Administrative - 1990

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This page lists 12 cases, and was prepared on 15 November 2008.

Regina -v- Knowsley Metropolitan Borough Council, ex parte Maguire (1992) 90 LGR 653
1990 Schiemann J	Damages, Administrative	Casemap 1 Citers
	Schiemann J said: 'we do not have in our law a general right to damages for maladministration.'

Rost -v- Edwards [1990] 2 QB 460; [1990] 2 All ER 641
1990	Administrative, Constitutional
	The plaintiff a Member of Parliament wished to lead evidence about the circumstances in which, having been nominated to serve on a Standing Committee, he was de-selected from the Committee, and in which he failed to secure appointment as the chairman of a Select Committee. He also wished to lead evidence as to questions which were asked in the House by Opposition Members about his conduct, and as to a letter which one of the Opposition Members sent to him and also to the Speaker, complaining about the plaintiff's conduct. The letter concerned the questions which the Member subsequently raised in the House. Held: All these matters were fell within the scope of "proceedings in Parliament". Where the exclusion of material on the grounds of Parliamentary privilege made it impossible fairly to determine the issue between the parties, the proceedings should be stopped.

Thrasyvoulou -v- Secretary of State for the Environment [1990] 2 AC 273
1990 HL Lord Bridge	Planning, Estoppel, Administrative	Casemap 1 Citers
	A building owner appealed against enforcement notices which alleged that there had been a material change of use of his buildings in 1982. This notice was issued by a planning authority. As a result of the appeal an inspector determined that the buildings were in hotel use. The use of the buildings did not change between 1982 and 1985. Nevertheless, in the latter year the planning authority issued further enforcement notices alleging that there had been a change of use from hotel to hostel. The Court of Appeal accepted a plea of action estoppel. Held: The House of Lords confirmed the decision. Lord Bridge: "In relation to adjudications subject to a comprehensive self-contained statutory code, the presumption, in my opinion, must be that where the statute has created a specific jurisdiction for the determination of any issue which establishes the existence of a legal right, the principle of res judicata applies to give finality to that determination unless an intention to exclude that principle can properly be inferred as a matter of construction of the relevant statutory provisions. And "The doctrine of res judicata rests on the twin principles which cannot be better expressed than in terms of the two Latin maxims "interest reipublicae ut sit finis litium" and "nemo debet bis vexari pro una et eadem causa". These principles are of such fundamental importance that they cannot be confined in their application to litigation in the private law field. They certainly have their place in the criminal law. In principle they must apply equally to adjudications in the field of public law. In relation to adjudications subject to a comprehensive self-contained statutory code, the presumption, in my opinion, must be that where the statute has created a specific jurisdiction for the determination of any issue which establishes the existence of a legal right, the principle of res judicata applies to give finality to that determination unless an intention to exclude that principle can properly be inferred as a matter of construction of the statutory provisions." and "the local planning authority were . . . estopped from asserting that there had been a material change of use between certain dates, which expressly contradicted the finding made by the first planning inspector, which was not merely incidental or ancillary to his decision but was an essential foundation for his conclusion that no breach of planning control was involved in the use being made of the structure which was the subject of the first notice."

Regina -v- Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon -v- Home Office [1990] 3 WLR 465
1990 CA Ralph Gibson, Fox, Parker LLJ	Administrative, Prisons	Casemap 1 Citers
	A prisoner challenged the decision that he should be segregated under rule 43. Held: Ralph Gibson LJ: "In this case Mr Sedley acknowledged that there could not be an unqualified obligation in all cases upon the governor to allow the right to be heard. There may be cases of urgency. We would add that there may be difficulty in disclosing the reasons, or part of them, if, for example, the intention to segregate is based upon information obtained as to threatened misconduct, such as violence against another prisoner. Giving detailed notice of the grounds might well indicate to the prisoner the source of the information and thereby create the risk of an immediate retaliation against the giver of the information. In this case the giving of notice to the applicant might have been regarded as giving rise to the risk of an immediate protest in breach of the rules by the applicant intended to cause others to join his protest. In another case a governor might reasonably claim that he could not sensibly disclose the reasons for his intended decision, or some part of those reasons, because of the need not to reveal either the source of the information or that certain facts are known to the prison department. Mr Sedley maintained that this was not such a case and, if the right to be heard could be allowed, the law should require that it be allowed. We do not accept this submission. In our view, having due regard to the interests of the prisoner and of society at large, including the due administration of the prisoners, fairness does not require that a prisoner be given the right to be heard before a decision affecting him is made under rule 43." and "Good administration will often allow and cause a governor to provide such an opportunity to a prisoner but that, in our view, is for decision by the governor having regard to any policy instructions by the Secretary of State. There could be no unqualified obligation applicable in all cases for the reasons stated above. The rule, if it existed, would have to be stated in terms providing for the necessary qualifications. The requirements of the law, in prison administration, based upon natural justice, should, in our view, be both clear and simple. Any such rule would open many rule 43 decisions to question on the ground that the reasons given were deficient."
	Statute References omitted

Air 2000 -v- Secretary of State for Transport (No 2) [1990] SLT 335
1990 OHCS Lord Clyde	Scotland, Administrative	Casemap 1 Cites 1 Citers
	Advice from the Civil Aviation Authority which by statute the Secretary of State was required to consider had been seen not by him but by an interdepartmental working party which advised him. Held: Citing Carltona for the uncontroversial proposition that "what is done by his responsible official is done by [the minister]". The court rejected as "too extreme" a submission that the mere physical delivery of the advice to the department was sufficient, but accepted that "if it is given to an official who has responsibility for the matter in question, that should suffice".

Regina -v- Secretary of State for the Environment, ex parte Rose Theatre Trust Co [1990] 2 WLR 186; [1990] 1 ALL ER 754; [1990] 1 QB 504
1990 QBD Schiemann J	Administrative	Casemap 1 Citers
	The remains of an ancient theatre had been discovered during the development of a site. The respondent declined to schedule the building as a monument, saying a balance had to be found between preservation and the need to ensure the prosperity of the city, the site was not itself under threat from the developers, and compensation would be payable for any ensuing delays. Held: The Secretary of State was exercising a discretion given to him under the Act. That discretion had not been shown to have been exercised improperly. Members of the public at large had insufficient locus standi to seek judicial review, and locus could not be obtained buy applying to have the building scheduled under the Act. "There is no doubt that, in the early part of this decade, the High Court was fairly liberal in its interpretation of who had "a sufficient interest" to be able to apply for judicial review." and "The applicant's argument on standing runs essentially like this. 1. When scheduled monument consent is sought anybody who wishes to make representations to the Secretary of State can do so and the Secretary of State must consider any such representation once made: see paragraph 3(3) of Schedule 1 to the Act of 1979. 2. Therefore Parliament recognised that everyone has an interest in the preservation of monuments considered by the Secretary of State to be of national importance and everyone has a legitimate expectation to be consulted on such a matter. 3. The Secretary of State considers the Rose Theatre to be a monument of national importance. 4. At the stage when he is considering whether or not to schedule a monument considered by him to be of national importance, the area of discretion left to the Secretary of State is a very small one and therefore it would be artificial to make a distinction so far as standing is concerned between the position at the scheduling stage and the position at the scheduled monument consent state. 5. Therefore, the court should recognise that everyone has a sufficient interest to challenge, by way of judicial review, the lawfulness of the Secretary of State's decision in deciding not to schedule. 6. Although as a matter of form the applicant is a company, as a matter of substance the company is merely the corporate expression of the wills and desires of persons of undoubted expertise and distinction in the fields of archaeology, the theatre, literature and other fields and includes local residents, the local Member of Parliament and so on. These are not mere busybodies. The very fact that the Secretary of State has answered with care the representations made by those whose will the applicant embodies gives them a sufficient interest for the purpose of this application. 8. There is no evidence of any rival organisation which claims to represent the public in relation to the Rose Theatre and thus if this application is struck down for lack of standing then the legality of the Secretary of State's decision is unlikely to be tested in the courts." "I can therefore consider the question of standing by considering whether an individual of acknowledged distinction in the field of archaeology, of which the company has several amongst its members, has sufficient standing to move for judicial review of a decision not to schedule... It seems to be that the decision not to schedule is one of those governmental decisions in respect of which the ordinary citizen does not have a sufficient interest to entitle him to obtain leave to move for judicial review" and "I do not consider that an interested member of the public who has written and received a reply in relation to a decision not to schedule a site as an ancient monument has sufficient interest in the decision to enable him to apply for judicial review. Finally, I ought to say that I recognise the force of Mr. Sullivan's submission that since an unlawful decision in relation to scheduling either has been made or may well be made in the future, my decision on standing may well leave an unlawful act by a minister unrebuked and indeed unrevealed since there will be those in the future who will not have the opportunity to ventilate - on this hypothesis - their well-founded complaints before the court. This submission is clearly right. The answer to it is that the law does not see it as the function of the courts to be there for every individual who is interested in having the legality of an administrative action litigated. Parliament could have given such a wide right of access to the court but it has not done so. The challenger must show that he "has a sufficient interest in the matter to which the application relates". The court will look at the matter to which the application relates - in this case the non-scheduling of a monument of national importance - and the statute under which the decision was taken (in this case the Act of 1979) and decide whether the statute gives that individual expressly or impliedly a greater right or expectation than any other citizen of this country to have that decision taken lawfully. We all expect our decision makers to act lawfully. We are not all given by Parliament the right to apply for judicial review."
	Statute References omitted

Regina -v- Chief Constable of Thames Valley ex parte Cotton [1990] IRLR 344
1990 Simon Brown J, Bingham LJ	Employment, Administrative	Casemap 1 Citers
	In order:- "to make good a natural justice challenge an applicant must establish where there is a real, as opposed to purely minimal possibility that the outcome would have been different" (Simon Brown J) Bingham LJ: "While cases may no doubt arise in which it can properly be held that denying the subject of a decision an adequate opportunity to put his case is not in all the circumstances unfair, I would expect these cases to be of great rarity. There are a number of reasons for this:- 1. Unless the subject of the decision has had the opportunity to put his case it may not be easy to knew what case he could or would have put if he had the chance. 2. As memorably pointed out by Megarry J in John v. Rees [1970] Ch 345 at page 402, experience shows that what is confidently expected is by no means always that which happens. 3. It is generally desirable that decision-makers should be reasonably receptive to argument, and it would therefore be unfortunate if a complainant's position became weaker as the decision-maker's mind became more closed. 4. In considering whether the complainant's representations would have made any difference to the outcome the court may unconsciously stray from its proper province of reviewing the propriety of the decision-making process into the forbidden territory of evaluating the substantial merits of a decision. 5. This is a field in which appearances are generally thought to matter. 6. Where the decision-maker is under a duty to act fairly the subject of the decision may properly be said to have a right to be heard, and rights are not to be lightly denied".

Regina -v- Inland Revenue Commissioners, ex parte MFK Underwriting Agents Ltd [1990] 1 WLR 1545; [1990] 1 All ER 91
1990 CA Bingham LJ	Natural Justice, Administrative	Casemap 1 Cites 1 Citers
	The claimant said that a change of practice by the Revenue was contrary to a legitimate expectation. Held: Fairness was a well-established ingredient of the notion of legitimate expectation. A claim to a legitimate expectation can be based only upon a promise which is "clear, unambiguous and devoid of relevant qualification." and "In so stating these requirements I do not, I hope, diminish or emasculate the valuable, developing doctrine of legitimate expectation. If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would often be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the expectation, particularly if he acted on it. If in private law a body would be in breach of contract in so acting or estopped from so acting a public authority should generally be in no better position. The doctrine of legitimate expectation is rooted in fairness." The court will only interfere in a decision if the respondents have exercised their discretion unreasonably and in considering that question, the respondents' judgment is not to be lightly cast aside.

Lex Services plc -v- Johns [1990] 1 EGLR 92
1990	Administrative	Casemap 1 Citers
	The section in the earlier Act was modified to give effect to the 1978 Act.
	Statute References omitted

Regina -v- Panel on Take-overs and Mergers ex parte Guinness Plc [1990] 1 QB 146
1990 CA Lord Donaldson MR, Lloyd LJ	Judicial Review, Administrative	Casemap 1 Citers
	The court asked about the standard of decision making at which a court could intervene: "Irrationality, at least in the sense of failing to take account of relevant factors or taking account of irrelevant factors, is a difficult concept in the context of a body which is itself charged with the duty of making a judgment on what is and what is not relevant, although clearly a theoretical scenario could be constructed in which the panel acted on the basis of considerations which on any view must have been irrelevant or ignored something which on any view must have been relevant." and Lloyd LJ: "Such questions are to be answered not by reference to Wednesbury unreasonableness, but 'in accordance with the principles of fair procedure which have been developed over the years and of which the courts are the author and sole judge'"

Regina -v- Deputy Governor of Parkhurst Prison, Ex parte Hague Guardian, 05 June 1990; [1990] 3 All ER 687
5 Jun 1990 CA Taylor LJ	Prisons, Administrative	Casemap 1 Cites 1 Citers
	A decision to segregate a prisoner under rule 43 is to be made by the governor of the prison where he is held. Taylor LJ: "Apart from the urgency of decisions under r 43, there may well be other public policy grounds for not giving reasons in advance to the prisoner so as to enable him to make representations. Giving reasons would often require unwise disclosure of information. Such disclosure could reveal to prisoners the extent of the governor's knowledge about their activities. It would reveal the source of such information, thereby putting informants at risk. It could cause an immediate escalation of trouble." A clear distinction could be drawn between the procedural requirements in disciplinary proceedings and the use of rule 43: "In disciplinary proceedings which may result in punitive action, the full panoply of natural justice principles is appropriate and Parliament has provided that it should apply. Although the consequences of rule 43 are in some respects akin to those imposed as punishment, the object of the rule is not punitive. Indeed, where it is invoked at the prisoner's request it is specifically aimed at protecting him from illegal punishment at the hands of fellow prisoners. So, in the context of rule 43, although the governor and the regional director must act fairly and make reasoned decisions, the principles of natural justice are not invoked in the rules. Instead, alternative safeguards are provided to protect the prisoner's rights."
	Statute References omitted

Regina -v- Secretary of State for the Home Department ex parte Oladehinde [1991] 1 AC 254; [1989] UKHL 3
18 Oct 1990 HL Lord Griffiths	Immigration, Administrative	Casemap 1 Cites 1 Citers
	A decision at Senior Executive Officer level was accepted as appropriate in a deportation case. There was an express form of delegation, and acts of the immigration officers required to be regarded as the acts of the Home Secretary. Lord Griffiths "... it would not be right to authorise an inspector to take a decision to deport in any case upon which he had been engaged as an immigration officer, for to do so would be too much like asking a prosecutor to be judge in the same cause".
	Link[s] omitted