Under the (fictitious) Local Public Houses and Restaurants Act 2005, a local Licensing Authority may refuse to issue an alcohol licence on grounds specified under section 3 of the Act. Rachel, who has just left her job as a fashion consultant, had applied to her local authority for a licence to serve alcohol at a new restaurant she was in the process of opening, "The Central Pork".
The Licensing Authority, also responsible for the licensing of guns and gambling establishments, did not have time to deal with Rachel's application and therefore delegated the task to a sub-committee, made up of 3 local people, Ross, Monica and Joey. On the day the sub-committee was supposed to meet to process applications, Ross was called away to attend a seminar at the local museum and Joey had an audition for a part in a West End play, therefore Monica made the decision herself not to grant the licence.On 19th May 2007, Rachel received a letter simply stating that her application had been refused. She was not informed of the reason why and was not allowed to read the report made by the sub-committee, nor was she able to contact the committee members.
Rachel was also told that she would have to wait twelve months before being eligible to make any new application. Rachel wanted to have the restaurant up and running by the summer.Rachel has since found out that the restaurant over the road from her premises, "Chandler Bing's", employs Monica as the head chef.In this brief essay the process of Judicial Review will be examined thoroughly; including a discussion on the different types of grounds for making a claim and also remedies available to a claimant following a successful claim. The problem question will be applied to the discussion to give a better understanding, and to show the correct context in which the system operates.
The area of law this questions concerns is Judicial Review (JR), otherwise known as the supervisory jurisdiction of the high court; and it is 'essentially a procedure whereby the courts are able to determine the lawfulness of the exercise of executive power1'. It will involve matters between the individual or group and the State. It is important to point out that JR is not an appeal, but a separate process; an application to the courts to review a decision.JR must be used as remedy when challenging the decision of a public body, as in O'Reilly v Mackman2 where it was held that to use the private law process when JR was available, was an abuse of process.
However Lord Diplock expressed this was a general rule and there would be some exceptions; which subsequently developed from case law. For e.g. if there is a mix of private/ public law issues, then regular proceedings should not be prohibited3. The House of Lords (HL) in Mercury Communications Ltd v D.
G of Telecommunications4 took a relaxed approach to the rule in O'Reilly due to the need for flexibility; rather than compartmentalizing cases as either public or private law matters5.Furthermore another exception to the rule in O'Reilly is those cases which involve Collateral Challenge; using JR as a defence for civil action or criminal charge6.1. Parpworth, Pg 243 (12.1)2.
O'Reilly v Mackman [1983] 2 AC 2373. HL in Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 AC 6244. Mercury Communications Ltd v D.G of Telecommunications [1996] 1 All ER 5755. As explained by Parpworth, Pg 251 (12.20)6.
Leading Case Boddington v British Transport Police [1999] 2 AC 143As a claim for JR can only be made against a public body, it is necessary to determine whether the body is in fact open to proceedings7. To determine if an organization is a public body, it is important to look at the source of their power; which will usually derive from Statute, delegated legislation or the common law. However where a complicated case is involved it may be necessary to examine the nature of the power they exercise. For e.
g. in R v Panel on Takeovers and Mergers ex p Datafin Plc8 the Court of Appeal (CA) expressed that an organization can be recognized as a public body due to the nature of the power it exercises and introduced the 'but for' test. This can be contrasted with companies which may still satisfy the 'but for' test, but an application for JR will be defeated if they a private body9.In this case the Local Licensing Authority would appear to be a public body whose decisions are reviewable by the courts because they derive their power from Statute; the Local Public Houses and Restaurants Act 2005.
Therefore Rachael would be advised to make a claim for JR.In addition, any claim must comply with the Civil Procedure Rule 54 and must be made promptly and within 3 months of receiving the decision being challenged. The claimant must also have 'locus standi'10 (sufficient interest). It is fair to say that Rachael does have sufficient interest as her livelihood is at stake and her restaurant is under threat.
