No CrossRef data available.
Article contents
The Exhaustion of Alternative Remedies in Administrative Law
Published online by Cambridge University Press: 16 January 2009
Extract
The application for judicial review is the primary means of challenging the legality of action taken by public bodies. Judicial review is not, however, the only avenue by which an individual may challenge a particular decision. Statute may create an appellate machinery to hear appeals against decisions of public bodies. There is a wide variety in the pattern of such schemes. There may be an appeal from a decision to a tribunal or other body, with a further right of appeal on a point of law or by way of case stated to the High Court or the Court of Appeal. Such mechanisms exist in a number of fields, most importantly in the field of revenue law, enforcement notices in planning law, decisions of inferior courts such as magistrates& courts, and social security law. There may be an appeal from a decision to an administrative tribunal or inferior court but with no right of appeal to the High Court, as in certain immigration cases where decisions may be appealed to an adjudicator and from him to the Immigration Appeal Tribunal. There may be an appeal from decisions to an administrative body such as a Secretary of State either with provision for appeal to the courts, as with appeals against refusals of planning permission by local authorities, or without any further right of appeal, as in the case of appeals against disciplinary decisions of chief constables.
- Type
- Articles
- Information
- Copyright
- Copyright © Cambridge Law Journal and Contributors 1992
References
1 See, e.g., Taxes Management Act 1970, s. 56.
2 Town and Country Planning Act 1990, s. 289 (formerly Town and Country Planning Act 1971, s. 246).
3 Magistrates' Courts Act 1980, s. 111.
4 Social Security Act 1980, s. 14.
5 Immigration Act 1971, ss. 12–13 as amended by Immigration Act 1988, s. 5.
6 Town and Country Planning Act 1990, ss. 78 and 288 (formerly Town and Country Planning Act 1971, ss. 36 and 246).
7 Police (Discipline) Regulations 1985, S.I. 1985/518.
8 See particularly, R. v. Chief Constable of Merseyside, ex p. Calveley [1986] Q.B. 424; R. v. Secretary of State for the Home Department, ex p. Swati [1986] 1 W.L.R. 477; R. v. Birmingham City Council, ex p. Ferrero Ltd., The Times 30 May 1991; Hilditch v. Westminster City Council [1990] C.O.D. 434.
9 R. v. Secretary of State for the Home Department, ex p. Swati [1986] 1 W.L.R. 477.
10 R. v. Secretary of State for the Home Department, ex p. Doorga [1990] C.O.D. 108.
11 In R. v. Birmingham City Council, ex p. Ferrero Ltd., The Times, 30 May 1991, the Court of Appeal allowed an appeal from a successful judicial review application on the ground that the applicant should have used the statutory appeal procedure. See also R. v. Brentford General Commissioners, ex p. Chan [1986] S.T.C. 65 where Taylor J. expressed the view that the courts should resist the temptation to give judgment simply because the case was before them as that would undermine the policy underlying the exhaustion of remedies requirement.
12 Per Sir John Donaldson M.R. in R. v. Epping and Harlow General Commissioners, ex p. Goldstraw [1983] 3 AH E.R. 257, 262.
13 As happened in ex p. Goldstraw, note 12 above.
14 The time-limits for appeals are often shorter than the three-month time-limit for judicial review.
15 R. v. Panel on Take-overs and Mergers, ex p. Guinness p.l.c. [1990] 1 Q.B. 146,177.
16 The Panel on Take-overs is itself such a body and the Court of Appeal considered that the principle applied.
17 R. v. Panel on Take-overs and Mergers, ex p. Guinness p.l.c. [1990] 1 Q.B. 146, 177–178.
18 See R.S.C.Ord. 53, r. 8.
19 R. v. Deputy Chief Constable of Thames Valley Police, ex p. Cotton [1989] C.O.D. 318.
20 R. v. Civil Service Appeal Board, ex p. Bruce [1989] I.C.R. 171.
21 See Wade, , Administrative Law (6th. ed. 1988), pp. 712–716.Google Scholar
22 See Re Racal Communications [1981] A.C. 374; R. v. Greater Manchester Coroner, ex p. Tal [1985] Q.B. 67.
23 See cases discussed in note 33 below.
24 See, e.g., Director of Public Prosecutions v. Quinn [1989] C.O.D. 303 (appeal by way of case stated based on no evidence rule).
25 Pyx Granite Co. Ltd. v. Minister for Housing and Local Government [1960] A.C. 260.
26 Kingswood District Council v. Secretary of State for the Environment (1987) 57 P. & C.R. 153 (dealing with a statutory application to quash; the position should be the same in relation to the inherent common law power to quash in review applications).
27 The courts would have to be prepared to hold that the three month time-limit for bringing judicial review proceedings in Ord. 53, r. 4 in respect of the original decision begins to run from the end of the appeal procedure not the date of the original decision.
28 See dicta of Lord Bridge in Leech v. Deputy Governor of Parkhurst Prison [1988] A.C. 533, 567.
29 See note 19 above.
30 See the judgment of Woolf L.J. in the Court of Appeal in Leech v. Deputy Governor of Parkhurst Prison, unreported, 6 November 1986.
31 Per Sir John Donaldson M.R. in R. v. Chief Constable of Merseyside, ex p. Calveley [1986] Q.B. 424 at 433. See also Wade, op. cit. note 21 above, pp. 712–716.
32 R. v. Chief Adjudication Officer, ex p. Bland, The Times, 6 February 1985 and R. v. Commissioner for the Special Purposes of the Income Tax Acts, ex p. Napier [1988] 3 All E.R. 166 esp. at 171.
33 R. v. Secretary of State for the Home Department, ex p. Swati [1986] 1 W.L.R. 477, 485. See also R. v. Birmingham City Council, ex p. Ferrero Ltd., The Times, 30 May 1991.
34 R. v. Secretary of State for the Home Department, ex p. Swati [1986] 1 W.L.R. 477.
35 R. v. Brentford General Commissioners, ex p. Chan [1986] S.T.C. 65; R. v. Commissioner for the Special Purposes of the Income Tax Acts, ex p. Napier [1988] 3 All E.R. 166 and see Banin v. McKinlay [1985] 1 All E.R. 842.
36 See, for example, the dicta of Taylor L.J. in R. v. Civil Services Appeal Board, ex p. Bruce [1989] I.C.R. 171.
37 R. v. Inland Revenue Commissioners, ex p. Preston [1985] A.C. 835.
38 R. v. Inland Revenue Commissioners, ex p. M.F.K. Underwriting Agents Ltd. [1990] 1 W.L.R.1545.
39 See, e.g., R. v. Birmingham City Council, ex p. Ferrero Ltd., The Times 30 May 1991. See also R. v. Secretary of State for the Home Department, ex p. Hindjou [1989] 1mm.A.R. 24 (distinguishing ex p. Swathi[1986] 1 W.L.R. 477 on the grounds that misapplication of the criteria by the immigration officer was a reviewable error of law and differentiated the case from the normal run of cases where appeal was appropriate).
40 R. v. Secretary of State for the Home Department, ex p. Mahli [1990] 2 W.L.R. 932.
41 R. v. Hillingdon London Borough Council, ex p. Royco Homes Ltd. [1974] Q.B. 720.
42 [1988] A.C. 533.
43 The Home Secretary does now have power to quash: see Prison (Amendment) Rules 1989, S.I. 1989/330.
44 Bone v. Mental Health Review Tribunal [1985] 3 All E.R. 330.
45 Moss (Henry) of London Ltd. v. Customs and Excise Commissioners [1981] 2 All E.R. 86. See also Chief Adjudication Officer v. Foster [1991] 3 All E.R. 846. But see R. v. Secretary of State for Social Services, ex p. Clarke [1988] 1 C.M.L.R. 279 and Proll v. Entry Clearance Officer [1988] 2 C.M.L.R. 387.
46 Pharmaceutical Society of Great Britain v. Dickson [1970] A.C. 403; R. v. General Medical Council, ex p. Coleman [1990] 1 All E.R. 489.
47 R. v. Monmouth District Council, ex p. Jones (1987) 53 P. & C.R. 108. The Local Government Act 1974, s. 26(1), provides that the ombudsman should not investigate a complaint which may be dealt with by way of judicial review unless satisfied that it would not be reasonable to expect the person to resort to judicial review; see R. v. Commissioner for Local Administration, ex p. Croydon London Borough Council [1989] 1 All E.R. 1033.
48 R. v. Metropolitan Police Commissioner, ex p. Blackburn [1968] 2 Q.B. 118.
49 Appellate bodies have no inherent power of discovery and need express statutory authority: see R. v. Immigration Adjudicator, ex p. Secretary of State for the Home Department, The Times, 29 March 1989.
50 [1988] A.C. 533. See also R. v. Paddington Valuation Officer, ex p. Peachey Property Corporation [1968] 1 Q.B. 380.
51 R. v. Birmingham City Council, ex p. Ferrero Ltd., The Times 30 May 1991; Hilditch v. Westminster City Council [1990] C.O.D. 434.
52 R. v. Ipswich Crown Court, ex p. Baldwin [1981] 1 All E.R. 596. See also R. v. Battle Magistrates' Court, ex p. Shepherd (1983) 5 Cr.App.R.(S.) 124 and R. v. Secretary of State for the Home Department, ex p. Botta [1987] 2 C.M.L.R. 189.
53 As suggested in Leech v. Deputy Governor of Parkhurst Prison [1988] A.C. 533.
54 See especially per Lord Widgery C.J. in R. v. Hillingdon London Borough, ex p. Royco Homes Ltd. [1974] 2 Q.B. 720 at 729.
55 See particularly the dicta of May L.J. in R. v. Chief Constable of Merseyside, ex p. Calveley [1986] O.B. 424, 436 and see Hilditch v. Westminster City Council [1990] C.O.D. 434. But see dicta of Woolf L.J. in R. v. Panel on Take-overs and Mergers, ex p. Guinness p.l.c. [1990] 1 Q.B. 146, 201 (where he referred to Royco Homes Ltd. as authority for making exceptions to the exhaustion of remedies principle but without addressing specifically the issue of delay in appellate procedures). Judicial review may be less speedy than an appeal; see R. v. Birmingham City Council, ex p. Ferrero Ltd., The Times 30 May 1991.
56 R. v. Commissioners for the Special Purposes of the Income Tax Acts, ex p. Stipplechoice [1985] 2 All E.R. 465.
57 R. v. Commissioners for the Special Purposes of the Income Tax Acts, ex p. Kissane [1986] 2 All E.R. 37.
58 As usually happens in ordinary appeals against tax assessments; see R. v. Epping and Harlow General Commissioners, ex p. Goldstraw [1983] 3 All E.R. 257.
59 R. v. Huntingdon District Council, ex p. Cowan [1984] 1 All E.R. 58.
60 R. v. Chief Adjudication Officer, ex p. Bland, The Times 6 February 1985.
61 See, e.g., R. v. Secretary of State for the Home Department, ex p. Swati [1986] 1 W.L.R. 477 where the Court of Appeal applied the principle to an appeals procedure which did not provide for a further appeal to the court.
62 Thome v. General Commissioners of Income Tax for Sevenoaks; R. v. General Commissioners of Income Tax, ex p. Thome, The Times 12 May 1989 (appeal against assessment and judicial review application against certificate of interest were heard together).
63 R. v. Monmouth District Council, ex p. Jones (1987) 53 P. & C.R. 108.
64 Co-operative Retail Services Ltd. v. Secretary of State for the Environment [1980] 1 W.L.R. 271.
65 Streames v. Copping [1985] Q.B. 920.
66 Loade v. Director of Public Prosecutions [1990] 1 Q.B. 1052.
67 R. v. Commissioners for the Special Purposes of the Income TaxActs, ex p. Stipplechoice [1985] 2 All E.R. 465.
68 See, e.g., R. v. Secretary of State for the Environment, ex p. Kensington and Chelsea Royal Borough Council, The Times 30 January 1987; R. v. Chief Constable of Merseyside, ex p. Merrill [1990]C.O.D. 61.
69 Nolan v. Leeds City Council, The Times 5 November 1990; R. v. Oxford Crown Court, ex p. Smith [1990] C.O.D. 211. But see Chief Adjudication Officer v. Foster, The Times 28 February 1991.
70 R. v. Secretary of Stale for the Home Department, ex p. Mahli [1990] 2 W.L.R. 932.
71 See R. v. Secretary of State for the Home Department, ex p. Swati [1986] 1 W.L.R . 477.
72 R. v. Chief Immigration Officer, ex p. Kharazzi [1980] 1 W.L.R. 1396.
73 R. v. Chief Constable of Merseyside, ex p. Calveley [1986] Q.B. 424.