Administrative - 1991

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This page lists 9 cases, and was prepared on 04 January 2012.

Regina -v- Secretary of State for Education and Science, ex parte Avon County Council [1991] 1 QB 558
1991 CA Glidewell LJ, Taylor LJ, Sir George Waller	Administrative, Judicial Review	Casemap 1 Citers
	The court was asked to order a stay on implementing a decision taken by the respondent. Held: A "stay of proceedings" in the context of applications for judicial review embraced not only judicial or quasi-judicial proceedings but also extended to decisions of the Secretary of State and the process by which such decisions had been reached, including the decision itself. A distinction was to be made between civil litigation, where an injunction might be ordered at the suit of one party against the other, and judicial review, where the decision-maker is not in any true sense an opposing party and where the order that the decision should not take effect until the challenge had been determined is correctly described as a stay. Glidewell LJ said: "A stay is an order that the judicial proceeding or administrative decision which is the subject of challenge should not continue or take effect until the judicial review challenge is determined. It is available as a remedy against all public bodies against whom leave has been granted, including the Crown in the form of a government department or minister." The language of the rule is wide enough to enable the court to impose a stay on "the process by which the decision challenged has been reached, including the decision itself". However, the availability of an expedited hearing of the application for judicial review made it unnecessary to order a stay: "We decided that the court has such jurisdiction. However, when it became clear to us that an early hearing of the substantive application could be arranged, we considered that a stay was unnecessary, and declined to grant a stay." Glidewell LJ said also: "Today, many applications for judicial review are for orders of certiorari to quash decisions of decision-making bodies other than courts, including government ministers, local authorities and other bodies whose decisions are susceptible to judicial review. Thus the phrase "a stay of the proceedings" in relation to such bodies must mean a "stay of the process by which the decision challenged has been reached, including the decision itself."
	Order 53 R3(10)(a)

Regina -v- General Council of the Bar ex p Percival [1991] 1 QB 212
1991	Administrative, Legal Professions	Casemap 1 Citers
	The Bar Council was amenable to judicial review for an alleged failure to comply with its own Professional Conduct Committee Rules (annexed to the Code of Conduct for the Bar of England and Wales) even though neither the Code of Conduct nor the Professional Conduct Committee Rules had any statutory underpinning.

Regina -v- Civil Service Appeal Board, Ex parte Cunningham [1991] 4 All ER 310; [1992] ICR 816
1991 CA Donaldson LJ	Employment, Administrative	Casemap 1 Cites
	The court considered the effect of a disciplinary board failing to give reasons. The absence of any right to appeal may be a factor in deciding that reasons should be given. If it is "important that there should be an effective means of detecting the kind of error [by way of judicial review] which would entitle the court to intervene” then the reasoning may have to be disclosed. Donaldson LJ said: “when a statute has conferred on any body the power to make decisions affecting individuals, the court will not only require the procedure prescribed by statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural standards as will ensure the attainment of fairness." The fact that leave to apply for judicial review has been granted calls for some reply from a pulic authority respondent. Once a public law court had concluded that there was an arguable case that a decision was unlawful, the court was entitled to be given the reasons for the decision. Lord Donaldson drew a further distinction between the legal duty on a public authority to provide an individual with reasons for a decision and the duty to provide a court with reasons for the authority's conduct. Breach of the former duty can lead to the quashing of the decision without more. Failure to observe the latter can lead to the court drawing inferences adverse to the public authority, but it will not necessarily do so.

Bumper Development Corporation -v- Commissioner of Police of the Metropolis [1991] 1 WLR 1362
1991	Administrative	Casemap 1 Citers
	An Indian temple having a legal persona recognised in India may assert rights and make claims under English Law.

Regina -v- Registrar General, ex parte Smith [1992] 2 QB 393; [1991] 2 All ER 88
1991 CA Sir Stephen Brown, Staughton LJ, McCowan LJ	Administrative	Casemap 1 Cites 1 Citers
	The applicant was detained in Broadmoor, having been convicted of murder in 1977 and of manslaughter in 1980. He suffered from serious mental instability and psychosis The second killing was of a fellow prisoner whom he believed to be his adoptive mother. From Broadmoor he applied to the Registrar General for access to his birth records. Held: Sir Stephen Brown (President): "It is clear that the facts . . are wholly exceptional. I do not believe that Parliament intended to provide an absolute right to the relevant information 'come what may'. It was sufficient to disentitle a prisoner from exercising his on its face absolute right to inspect his birth certificate that there was a current and justified apprehension of a significant risk that he might in the future use the information thereby obtained to commit a serious crime." Staughton LJ considered the rule of ex turpi causa non oritur actio: "The rule is that we must interpret Acts of Parliament as not requiring performance of duties, even when they are in terms absolute, if to do so would enable someone to benefit from his own serious crime." and 'a principle that statutory duties, although apparently absolute, will not be enforced if performance of them would enable a person to commit serious crime or to cause serious harm is fraught with difficulty ... Nevertheless, I am persuaded that some such principle exists.'. And For present purposes, it is sufficient to hold that a statutory duty is not to be enforced if there is a significant risk that to do so would facilitate crime resulting in danger to life. Parliament is presumed not to have intended that, unless it has said so in plain terms. That is as far as I would go in this case. Even so, I fear that other cases may require elucidation.' McCowan LJ: '... the correct formulation of the public policy in this context is that the adopted person will not be permitted to exercise his right ... if there is current and justified apprehension of a significant risk that he might in the future use the information obtained to commit a serious crime.' and 'What Parliament must be taken to have intended is that [the Registrar General] should obey public policy as found by the court to exist at the time the matter comes before it. It is not for the Registrar General to weigh up the public interest as against the interests and wishes of the applicant. It is for her only to discover the facts and for the court, as guardian of public policy, to decide whether the Registrar General is justified in withholding the information from the applicant.'"
	Adoption Act 1976 5191)

Regina -v- Inland Revenue Commissioners, Ex parte T C Coombs & Co [1991] 2 AC 283
1991 HL Lord Mackay of Clashfern LC, Lord Lowry, Lord Jauncey of Tullichettle	Administrative, Evidence	Casemap 1 Cites 1 Citers
	The effect of the presumption that subordinate legislation, or an administrative act, is lawful until it has been pronounced to be unlawful, is that the legislation or act which is impugned is presumed to be good until pronounced to be unlawful, but is then recognised as never having had any legal effect at all. The burden in such a case is on the defendant to establish on a balance of probabilities that the subordinate legislation or the administrative act is invalid. Lord Lowry discussed a party's silence: "In our legal system generally, the silence of one party in face of the other party's evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case. But, if the silent party's failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party, may be either reduced or nullified." As to the test to be satisfied by a party, he said: "The case for the validity of the second notice, or any section 20(3) notice, is supported by the presumption of regularity, which is strong in relation to the function of the commissioner under section 20(7). He is an independent person entrusted by Parliament with the duty of supervising the exercise of the intrusive power conferred by section 20(3) and "in the absence of any proof the contrary" credit ought to be given to public officers, who have acted prima facie within the limits of their authority, for having done so with honesty and discretion: Earl of Derby v Bury Improvement Commissioners (1869) LR 4 Exch 222, 226. The commissioner must be taken to be satisfied that the inspector was justified in proceeding under section 20 and hence that the inspector held, and reasonably held, the opinion required by section 20(3). The presumption that that opinion was reasonable and that the commissioner was right to be satisfied can be displaced only by evidence showing that at the time of giving the second notice the inspector could not reasonably have held that opinion. In order to decide whether the applicants succeed in this task, the court must consider all the evidence on both sides and all the available facts, one of which is that the commissioner, having heard an application, consented to the giving of the notice." Lord Mackay of Clashfern LC said: "The obligation on the commissioner to consider all the circumstances implies a duty on the officer of the Inland Revenue who appears before the commissioner to lay before the commissioner all the information he has about the relevant circumstances including any which might be unfavourable to the giving of the notice."

Re Cedac Ltd [1991] Ch 402
1991 CA Balcombe LJ, Leggatt LJ	Company, Administrative, Natural Justice	Casemap 1 Cites 1 Citers
	The Secretary of State's notice of intention to bring disqualification proceedings was served and the proceedings begun 10 days later just inside the 2 year limitation period specified by s 7(2) of the Act. Both parties believed the 10 day notice period had been complied with, and the director raised no objection at first. Following Jaymar, he objected to the short service. Held: The court asked four questions: (1) What is the scope and purpose of the Act of 1986? (2) What is the importance of the 10-day notice requirement in section 16(1)? (3) What is the relation of that requirement to the general object intended to be secured by the Act of 1986? (4) What are the relevant circumstances of the present case? The Act was intended to protect the public, and the requirement was important, but a breach did not create an automatic nullity. The court could make an order without such formal notice, provided the principles of natural justice were followed. (Legatt LJ) "The notice here fulfils no such function (i.e. to protect the director): its importance in the proceedings is minimal, and no one has been able to point to any real benefit that the director may derive from it." The third question is a balancing exercise with the protection afforded to the director by the provision of the notice period being set against the need to protect the public. As to the fourth, in these circunstances there was no prejudice to the director.
	Company Director Disqualification Act 1986 7(2) 16(1)

Regina -v- Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696; [1991] 2 WLR 588; [1991] UKHL 4; [1991] 1 All ER 720
7 Feb 1991 HL Lord Bridge of Harwich, Lord Lowry	Administrative, Media, Human Rights, Judicial Review	Casemap 1 Citers
	The Home Secretary had issued directives to the BBC and IBA prohibiting the broadcasting of speech by representatives of proscribed terrorist organisations. The applicant journalists challenged the legality of the directives on the ground that they were incompatible with the ECHR, and also on the ground that they were disproportionate in going beyond the established doctrine of reasonableness. Held: The Convention was not part of UK law, and the words of the Act were clear and prevailed, though in a case of ambiguity, the court may have regard to the treaty obligations of the United Kingdom in seeking to resolve that ambiguity. The restrictions imposed were necessary in the public interest in combating terrorism. The courts, when adjudicating upon an application for judicial review of a ministerial decision, may have regard to a ministerial statement made in Parliament. Wednesbury reasonableness and proportionality are different. For decisions infringing fundamental rights, unreasonableness is not equated with "absurdity" or "perversity", and a lower threshold of unreasonableness is used: "whether a reasonable Secretary of State, on the material before him, could conclude that the interference with freedom of expression was justifiable." When testing a decision of a lower court: "... A less emotive but, subject to one qualification, reliable test is to ask, 'Could a decision-maker acting reasonably have reached this decision?' The qualification is that the supervising court must bear in mind that it is not sitting on appeal, but satisfying itself as to whether the decision-maker has acted within the bounds of his discretion. For that reason it is "fallacious for those seeking to quash administrative acts and decisions to call in aid decisions of a Court of Appeal reversing a judge's finding, it may be on a question of what is reasonable. To say what is reasonable was the judge's task in the first place and the duty of the Court of Appeal, after giving due weight to the judge's opinion, is to say whether they agree with him. In judicial review, on the other hand, the task of the High Court is as described above, and the task of the Court of Appeal and, when necessary, this House is to decide whether the High Court has correctly exercised its supervisory jurisdiction."
	Broadcasting Act 1991 29 - European Convention on Human Rights
	Link[s] omitted

Regina -v- Secretary of State for Transport, ex parte Factortame C-221/89; [1991] EUECJ C-221/89; [1991] ECR I-3905
25 Jul 1991 ECJ	European, Agriculture, Administrative, Licensing	Casemap 1 Citers
	Europa Member States - Obligations - Exercise of residual powers in the field of the registration of vessels - Compliance with Community law. Free movement of persons - Freedom of establishment - Registration of a fishing vessel in a Member State - Conditions relating to the nationality, residence and domicile of the owners, charterers and operators of the vessel - Unlawful - Power of derogation of the national authorities - Absence of effect - System of fishing quotas - Absence of effect - Condition relating to the location of place from which the vessel is managed and its operations directed and controlled - Lawful (EEC Treaty, Art. 52)
	Link[s] omitted