Advice to Wolverton Boxing Club on the evidences it might hold for disputing the lawfulness of the Healthy Lifestyle Sports Council’s determination and the likeliness of the success of any such challenge.
The preliminary advice offered to the Club should get down with saying that the most suited signifier of challenge to the determination made by the Council would be Judicial Review. “Judicial Review is the mechanism whereby the tribunals are able to size up the determination doing procedure of public governments and officials” ( 1 ) The evidences available come under three separate headers and they are: illegality, unreason and procedural improperness. It is possible to obtain a Judicial Review redress using one or more of these evidences and how these peculiar evidences can outdo help the Club shall be explored in deepness below. Before it is possible to determine the likely success of such challenges, it is imperative to guarantee that the Club will be given leave to use for Judicial Review. Once this has been done, the success or otherwise of the challenge will rest on the mode by which the determination was reached, as: “…Judicial Review is concerned with the legality of the determination made, non with the virtues of the peculiar decision” ( 2 )
Evidences for challenge
The most obvious case of illegality is where the determination shaper has made a determination he merely does non hold the power to make” ( 3 ) , nevertheless, it is apparently non the instance in this state of affairs, as the determination appears within the range of the statute law. Another land of challenge is the no grounds for a fact. However, the Club would undoubtedly be unsuccessful with this as there is plentifulness of grounds that pugilism is a “dangerous” activity and this was one of the facts used by the Council to account for their determination. Maltreatment of discretion could be a utile land of challenge, as the Council is under a responsibility to use the powers given to it, for the intents as set out in the Act and non for any different more personal grounds. The success of this land of challenge can be seen in Padfield v Minister for Agriculture [ 1968 ] 1 All ER 694, where the curate in inquiry used his powers for his ain grounds, instead than for the intents for which the powers were given to him. It is surely arguable in this instance that the Council, could be utilizing its powers, to foster the aims of its Chairperson, instead than for the echt publicity of: “sports that contribute to good health’ as espoused in the Act itself. In the of import instance of R v Secretary of State for the Enviornment ex parte Brent LBC [ 1983 ] 3 All ER 321 the tribunal judgement stated that “The Minister is entitled to hold in his head his policy. To this extent the mention to maintaining an unfastened head does non intend an empty head. His head must be kept ajar.”
This is possibly the land of challenge, which is most likely to win on the facts of this instance. There are several strands to this challenge, one of which is the presence of procedural prejudice. It has been stated that: “ordinary members of legislative bodies…ought non to demo personal prejudice, or take part in deliberations in regard of which they have a proprietary interest.” ( 4 ) In this state of affairs there are evidences to say the determination shapers in inquiry are slightly biased against the thought of pugilism, as a donee of the Council’s financess. These evidences are foremost, the fact that the Chairperson of the Council is married to a individual closely involved with runing against packaging and most perceptibly the inflammatory linguistic communication used by the Council, in their refusal of the Club’s application, mentioning to packaging as “immoral” .
Another land that could turn out successful, is reasoning that the Council fettered its discretion when it came to its determination. The seminal instance of R v Secretary of State for the Home Department ex parte Fire Brigades Union [ 1995 ] 1 AC 513 shows that: “the tribunals will non let a determination shaper to ‘bind’ or shackle its discretion by following a stiff or blazing policy, so that the result of a peculiar instance is decided in progress or without proper consideration” ( 5 )
This is the land of challenge that trades with stuff defects in the decision-making procedure itself and looks at the factors considered when the determination was being made. Lord Greene in Associated Provincial Picture Houses Ltd 5 Wednesbury Corporation [ 1948 ] described an illustration of a determination, which might fall into this land: “a determination on a component affair that is so unreasonable that no sensible authorization could hold come to it” One other possible land would be, if it could be proven that the Council acted randomly when coming to their determination. If this could be proved so this instance could follow in a similar mode to that of R v Secretary of State for the Home Department ex parte McCartney [ 1994 ] COD 528, when a determination by the Home Secretary was overturned, due to the fact that it was proven to be slightly irrational in substance and lacked the proper objectiveness required of people who hold public maps. A farther potentially successful challenge could be made, presuming it can be proved that the Club either did non burden the factors that resulted in the determination decently, or if the logical thinking in coming to the decision was flawed. The instance of R v Secretary of State for the Home Department ex parte Cox [ 1993 ] Admin LR17, demonstrates that the tribunals are prepared to repress determinations in state of affairss affecting suited weight non being given to of import and relevant standards. In the instance of the determination in manus, it would look that equal weight was non given to the legion wellness and fittingness benefits of packaging developing. Such benefits themselves, would be in line with the aim of subdivision 2 of the Act itself.
Likelihood of success of challenge
Before one can get down to measure the opportunities of the success of a Judicial Review of the determination of the Council, it is of import to guarantee that leave will be granted in the first topographic point for such a Review. There are certain standards that a claim needs to fulfill before the tribunals will get down a Reappraisal:
Are at that place other redresss available?
One really influential factor, which the tribunal will see when make up one’s minding whether or non to allow go forth to use for Judicial Review, is the presence of alternate redresss via other agencies. In this instance nevertheless, the Act bars any entreaties against the determinations of the Council.
Does the Club have Locus Standi?
The SCA declares that:
“No application for Judicial Review shall be made unless the leave of the High Court has been obtained in conformity with the regulations of the tribunal ; and the tribunal shall non allow leave to do such an application unless it considers the applier has sufficient involvement in the matter” ( 6 )
In this state of affairs, sing the Club’s direct engagement in the affair in inquiry, it is most likely that such “a direct personal involvement will ever represent a sufficient interest.“ ( 7 )Is the application within the statutory clip bounds?
The application for Review must be sought every bit rapidly as possible, as there is a opportunity that undue hold could be fatal to such an application. The SCA provinces:
“Where the High Court considers that there has been undue hold in doing an order for Judicial Review the Court may decline to allow –
- leave for doing the application ; or
- any alleviation sought in the application ( 8 )
“An applier may lose his claim to alleviation because his ain behavior has been unmeritorious or unreasonable…An applier may hold raised his expostulation excessively late” ( 9 ) Rule 54.5 ( 1 ) of the CPR sets the clip bound for applications for Judicial Review at three months, so if the clip bound has expired, the opportunities of successfully disputing the determination are much diminished and rest on the discretion of the tribunal ; normally merely applied in exceeding fortunes. It is even a possibility that an ‘ouster clause’ may be present in the Act, and for this ground before elaborate advice can be given, the Act would necessitate to be studied in great item. Assuming the diction is sufficiently clear, Judicial Review can be excluded all together via a clause of this type. It is evidently really of import to detect the content of the Act, as it will to some extent determine whether a challenge is available in the first topographic point.
Is the Council a populace organic structure?
“Judicial Review is merely available to prove the lawfulness of determinations made by public bodies” ( 10 ) In the seminal instance of Datafin, Lord Justice Lloyd asserted “For the most portion the beginning of power will be decisive” ( 11 ) The Council was set up under an act of parliament, viz. the Sporting ( Healthy Exercise ) Act and “if a organic structure is set up under statute…then the beginning of power brings the organic structure within the range of Judicial Review.” ( 12 )
First, on the balance of chances, it is likely that the Club, depending upon length of clip since the determination was announced, and the contents of the Act itself, will be granted leave to obtain Judicial Review. The concluding behind this, is that the Council is a public organic structure and is hence capable to Judicial Review and the Club has the needed ‘locus standi’ to prosecute the claim and eventually harmonizing to the Act, there is no other signifier of entreaty against the Council’s determination. Trying to turn out one of the evidences of challenge will turn out more hard nevertheless. The land that is likely to be easiest to turn out in tribunal is procedural improperness, as it can be demonstrated reasonably confidently that the Council exhibited marks of prejudice, when coming to the determination to decline the petition from the Club. It is of import to gain nevertheless that: “the most active redresss of administrative law…are discretional and the tribunal may keep back them if it thinks fit. In other words, the tribunal may happen some act to be improper but nethertheless diminution to intervene” ( 13 ) The tribunal may make up one’s mind that while determination non to present the Club money under the fund was so faulty no existent unfairness was suffered by the Club during the process. There is ever a certain grade of uncertainness when covering with Judicial Review for this really ground and so the Club could ne’er be guaranteed to obtain the consequence they are looking for, viz. the reversal of the Council’s determination.
Wolverton Boxing Club – The Club
Healthy Lifestyle Sports Council – The Council
The Civil Procedure Rules 1998 – The CPR
The Supreme Court Act 1981 – The SCA
R 5 City Panel on Takeovers and Mergers ex parte Datafin Ltd ( 1987 ) – Datafin
The Sporting ( Healthy Exercise ) Act – The Act
1. Graduate Diploma in Law: Constitutional and Administrative Law 2007-8 – BPP Law Courses Ltd, 2007 – p218
2. Constitutional and Administrative Law ( 5th edition ) – Hilaire Barnett ( Australia, 2004 ) p707
3. Commercial Judicial Review – Philip Engelman ( London, 2001 ) p28
4. De Smith’s Judicial Review ( 6ThursdayEdition ) – Harry Woolf, Jeffrey Jowell and Andrew Le Sueur ( London, 2007 ) p530
5. Graduate Diploma in Law: Constitutional and Administrative Law 2007-8 – BPP Law Courses Ltd, 2007 – p248
6. SCA 1981 s31 ( 3 )
7. Commercial Judicial Review – Philip Engelman ( London, 2001 ) p23
8. SCA 81 s31 ( 6 )
9. Adminstrative Law ( Ninth edition ) – Sir William Wade ( Oxford University Press, 2004 ) p702
10. Constitutional and Administrative Law ( 5th edition ) – Hilaire Barnett ( Australia, 2004 ) p710
11. Constitutional and Administrative Law ( 5th edition ) – Hilaire Barnett ( Australia, 2004 ) p711
12. Constitutional and Administrative Law ( 5th edition ) – Hilaire Barnett ( Australia, 2004 ) p711
13. Adminstrative Law ( Ninth edition ) – Sir William Wade ( Oxford University Press, 2004 ) p700
The CPR 1998
The Civil Court Practice 2006 ( Vol 1 ) – published by Reed Elsevier ( UK ) Ltd, 2006
Public Law ( 3rdEdition ) – John F. McEldowney ( London, 2002 )
De Smith’s Judicial Review ( 6ThursdayEdition ) – Harry Woolf, Jeffrey Jowell and Andrew Le Sueur ( London, 2007 )
Adminstrative Law ( Ninth edition ) – Sir William Wade ( Oxford University Press, 2004 )
Constitutional and Administrative Law ( 5th edition ) – Hilaire Barnett ( Australia, 2004 )
Commercial Judicial Review – Philip Engelman ( London, 2001 )
Graduate Diploma in Law: Constitutional and Administrative Law 2007-8 – BPP Law Courses Ltd, 2007