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JR - Can a judge disregard findings of unlawfulness?

Judicial review, activities of government, local and national etc.

Re: JR - Can a judge disregard findings of unlawfulness?

Postby Denning » Sat Dec 24, 2016 11:29 pm

dls wrote:
Are you saying the scenario I presented above that despite the finding of unlawfulness on the two occasions the judge should not send the decision back to the public authority

No. I am saying the opposite, that if you ask for a judicial review and it succeeds, then the usual outcome is that the decision is vacated, and is sent back to the authority to do it again. That a decision may have been made incorrectly twice makes little difference. That is what a request for a judicial review is. It is essential to a review that the responsibility for the decision stays where it is.

Succeed is not always equal to Quashing in Judicial Review according to S31 of the Senior Courts Act.

Let me rephrase my question this way: What will you say if the judge decides that looking at the rules of the public authority the individual only needs a breach on two occasions and not a breach on four occasions for the public authority to make the fatal decision and that it follows that despite her findings against the public authority of unlawfulness in the other two instances that the Judicial Review must be dismissed?
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Re: JR - Can a judge disregard findings of unlawfulness?

Postby atticus » Sun Dec 25, 2016 12:12 am

I will say that the judge's view is the one that counts.
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Re: JR - Can a judge disregard findings of unlawfulness?

Postby dls » Sun Dec 25, 2016 8:31 am

Thank you Denning,

Section 31 does not change my view at all.

I really am not sure what you think is so obvious that it needs no explanation.

What section 31 is saying is that certain contexts for applications for judicial review are not to be heard in the High Court but must instead be referred to the Upper Tribunal. That is before the review is looked at on the merits. It is in order to ensure that the High Court is not troubled by lesser matters for which others may have better and more direct experience. At teh time when a section 31 referral is made there is no 'fatality' issue.

You keep talking about a fatal decision. It is an unhappy phrase. Using the words exactly, they mean nothing. Is the word 'fatal' a character of the decision or of the result of that decision. You may know what is going on inside your head when you use the phrase, but I am afraid that others cannot see it - well I cannot.

It may be worth noting that section 31 identifies the fact that in different contexts of judicial review, the procedures apply differently. If you are talking of a partiular situation, then
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Re: JR - Can a judge disregard findings of unlawfulness?

Postby Denning » Mon Dec 26, 2016 5:28 am

When I stated "Succeed" in JR does not always equal to "Quashing" I meant the following provision highlighted on red fonts S31 of the Senior Courts Act 1981 :
(6)Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant—

(a) leave for the making of the application; or

(b) any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

Given that the outcome of Judicial Review should not be arbitrarily decided by any Judge of the Administrative Court, I was just seeking opinions here as to what should be the proper thing for the judge to do:

(1) whether for the judge (having found unlawfulness in two occasions as against the four occasions) to send the decision back to the public authority to be retaken (in which case the Individual would avoid the cost in the case and possibility of a mere warning at the highest as many others have two breaches), OR

(2) whether it is fair and just for the judge to dismiss the case by imputation of the public authority rules that required breaches of only two occasions contrary to the public authority decision was made on the basis that the Individual breached the rule on four occasions. If this option is taken the Individual would bear the total costs (including disbursements) of the public authority.
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Re: JR - Can a judge disregard findings of unlawfulness?

Postby dls » Mon Dec 26, 2016 6:41 am

Given that the outcome of Judicial Review should not be arbitrarily decided by any Judge of the Administrative Court,


Sorry, but that is exactly what is being asked of him, He is being asked to act in the manner of an arbitrator to make the decision whether to grant judicial review. He is being asked to arbitrate.

You clearly have some particular position in mind. You seem to assume that you can arbitrarily apply to a decision maker your own made up rule of 'two strikes and you are out'. There is no such rule. You want us to just make one up for you. We can't.


I am sorry, but I read your sentences and they do not make sense. I just cannot read your sentences and know what you are trying to say.
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