QB 122.    [Back]

Note 54   See para 2.32 above in respect of ultra vires action by public authorities.    [Back]

Note 55   See para 12.2 above.    [Back]

Note 56   Consultation Paper No 126, para 19.16.    [Back]

Note 57   Some statutory review provisions allow for the order under challenge to be suspended while the challenge is pending. Others do not. 0 55 r 3(3), on the other hand, directs that for statutory appeals the decision subject to appeal may be stayed if the Court by which the appeal is to be heard or the body which made the decision so orders. 58 See Consultation Paper No 126, paras 19.4 and 19.17.    [Back]

Note 58   See Consultation Paper No 126, paras 19.4 and 19.17    [Back]

Note 59   See Consultation Paper No 126, para 16.6.2.    [Back]

Note 60   Including the Treasury Solicitor’s Working Group and the nominated judges of the Queen’s Bench Division.    [Back]

Note 61   See para 12.2 above.    [Back]

Note 62   Statutory appeals lie directly to the Court of Appeal from the decisions of a number of tribunals, including the Lands Tribunal, the Social Security Commissioners, the Transport Tribunal and the Immigration Appeal Tribunal (under the Asylum and Immigration Appeals Act 1993).    [Back]

Note 63   Consultation Paper No 126, para 19.19.    [Back]

Note 64   Enforcement appeals (see the Planning and Compensation Act 1991, s 6(5)) require leave. Detail was given in the Department of the Environment’s response. The procedure, it said, weeded out the 30% of applications later found wholly unmeritorious, and prevented those which were directed merely at the object of gaining more time for an unauthorised user of the land.    [Back]

Note 65   There are serious delays in VAT appeals being heard by the High Court. Information from the Combined Tax Tribunals Centre shows that the average time between the Tribunal decision and the High Court decision in 1993 as 24.92 months. One recent case (Customs & Excise Commrs v Kingfisher Plc [1994] STC 63) was heard by the High Court more than three years after the Tribunal decision.    [Back]

Note 66   But see now SI 1994/1811 Special Commissioners (Jurisdiction and Procedure) Regulations 1994, which came into effect on 1 September 1994 and replaces cases stated with decisions. However, the stated case procedure remains in operation for the General Commissioners.    [Back]

Note 67   According to the Council of Tribunals (Annual Report 1991/92) case stated is a more costly and complex procedure compared with the ordinary appeal route in such cases.    [Back]

Note 68   Annual Report 1993 para 1.66.    [Back]

Note 69   See also JT Avery-Jones, “Tax Appeals: The Case for Reform” [1994] British Tax Review P 3.    [Back]

Note 70   See Appendix C.    [Back]

Note 71   Ibid, para 3.3.    [Back]