There are three grounds of judicial review claims:

1. Illegality
2. Irrationality
3. Procedural impropriety

Illegality and irrationality are known as the substantive grounds of review as they focus on the decision itself. Procedural impropriety concentrates on how the public body reached the decision in question.

Most judicial review claims concern the first ground of illegality also known as ultra vires.

Legal definition of an action which is done without authority is called ultra vires which means ‘beyond power’. This action is then considered ‘invalid’.

Judicial review considers if the public body acted unlawfully and not whether the decision was right or wrong.

The courts will normally get involved if:

Public body exceeds its powers and does not act in accordance with the legislation (ultra vires) or where the act is unreasonable or irrational

1. Public body makes serious factual error in reaching decision

In the GCHQ case, Lord Diplock defined illegality as a ‘failure by a decision maker to understand correctly and give effect to the law that regulates his decision making process’.

There are various claims that fall under the ground of illegality, such as:

 Acting without legal authority (ultra vires)

Public bodies cannot act without legal authority and beyond its granted powers. They must follow the prescribed procedures and in accordance with higher authorities.

1. The Rule Against Delegation: ‘Delegatus non Protest Delegare’ or Fettering of Discretion

This rule states that once the decision-making powers are delegated by Parliament, they cannot be further improperly delegated or sub-delegated. It is said that public bodies should not blindly pursue the guidelines or restrict the exercise of its discretion.

 1.Failure to take account of relevant considerations

Public body must both disregards irrelevant considerations and take into account relevant considerations.

1. Procedural ultra vires – mandatory or directory requirements

Statutory procedural requirements are placed upon decision-making bodies by the wording of enabling Acts of Parliament. These procedural rules are classified as mandatory or directory. If a mandatory rule is not followed, it will render the decision invalid on grounds of procedural ultra vires, but failure to follow a directory requirement will not and the decision will be valid. The court will look at the wording of the statute in order to decide whether it is mandatory or directory requirement.

In summary, judicial review is constitutionally vital as it allows the courts to hold the executive to account for its actions. This stops the Government to act in an arbitrary, illegal or irrational way and ensures that decisions are taken in a fair and unbiased way. Judicial review protects civil liberties, the rights of people and upholds the rule of law.

We all need insurance for a multitude of reasons, some compulsory such as car insurance and employers liability, and others to cover the eventualities of life such as health insurance, life insurance, home contents and so on. But many of us have also faced the frustration that when it comes to the need to make a claim on an insurance policy, this can be easier said than done. Insurers of course know that they have the power in this situation, they are simply too big in many cases to risk a court case if they reject a claim in it’s entirety or aspects of it.

As against this, fraud in insurance claims is a also a big issue, particularly when it comes to personal injury related claims, so a balanced approach is needed.

On balance, we think that proposals put forward by the Law Commission do represent a better starting position for insurance claim law than is currently in place, subject to insurers getting their act together with fraud prevention which is a scourge for the vast majority of honest individuals.

Under the new proposals the starting point would be that if insurers delay or fail to pay a valid claim they would be entitled to compensation. In other words, the primary obligation of insurers would be altered from preventing loss to the insured to paying valid claims after a reasonable time.

Employment law affects every business, large or small, so when there are significant changes, it is important employers and employees are aware of them.

Most employers will tell you in strong terms that they consider employment law to be inherently biased in favour of the employee, and there are good reasons for this perception. However, those reasons are largely linked with factors outside of the legal tests for unfair dismissal and discrimination, which are in reality quite favourable for employers (subject in the case of unfair dismissal to compliance with procedure as well as substance).

The reason so many Tribunal claims are made 9rising year on year for many years) is down to the 2 factors that are being changed :-

1. You only need to be employed for a continuous period of 1 year before making an unfair dismissal claim
2. There are no court fees payable to start an employment tribunal claim

This second factor is particularly significant. When combined with the fact that win, lose or draw, the usual rule (subject to exceptions where the claimant can be shown to have acted wholly unreasonably or vexatiously) is that neither party recovers legal costs, the employee has little to lose by starting a tribunal claim and the employer will often settle the claim rather than waste costs on legal fees. This is why around 80% of cases do not go to a final hearing.

The new rules will be that the qualifying period will be 2 years from sometime in 2012 and court fees will be payable from sometime in 2013. This will almost certainly result in less claims being lodged.

Do you have an opinion on these changes ? Please let us know.