Analysis of Administrative Law Cases - Assignment Example

Question a] Law Advice Centre [Address] 18th July 2008 Dear Patrick, We with regret the action of Bumbling Council (“BC”) in refusing the renewal of the registration of your business under the scheme provided for in the Domestic Improvements Registration Act 2002 (the “2002 Act”), particularly the lack of reasons therefor. BC’s discretion under the 2002 Act is subject to the rules of natural justice which ensure procedural fairness and an application for judicial review can be made on such grounds. The rule giving everyone the right to a fair hearing (audi alteram partem) is particularly relevant to your case. Ridge v Baldwin1 is a seminal case in this area which revived the application of the rules of natural justice by the Courts. Here, the House of Lords found that a constable cannot be lawfully dismissed without first notifying him of the alleged charges against him and holding a hearing thereafter. It can be argued that, following Ridge, BC should have informed you of your “charges”-i.e. why they are refusing to renew your registration, and given you an opportunity to respond to them. As Craig (2003) says, this right to notice is jealously protected by the Courts, but it has its limitations. While it can be argued, following the Lautro case2, that procedural rights of some sort are necessary considering that that your livelihood is at stake, it must be noted however that your case does not deal with exactly a “charge” or an offence of any kind. In the context of licenses (as opposed to “charges”) the Courts have been reluctant to compel the giving of notice of the basis of denial, refusal etc of the license. This is seen in cases such as McInnes v Onslow-Fane3 where the Courts held that the Boxing Board did not have to outline its objections against the application for a manager’s license. The Courts seemed to be only concerned with whether the Board had withheld approval capriciously. Licenses are similar to registrations and hence the McInnes decision is likely to apply to you. The rationale behind this decision is that although a right to notice is an important part of a fair hearing, there is no general duty to give reasons for an administrative decision in English law (as Lord Mustill said in Doody4). In the cases of licenses and registrations, these two principles conflict, and in the interests of the public and administrative efficiency, the latter prevails. However, encouragingly, recent cases have shown a more favourable attitude by the Courts in enforcing this duty to give reasons. In Cunningham5, for example, the Courts recognised that although no general duty exists, such a duty may be imposed in cases where fairness demanded it. Furthermore in Tsahl6 it was said that in cases where it was clear that the authority had to act rationally and consistently, it follows that there is a duty to provide some sort of explanation for its actions so as to enable applicants to judge whether the authority has acted capriciously. Therefore it can be argued that in your case, especially given the fact that the 2002 Act lists the factors that must be taken into account by the BC, the BC has a duty to act fairly and consistently and as such an explanation of the reasons for the refusal of the renewal of the registration must be given to you. The fact that the non-registration affects your livelihood will help in pleading that the non-giving of reasons is unfair. Furthermore, it may be possible to proceed on the basis of a denial of your legitimate expectations. If BC has acted in a certain manner to lead you to believe that, say, the registration would be renewed or certain procedural rights would be given prior to the decision of renewal, a duty to give reasons may be created. This is seen from cases such as Ng Yuen Shiu and the Liverpool Taxi case7. In addition, Article 6 of the European Convention of Human Rights (ECHR)8 gives you the right to a fair trial. While it does not expressly require the giving of reasons, the Article will be interpreted with recourse to ECtHR9 jurisprudence which regards this duty to give reasons as implicit in the obligation to provide a fair hearing. As held in Helle v Finland10, every single reason behind the decision need not be given, just sufficient to enable the understanding of the essence of the decision. Therefore, you are likely to be able to make a successful judicial review application on the grounds of procedural unfairness. Please feel free to contact us should you need further advice. Regards, [Name] Question b] [Name] Law Advice Centre [Address] 18th July 2008 Dear Joe, We note with regret the denial of your application for the registration of your business under the Domestic Improvements Registration Act 2002 (the “2002 Act”) by the Bumbling Council (“BC”). You may be able to question this decision by making an application for judicial review. The first ground on which you may do so is on the basis of natural justice, in particular the principle that every one has a right to a fair trial. Implicit in this right is that there has to be a trial in the first place where one will be able to defend oneself against the alleged “charges”. This was clearly seen in Ridge v Baldwin where a dismissal of a constable was held as unlawful as he had not been given notice of the charges against him nor had the time to give his superiors his side of the story. This is directly applicable in your case as here, while you have been given notice of your “charges”-i.e. that the application was denied on the basis that your business may not be financially sound etc., you have not been given an opportunity to dispute these allegations. However, the Courts balance this right of an individual to a fair hearing with the interests of the public when recognising procedural rights. The Courts may deny the right to a hearing and making representations on the basis of administrative impracticability as in Wiseman v Borneman11. BC cannot, perhaps, afford to hear and decide on disputed matters with all applicants. In addition, in cases such as this where approval for licenses and registrations (as opposed to charges/penalties) are involved, the Courts may be less ready to recognise procedural rights. In the case of applications in particular (as opposed to renewals or forfeitures of licenses etc.), less procedural rights were said to be required by Megarry V.C. in McInnes v Onslow-Fane. However, if as per Quark Fishing12, the registration is seen as a valuable commodity, the authority may be compelled to allow the applicant to make representations etc. Since the continuance of your business rests on this registration, as does your livelihood, the Courts may hold that such procedural rights are mandatory for your case. If so, you will be able to make a successful judicial review application. Article 6 of the ECHR which guarantees a right to a fair trial also supports such an application. A second ground on which you can proceed is more substantive. You may question BC’s decision on the grounds of irrationality or unreasonableness. As the judiciary is generally unwilling to interfere with executive power, they will only quash the decision if it is extremely unreasonable. As Lord Greene said in the celebrated Wednesbury13 case, the decision must be so unreasonable that no reasonable body could have reached such a decision. Like dismissing a teacher just because she had red hair14, the decision of the BC may be said to have taken irrelevant considerations into account. Doing so would be tantamount to acting unlawfully, ultra vires the powers conferred by the 2002 Act. The use of garden gnomes is a creative or artistic choice which is not connected to any of the factors listed in the 2002 Act which the BC must take into account. In having regard to the style and aesthetics of the landscaping, it can be argued that BC is acting unreasonably and therefore unlawfully. However it must be noted that this ground is some what of a last resort and is difficult to establish. Nevertheless, recently, the Courts have been influenced by the European concept of proportionality in deciding the matter. In cases such as Brind15 it is apparent that where there is a significant interest at play, the Courts will use a less stringent form of the unreasonableness test, something akin to a proportionality test. The inquiry would be whether the decision was one that a reasonable decision maker would make and the premise would be that only a compelling public interest would justify the invasion of a right. Here, the fact that your livelihood is at stake could result in the less stringent test to be applied. Perhaps even the traditional stricter test would be satisfied in your case. Basing a decision - even partly - on the wholly aesthetic use of garden gnomes does seem quite irrational. As such, you may be able to make a successful application on the substantive ground of unreasonableness. We hope this advice was helpful and urge you to contact us should you need further assistance. Regards, [Name] Question c] [Name] Law Advice Centre [Address] 18th July 2008 Dear Mick, The rejection of your application for the registration of your business under the Domestic Improvements Registration Act 2002 (the “2002 Act”) by the Bumbling Council (“BC”) is noted with regret. However, you may be able to obtain redress by making an application for judicial review of BC’s decision. The first ground that you may do so is on that of legitimate expectations. This may be either a procedural legitimate expectation where you feel that you should have been given certain procedural rights prior to rejection of the application, or more favourably, a substantive legitimate expectation that your application would be approved. Authority for the former can be found in cases such as MacDonagh16 where a local authority sought to evict gypsies from a site without offering them alternate suitable accommodation, contrary to a written undertaking that the local authority would do so. This gave rise to a legitimate expectation that in turn required the local authority to consult the gypsies before eviction. Similarly, here too you may be able to say that the remarks of TDS were such that you expected your application to be approved as they said they would recommend it and as such you should be at least told the reasons for the rejection and given a chance to make your own representations. Alternatively, you could plead for more than just procedural rights. You can say that your legitimate expectations were such that to contravene them, with or without procedural rights, was unlawful. This amounts to questioning the substance of BC’s decision, looking at whether it was substantively ultra vires. Such substantive legitimate expectations were only recently recognised in English law in Coughlan17. The Courts will recognise a substantive legitimate expectation where failure to do so would be so unfair that it would amount to an abuse of power. That is, the Courts will look to see whether there is some overriding public interest in question that justifies the frustration of the applicant’s legitimate expectation. In Coughlan, the legitimate expectation was a matter of human rights and had only financial consequences for the authority. While, here your livelihood is affected, it can be argued that TDS only said that they were recommending approval, not that approval would actually be given. Also, it was a one-off remark rather than an oft repeated-one. As such it is unlikely that you will be able to succeed on the ground of substantive legitimate expectations. Even so, you may have a course of action on the basis of natural justice, in particular on the grounds of bias (nemo iudex in causa sua). In your case, it seems that George may have been biased as a result of the court proceedings you have with his sister. As this does not involve George having any direct pecuniary interest (any pecuniary interest he may have is very remote, being through his sister and dependant on court proceedings), bias is not automatically presumed (Dimes18). As such, the Courts will apply a test of bias in deciding whether the rule of natural justice has been contravened. This is an objective test designed to uphold public confidence in the admistrative system. The recent formulation of the test can be found in Porter v Magill where it was said that the test was “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” 19 It is irrelevant whether George is actually biased or not. The fact that his very sister is aggressively defending court proceedings where a large sum of money is involved against the very company that is looking to get registration is likely to awaken a suspicion of bias in the general public. As such, the bias test is likely to be answered in the affirmative which means that your application for judicial review on the procedural impropriety ground of bias is likely to be successful. Please do not hesitate to contact us should you need further assistance. Regards, [Name] Reference List Books Craig, P.P., 2003. Administrative Law. 5th Edition. London: Sweet & Maxwell. Cases Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Attorney General for Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 Dimes v Grand Junction Canal Co Proprietors (1852) 3 HLC 759 Helle v Finland (1998) 26 EHRR 159 McInnes v Onslow-Fane [1978] 1 WLR 1520 Porter v Magill [2001] UKHL 67; [2002] 2 AC 357 R (on the app. of Quark Fishing Ltd) v Sect of State for Foreign & Commonwealth Office [2002] ACD 196 R v Brent London Borough Council, ex p MacDonagh [1990] COD 3; 21 HLR 494 R v Civil Service Appeal Board Ex p. Cunningham [1991] 4 All ER 310 R v Commissioners for Customs and Excise Ex p. Tsahl [1990] COD 230 R v Life Assurance & Unit Trust Regulatory Organisation Ltd, Ex p. Ross [1993] 1 QB 17 R v Liverpool Corporation Ex p. Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299 R v North and East Devon HA Ex p. Coughlan [2001] QB 213; [2000] 2 WLR 622 R v Secretary of State for the Home Department Ex p. Brind [1991] 1 AC 696 R v Secretary of State for the Home Department Ex p. Doody [1994] 1 AC 531 Ridge v Baldwin[1964] AC 40; [1963] 2 WLR 935 Short v Poole Corporation [1926] Ch 66 Wiseman v Borneman [1971] AC 297; [1969] 3 WLR 706 Read More