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Prerogative Orders
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Ordinary Orders
(i) An injunction may be claimed against a public authority or official, to restrain
unlawful acts which are threatened or are being committed. It is an equitable
remedy in the form of a court order, whereby party is required to do or refrain
from doing. In Geila V Sassman Brown & Co, held that for an interim
injunction to be granted, it must be shown that the applicant has a prima facie
case, with a probability of success.
An injunction is an order made by the court to stop a public body from acting
in an unlawful way. Less commonly, an injunction can be mandatory, that is, it
compels a public body to do something. Where there is an imminent risk of
damage or loss, and other remedies would not be sufficient, the court may
grant an interim injunction to protect the position of the parties before going
to a full hearing. If an interim injunction is granted pending final hearing, it is
possible that the side which benefits from the injunction will be asked to give
an undertaking that if the other side is successful at the final hearing, the
party which had the benefit of the interim protection can compensate the
other party for its losses. This does not happen where the claimant is legally
aided.
(ii) A declaratory judgment may be obtained which merely declares the legal
relationship of the parties and is not accompanied by any sanction or means
of enforcement. The authority of a court's ruling on law is such that a
declaratory judgment will normally restrain both the government and public
authorities from illegal conduct. In Opoloot V AG, court refused to grant the
applicant on grounds that it would embarrass and prejudice they security of
the state.
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must give effect to it. Whether he has or not is a question to be decided in the
event of dispute by judges. This would mean that when a power vested in a
decision-maker is exceeded, acts done in excess of the power are invalid as
being ultra vires (substantive ultra vires).
An example would be where a local council, whose power is derived from
statute, acts outside the scope of that authority. Bromley Council v Greater
London Council (1983).
Government Ministers have also sometimes acted outside their authority. R v
Home Secretary, ex parte Fire Brigades Union (1995).
(B) IRRATIONALITY
By irrationality as a ground for judicial review, Lord Diplock in the GCHQ Case
(1985) meant what is referred to as Wednesbury unreasonableness.In
Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948)
the Court of Appeal held that a court could interfere with a decision that was
'so unreasonable that no reasonable authority could ever have come to it'.
Lord Diplock in the GCHQ Case said that this applies to a decision which is so
outrageous in its defiance of logic or of accepted moral standards that no
sensible person who had applied his mind to the question to be decided could
have arrived at it.
Case examples include: Strictland v Hayes Borough Council (1896), R v
Derbyshire County Council, ex parte The Times (1990)
This ground has been used to prevent powers from being abused by, for
example, exercising a discretion for an improper purpose or without taking
into account all relevant considerations.
(C) PROCEDURAL IMPROPRIETY
Procedural impropriety as a ground for judicial review covers the failure by the
decision-maker to observe procedural rules that are expressly laid down in the
legislation by which its jurisdiction is conferred, or a failure to observe basic
rules of natural justice, or a failure to act with procedural fairness (procedural
ultra vires).
nemo judex in causa sua potest (no man can be a judge in his own
cause), which will be breached where the decision-maker has a direct
financial interest or has acted both as prosecutor and judge, or where there is
a real danger of bias. R v Altringham Justices ex parte Pennington (1975)
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(ii)
audi alteram partem (hear the other side), which requires prior notice to be
given of a decision adverse to individual interests together with an
opportunity to make representations. Ridge v Baldwin (1964).