INTERIM MATTERS

Remedies

Stays, Interim Declarations, and Interim Injunctions

[3.44] The granting of interim remedies is governed by section 19 of the Judicature (Northern Ireland) Act 1978 and by RCJ Order 53, rule 3(13).

[3.45] If the court is considering whether to grant an interim injunction—for instance an application for an order under this rule where the Court has granted leave under rule 3 on appeal from the refusal of such leave by the Court.’ But note that the Court of Appeal can, in appropriate cases, treat a renewed application for leave as an appeal, viz where the material before the Court lends itself to that approach: see, eg, Re Donaldon’s Application [2009] NICA 25.

¹⁸⁷ Re UK Waste Management’s Application [2002] NI 130, 139.

¹⁸⁸ Judicature (Northern Ireland) Act 1978, s 35(2)(g).

¹⁸⁹ RCJ Ord 59, r 4(1)(a).

¹⁹⁰ R v Secretary of State for Education, ex p Avon CC [1991]1 All ER 282.

¹⁹¹ Khan v Western Health and Social Services Trust [2010] NIQB 92, paras 20—23, Gillen J. Compare P Maguire, â€?The Procedure for Judicial Review in Northern Ireland’ in B Hadfield (ed), Judicial Review: A Thematic Approach (Dublin, Gill & MacMillan, 1995) pp 371, 381. And see, in England and Wales, CPR, r 25.1(b). to prevent a course of administrative action or to prevent the coming into force or maintaining in force of subordinate legislation that is challenged as ultra vires—it will determine the matter in accordance with a â€?balance of convenience’ test.^[460] This test is typically associated with private law disputes in which a plaintiff must establish that there is a serious issue to be tried, at which stage the court will decide whether damages would be an adequate remedy for either party or whether the balance of convenience favours the award of an injunction. In public law proceedings, the application of the test varies according to the context of the case and in the light of corresponding public law considerations. Several such considerations were apparent in Re Eurostock’s Appli­cation, where a meat producer had challenged subordinate legislation in the area of public health as contrary to EU law’s free movement of goods provisions (the interim matter was not in fact whether an injunction should be granted but whether an order of the High Court that had quashed the legislation should be stayed pending an Article 267 TFEU reference to the CJEU).^[461] The Court of Appeal emphasised that, where the public interest is engaged by a dispute, the likelihood of irreparable financial damage to a private party must be set against factors that include the importance of upholding national legislation and the risk to public health if the legislation in question is quashed.^[462] The court on this basis held that the order of the High Court should be stayed, save in respect of that part of the order that quashed the provisions of the legislation that had direct implications for the private party’s economic activities.^[463]

[3.46] Interim (and final) injunctions are available against all public bodies and also against Ministers of the Crown.

The European Communities Act 1972 and EU Law

[3.47] It is a core requirement of the EU legal order that individuals have access to effective national remedies for the purposes of protecting their EU law rights and that any national rule of law that would prevent such effective protection must cede to the superior force of EU law.^[468] This is true both in terms of the availability of final remedies (see [3.79])^[469] and in terms of the interim protection of rights. Hence in Factortame (No 2),^[470] the House of Lords held that section 21 of the Crown Proceedings Act 1947—which prevents the grant of injunctions against the Crown in civil proceed- ings—did not apply where EU law rights were in issue.

[3.48] Should an individual challenge the lawfulness of an EU Regulation or Directive in the High Court, the question may arise whether an interim injunction should issue to prevent the operation of the EU measure and/or national regulations or other legisla­tion that give(s) effect to the EU measure. Domestic courts may not, as such, rule on the lawfulness of an EU measure—the issue should be referred to the CJEU under the Article 267 TFEU reference procedure^[474]—although they may grant injunctions pending the CJEU’s decision on the legality of the EU measure.^[475] Where the EU measure under challenge is already in force—that is, national legislation has been introduced to give effect to an EU Directive within the prescribed time-frame—the test for granting an injunction will be the �serious doubt’ and �serious and irreparable damage’ formulation of the CJEU (the �doubt’ relates to the validity of the measure; the �damage’ to that to be suffered by the applicant). Less clear, however, is the test to be applied when the time-limit for giving effect to a Directive has not passed but where a challenge is made to national legislation that has already been introduced to give effect to the Directive.

The Human Rights Act 1998

[3.49] Section 8(1) of the Human Rights Act 1998 reads:

In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

The interim remedies available where leave to bring an application for judicial review has been granted will therefore also be available should that application be founded wholly or partly on any of the ECHR provisions that have effect under the Human Rights Act 1998. It is, however, also true that the remedies will not be available in respect of primary legislation^[478] as the Act does not enable the courts to strike down such legislation as unlawful. The courts may instead only declare such legislation to be incompatible with the ECHR^[479] and, as such declarations have no legal effect on the legislation in respect of which they are made,^[480] it follows that an interim injunction could not issue.

Discovery

The General Position

[3.50] Discovery in judicial review proceedings is, in general, ordered only exception­ally and, where it is ordered, it is often more limited in its extent than that which would typically be ordered in private law proceedings.^[481] Indeed, while the courts now look at the issue on the merits of individual cases rather than on the basis of a near-blanket presumption against discovery (particularly in cases under the Human Rights Act 1998—see [3.55]-[3.56]), it would appear that orders for discovery will remain as an exception rather than a rule.^[482] The reason for this follows both from the costs and inconvenience involved in full discovery and from the role of the courts in judicial review proceedings.

[3.51] The time for seeking discovery is after leave has been granted and affidavit evidence completed,^[485] as the respondent will by that stage have set out fully the cir­cumstances leading to the decision including, where appropriate, references to any documents generated and/or upon which reliance has been placed in the decision­making process. Respondents need not disclose every document upon which reliance is placed and/or which is referred to in the replying affidavit, although it must as a matter of law disclose fairly the decision making process.^[486] This corresponds to a duty of candour that is imposed on both parties to proceedings but which has a pronounced importance in respect of public decision-makers who �hold the cards’ and who must act in the light of the need for �trust between the governed and the government’.^[487] Should a respondent fail to observe the duty of candour, this may therefore promote the need for discovery if there is any resultant obscurity in relation to the facts. Failure to observe the duty may also lead the court to draw inferences against the decision­maker on points that remain obscure^[488] and, in extreme cases, to refer to the Attorney-General the concern that the decision-maker may have interfered with the administration of justice.^[489]

[3.52] Interlocutory applications for discovery can be determined by a judge in chambers unless the court orders otherwise,^[490] and the decision of the judge can be appealed to the Court of Appeal.^[491] While the High Court has the power to order discovery of any documents in the respondent’s possession^[492] (subject to arguments of, for instance, public interest immunity: see [3.57]), it will, as per RCJ Order 24, rule 9, refuse to make an order if it is of the opinion that discovery is not necessary at that stage either for disposing fairly of the matter or for saving costs.^[493] The court will also not permit the applicant—on whom the onus of proof rests—to benefit from contin­gent (or �Micawber’) discovery.^[494] Although it has been held that the applicant need no longer show that there is a demonstrable contradiction or inconsistency or incomplete­ness in the respondent’s evidence, it has at the same time been emphasised that disclosure orders are likely to remain exceptional in judicial review proceedings and that the courts should guard against purely speculative claims for discovery.^[495] Discovery on foot of those would be �by way of a fishing licence’ and would be oppressive.^[496]

[3.53] The corresponding judicial approach to a specific claim for discovery will depend on how far—if at all—the court considers that discovery would be required to enable it to resolve an issue that arises in the application. Much here will fall to be determined with reference to the grounds for judicial review in the case, as reflect upon the constitutional role of the courts in review proceedings.^[497] Although the grounds for review elide into one another and overlap, they are often subdivided under the headings of illegality, substantive review (which was previously synonymous with Wednesbury unreasonableness), and procedural impropriety.^[498] Hence where a decision is, for instance, challenged as Wednesbury unreasonable, discovery may not be considered necessary as the issue for the court will be whether a decision is lawful in the sense that it is not �so unreasonable that no reasonable’ decision-maker could have taken it.^[499] This is a question that is concerned with the final decision itself rather than the process by which it was reached and, as Wednesbury has traditionally entailed that the courts do not consider the merits of a final decision (subject now to the influence of the Human Rights Act 1998—see [3.55]-[3.56]), discovery will be unnecessary.^[500] On the other hand, the applicant may be able to point to material which suggests that the decision-maker has acted unfairly or was guided by irrelevant considerations in the decision-making process, and the court may here consider that further disclosure would be necessary.^[501] However, where there is no dispute as to the facts governing the proce- dure^[502] or the applicant merely has a suspicion that the decision-maker was influenced by (for example) irrelevant considerations, discovery may again be deemed unnecessary and/or inappropriate.

[3.54] It should finally be emphasised that the courts now consider requests for dis­covery very much on the basis of the case before them. This is the result of the House of Lords judgment in Tweed v Parades Commission for Northern Ireland,^[503] before which case there existed a strong presumption against orders for discovery.^[504] In Tweed, the House thus held that the judicial approach to applications for discovery should in future be guided by �a more flexible and less prescriptive principle, which [gauges] the need for disclosure in accordance with the requirements of the particular case, taking into account the facts and circumstances’.^[505] While Tweed was, at the same time, a case that arose under the Human Rights Act 1998^[506] (see [3.55]-[3.56]), it remains of more general significance insofar as it marked a move away from the pre-existing, and narrow, approach to discovery. The House of Lords therefore accepted that the previous approach was not beyond criticism and that requests for particular documents—though not for general discovery—should in future be treated on their merits.^[507] On the other hand, the House of Lords also stated that it did not envisage that the need for further discovery would arise in most applications for judicial review^[508] and that courts should continue to guard against �fishing expeditions’.^[509] Their Lordships also held that, where a judge considers that there may be a need for further discovery, he or she should first assess the relevant documents and then decide whether discovery is necessary for the fair disposal of the case.^[510]

The Human Rights Act 1998

[3.55] Where an application for judicial review is made wholly or partly under the Human Rights Act 1998, it is accepted that the nature of the issues and corresponding general principles of law involved may mean that further discovery is necessary^[511] (the point can also arise in EU law cases^[512]). Under section 6 of the Act, courts must review public authority actions and inactions for compliance with the provisions of the ECHR that are contained in Schedule 1 to the Act (acts, failures to act, and so on, will not, however, be unlawful where they are authorised by primary legislation^[513]). When doing so, the courts must �take into account’ the ECHR’s general principles of law, which include the proportionality principle that requires a reviewing court to assess whether the correct balance has been struck between the reason for a decision and the impact that that decision has had—or would have—on an individual.^[514] Although the courts also use a �discretionary area of judgment’ doctrine that seeks to ensure that use of the proportionality principle does not result in the courts assuming the place of the original decision-maker,^[515] the principle nevertheless potentially demands heightened judicial scrutiny of decision-making processes and outcomes (it is thereby often taken to contrast with the Wednesbury approach to substantive review—see [3.53]).^[516]8 In terms of discovery, the corresponding point is that a court may be able to subject a decision to heightened scrutiny only where it is able to assess fully all documents that relate to a decision under challenge. While mindful of the discretionary area of judgment doctrine, the courts therefore accept that limited discovery can frustrate proportionality review.^[517]

[3.56] The leading authority on discovery in human rights cases, as with those that do not raise human rights points (see [3.54]), is the House of Lords judgment in Tweed v Parades Commission for Northern Ireland.^[518] The applicant here had been granted leave to challenge, as contrary to Articles 6, 9, 10, and 11 ECHR, a decision of the Parades Commission that placed conditions on an Orange Order parade organised by the applicant (the Article 6 point concerned the applicant’s inability to contest confi­dential evidence given to the Commission in advance of its determination; the Articles 9, 10, and 11 points went to the proportionality of the interference with the qualified religion, expression, and association guarantees in those Articles). The applicant there­after made an application for discovery of various documents held by the Commission, which resisted the application for the reason that much of the information in question had been provided on a confidential basis. However, the House of Lords considered that discovery of some of the documents was necessary in the case, precisely because of the demands of the proportionality principle. While their Lordships did not at the same time accept that fuller discovery would follow in every case that involved the proportionality principle,^[519] they accepted that discovery was needed here and that the judge should first examine the documents to assess whether they would be needed for the disposal of the case. The House of Lords also held that, should the judge decide that disclosure to the applicant thereafter was necessary, the possibility of redaction should be considered and, after that, any argument of public interest immunity.^[520] In the event that the judge decided that discovery was not necessary, it was said that all other points would be moot.

Public Interest Immunity

[3.57] Where an order for discovery is made a respondent may argue that certain of the listed documents or materials should not be disclosed because they attract public interest immunity. Where such arguments are made, it is for the court to decide whether the public interest in non-disclosure outweighs the applicant’s interest in obtaining the information.^[521] The court’s approach will here depend upon the context of the case and the nature of the evidence, and the court may be more inclined to accede to public interest immunity arguments where, for instance, the evidence would not give substan­tial support to the applicant’s case or where disclosure would be prejudicial to national security. On the other hand, the court may be less likely to accept arguments of public interest immunity where the applicant’s human rights are involved, for example, where proceedings relate to actual or possible criminal liability.^[522] In cases of this latter kind (and others), both the common law and the ECHR recognise that there is an enhanced need for transparency and that any determination of a claim for immunity should account for that.^[523]

The Freedom of Information Act 2000

[3.58] An applicant may also be able to gain access to documents and so on held by a public authority under the Freedom of Information Act 2000 (public authorities for these purposes are listed in Schedule 1 to the Act, as read with sections 3-5^[524]6). A request for such access may be made in advance of an application for leave—for instance in tandem with a letter written in accordance with Pre-Action Protocol (see [3.14]- [3.16])—or it may be made while judicial review proceedings are ongoing.^[525] Requests under the Act are made on the basis that any person is entitled to be informed in writing by the public authority whether it holds information of the description specified in the request (the so-called �duty to confirm or deny’) and, if so, to have that informa­tion communicated to them.^[526] While an authority is not obliged to disclose information and/or to confirm or deny its existence when the information is exempt from dis- closure^[527]—it may also refuse a request where it considers that the cost of compliance would exceed �the appropriate limit’^[528] or where the request is repetitive or vexa­tious^[529]—it must accede to or refuse the request within 20 working days.^[530] Its response to the request may, however, be made contingent upon a �fees notice’ that will require that the applicant pay the amount specified in the notice before the authority will comply with its obligations under the Act.^[531] Under those circumstances, the corre- spending working days between the date of the fees notice and payment are to be disregarded when calculating the 20 working day time-limit.^[532]

[3.59] Refusals of requests—or to confirm or deny that the authority holds the infor­mation in question—will most often be made on the ground that the information is governed by a provision of the Act which confers either an �absolute’ or a �qualified’ exemption^[533] (these exemptions also correspond in large part with the Act’s under­standing that certain �classes’ of information should not be disclosed [the absolute exemption]^[534], and with the Act’s prejudice test that requires the authority to consider whether disclosure would, or would be likely to, prejudice particular interests or pro­cesses [the qualified exemption]^[535]). Where the requested information attracts absolute exemption, refusal of the request will follow automatically;^[536] and the refusal of a request relating to information that has qualified exemption will depend on the authority concluding that the public interest in maintaining the exemption outweighs the public interest in disclosure^[537] (this will be in addition, where appropriate, to any assessment of prejudice). Should an applicant wish to challenge a refusal to confirm or deny or to disclose information, they must first use the authority’s internal complaints procedures,^[538] after which stage he or she may bring the matter to the Information Commissioner.^[539] Should the Commissioner’s office consider that the authority is in breach of the Act, it will serve on the authority a �decision notice’ that specifies the steps to be taken to comply with the Act (the Commissioner’s office may alternatively give the applicant— called �the complainant’ in the Act—a reasoned notification that no decision has been taken).^[540] The applicant or public authority may then appeal the decision notice to the First-tier Tribunal (Information Rights)^[541], which may �allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal’.^[542] Challenges to decisions of the Tribunal are governed by Part I of the Tribunals, Courts and Enforcement Act 2007.^[543]

[3.60] In some circumstances, requests for information from government departments may alternatively be dealt with by way of an �override certificate’ issued by the Execu­tive.^[544] Such certificates can be controversial in constitutional terms, as they can be issued not only in respect of an unfavourable decision of the Commissioner but also a finding of the First-tier Tribunal (Information Rights). In that instance, a member of the Executive will of course have overridden the determination of a judicial authority, and the remaining remedy is an application for judicial review.^[545] Also controversial, at least potentially, is the option of using �conclusive evidence’ certificates where requests for information are made in respect of, primarily, matters of national security.^[546] Where such a certificate is issued the Information Commissioner cannot question it and the matter can only be appealed, at the initiative of either the Information Commissioner or an individual applicant, to the First-tier Tribunal (Information Rights).^[547] Depending on the nature of the certificate, the Tribunal can either quash it^[548] or hold, with refer­ence to grounds applied by the High Court in judicial review proceedings, that the Minister did not have reasonable grounds for issuing the certificate.^[549]

Cross-examination and Interrogatories

[3.61] An applicant may also make an interlocutory application, under RCJ Order 38, rule 2(3) and RCJ Order 53, rule 8, to obtain an order to compel the attendance of a deponent for the purposes of cross-examination.^[550] As with the courts’ more general approach to discovery ([3.50]-[3.54]), much will depend on the issues before the court and whether â€?the party seeking cross-examination [can] make out a case that in the particular circumstances there is something specific which requires such further investigation’.^[551] The court may, moreover, prefer to rule on the application at the sub­stantive hearing rather than at the interlocutory stage, as the particular issues for the court may then be clearer.²⁸⁴ This may also be true even where rights under the ECHR and Human Rights Act 1998 are central to the application for judicial review.²⁸⁵

[3.62] Interrogatories are also available in judicial review proceedings (RCJ Order 26 and RCJ Order 53, rule 8). The court, on an application for this interlocutory facility, will here too be guided by the principles that govern discovery.²⁸⁶

Papers for the Hearing

[3.63] Papers for the hearing should be prepared and filed in accordance with Part F of Judicial Review: Practice Note 01/2008.²⁸⁷ This states that the applicant must file a paginated and indexed set of papers containing all relevant documents required for the hearing of the judicial review at least five working days before the hearing date and that the papers should include those documents required by the respondent(s) and any other party who is to make oral or written representations at the hearing. The Practice Note also states that the papers filed at the leave stage may serve as the papers for the hearing (see [3.18]-[3.19]), although these must be supplemented by updated indexes and skeleton arguments and related documents. Skeleton arguments, in turn, are com­pulsory in the substantive hearing of a judicial review and must be prepared in accordance with Practice Direction 6/2011: Timetabling and Submission of Skeleton Arguments, Trial Bundles and Books of Appeal.²⁸⁸

[3.64] Part F of Judicial Review: Practice Note 01/2008 also states that, in cases where the materials filed in the exchanges of affidavits are not all necessary for the hearing, the court may order at a prehearing review of the case that a â€?core’ bundle should be prepared for the hearing. Unless the court directs otherwise, this core bundle should be paginated and indexed, with sections comprising: the applicant’s affidavit(s); the applicant’s exhibits; the respondent’(s’) affidavit(s); the respondent’(s’) exhibits; and any notice party’s affidavit(s) and exhibits (on notice parties see [3.37]-[3.38]). While the contents of the â€?core’ bundle will be directed specifically or in general outline by the court, the Practice Note emphasises that the applicant is responsible for preparing and filing the â€?core’ bundle in accordance with the directions of the court. Failure to act in accordance with the directions of the court may have implications in costs.²⁸⁹

The Grounds for Review

[3.65] Before the court will grant a remedy—the remedies are discretionary (see

²⁸⁴ Re McCann’s Application, 13 May 1992, unreported.

²⁸⁵ See, by analogy, Tweed v Parades Commission for Northern Ireland [2006] UKHL 53, [2007] 1 AC 650, at [3.56]. For an example of cross-examination being ordered in a human rights case see, in England and Wales, R (Wilkinson) v Broadmoor Hospital Authority [2002] 1 WLR 419.

²⁸⁶ Re Williamson’s Application (No 5) [2009] NIQB 30 para 15, quoting para [3.60] of the first edition of this book.

²⁸⁷ Available at www.courtsni.gov.uk, revised 10 October 2013.

²⁸⁸ Judicial Review: Practice Note 01/2008, Part E.

²⁸⁹ Re Doherty’s Application [2006] NIQB 33, paras 28-9. On the importance of efficient preparation of papers see further Re Pollock’s Application [2013] NICA 16, para 2, Girvan LJ.

[3.84]-[3.91])^[552]—the applicant must establish that the decision, act, failure to act, or other measure is contrary to one or more of the grounds for judicial review. These grounds, which overlap with one another, have long been divided under the headings of illegality, Wednesbury unreasonabless/irrationality, and procedural impropriety.^[553] They have, however, also long since developed within and beyond this three-way clas­sification and they now include proportionality, equality, legitimate expectation, and error of fact (among others). Each of the grounds for review is considered in more detail in chapters four to seven.

Standing

The General Position

[3.66] The test for standing—at least in cases outside the Human Rights Act 1998—is whether the applicant has a �sufficient interest in the matter to which the application relates’.^[554] Although RCJ Order 53, rule 3(5) states that leave should be granted only where the applicant satisfies this test, it is solely hopeless or meddlesome applications that will be dismissed at the leave stage, and the issue is more typically considered at the substantive stage in the light of the full legal and factual context of the case^[555] (the test applies equally and irrespective of the remedy sought; the relevant facts will usually be those at the time when the application for judicial review was instituted, not when it was heard^[556]). In the vast majority of cases, the application will be made by an individual who claims to be directly affected by a decision or other measure, and the question for the court will be whether he or she has the requisite sufficiency of inter- est.^[557] However, the courts have also developed a �liberal’ approach to standing and accepted that representative applicants, statutory bodies and/or pressure groups should sometimes be taken to have standing to challenge a respondent’s action or inaction.^[558] The courts have likewise allowed private individuals to bring applications for judicial review in respect of matters of �public interest’;^[559] and they have also held that it is not an abuse of process for a community that is affected by a decision to name one appli­cant who may qualify for legal aid ahead of another applicant who would not, so long as the named applicant has standing in the legal and factual context of the case.^[560]

[3.67] The willingness of the courts to accept representative and/or public interest applications is not without controversy, and it is sometimes said that public interest litigation can result in courts becoming involved in essentially political disputes.^[561] However, the liberal approach is, in turn, often justified with reference to the need to vindicate the rule of law and to ensure that government illegality does not escape appropriate scrutiny in the courts.^[562] The point here is simply that judicial scrutiny of exercises of public power is a constitutional fundamental and that the courts’ ability to exercise such control should not be frustrated by the absence of an applicant with a directly affected interest. While applications for judicial review will thus ordinarily be made by individuals whose interests are directly affected by a decision, the wider public interest in the rule of law means that it is not always necessary to have such an applicant.^[563] The courts, in other words, will be reluctant �to decline jurisdiction to hear an application for judicial review on grounds of [the lack of standing of] any respon­sible person or group seeking, on reasonable grounds, to challenge the validity of government action’.^[564]

[3.68] The leading statement of the liberal approach—and of the justification for it—is contained in the Court of Appeal’s judgment in Re Ds Application.^[565] The appli­cant in this case was an anonymous wheelchair user who sought to challenge a number of decisions of the Department of Regional Development relating to the unlawful erection of an Orange Order Arch in the town of Glengormley. Although it was ulti­mately held that the applicant did not have standing—there had been a lack of candour at first instance and the applicant had also failed to provide sufficient evidence to the Court of Appeal to justify his claim for anonymity—the Court listed four �generally valid’ propositions about the current judicial approach to standing. These were: (1) that standing is a relative concept, to be deployed according to the potency of the public interest content of the case; (2) that the greater the amount of public importance that is involved in the issue before the court, the more ready the court should be to hold that the applicant has the necessary standing; (3) that the focus of the courts is more upon the existence of a default or abuse on the part of a public authority than the involvement of a personal right or interest on the part of the applicant; and (4) that the absence of another responsible challenger is frequently a significant factor, so that a matter of public interest or concern is not left unexamined.^[566]

Section 7 of the Human Rights Act 1998

[3.69] Where an application for judicial review is made partly or wholly with reference to the guarantees in the ECHR, the test for standing in respect of the rights under the ECHR is markedly less liberal than that associated with the sufficiency of interest test (on which see [3.66]-[3.68]). The test here, instead, is that contained in section 7 of the Human Rights Act 1998, which states that an individual may rely on the ECHR in domestic proceedings only where he or she is, or would be, a �victim’ of the decision or other measure in question.^[567] The term �victim’ corresponds to that used in Article 34 ECHR, which governs standing before the ECtHR,^[568] and the courts are obliged to �take into account’ the ECtHR’s case law on that Article when determining questions of standing under the Human Rights Act 1998.^[569] That case law has long been charac­terised by a restrictive approach to access to the ECtHR, and it is clear that an applicant must have suffered and/or will suffer in some concrete way before they will satisfy the Article 34 ECHR standard^[570] (although the close relatives of a person affected by a decision may bring proceedings on his or her behalf where the affected person is in a �vulnerable position’;^[571] the next of kin of a person who has died in circumstances that involved state (in)action may also bring proceedings either in the place of the deceased— where the applicant would be an indirect victim^[572]—or as a victim in their own right^[573]). Indeed, while there may be some ECtHR authority to suggest that abstract review of State action/inaction is possible,^[574] that authority exists very much as an exception to a well-established rule. Victims for the purposes of proceedings before the ECtHR and for the purposes of section 7 must therefore ordinarily be able to demonstrate that they have been, or will be, �actually affected by the violation’ alleged.^[575]

[3.70] In terms of judicial review, there are three points of note about section 7. The first is that representational and/or public interest applications of the kind seen outside the Human Rights Act 1998 (see [3.66]-[3.68]) are not generally possible within the framework of the Act (that is, representative bodies and so on will be able to rely on the ECHR only where their own interests are concretely affected).^[576] Although there have been some cases that have tended towards abstract review on the basis of the ECHR^[577]—statute may also provide that a particular body need not satisfy the victim requirement when bringing proceedings in its own name^[578]—there have been many more cases in which applicants have been found not to have standing under section 7. These have included applications made by a representational body that sought clarification of the law on abortion in Northern Ireland (the body in question conceded that it had no standing to raise points under the Human Rights Act 1998^[579]) and by an independent organisation that sought to rely upon Article 2 ECHR when requesting further informa­tion from the Police Service of Northern Ireland and the Police Ombudsman about ongoing investigations into the murder of one of the organisation’s members.^[580] On the other hand, the courts have held that an individual who is �particularly vulnerable’ may be represented by another family member, albeit that the application should name the injured person as the applicant and be accompanied by a letter of authority that allows the other family member to act on his or her behalf.^[581] Such an application is in that way made with the consent of the victim of the alleged breach and does not fall to be described as an actio popularis.^[582]

[3.71] The second point concerns cases where an individual has successfully brought proceedings before the ECtHR and then initiates a further application for judicial review in the High Court in order to obtain additional remedies. This happened in In Re McKerr,^[583] where the son of a man killed in 1982 by undercover officers of the RUC sought, among other remedies, mandamus to compel the Secretary of State for Northern Ireland to order an Article 2 ECHR-compliant investigation into the circumstances of his father’s death (the application for judicial review was brought in the light of the ECtHR judgment in McKerr v UK^[584]). One of the questions on appeal before both the Court of Appeal and the House of Lords was whether Mr McKerr had ceased to be a victim for the purposes of the Act once judgment had been entered in his favour in Strasbourg. Although the point was ultimately rendered moot by the House of Lords’ finding that the Human Rights Act 1998 did not have retrospective effect and that Mr McKerr could not rely upon it—a finding that has since been overtaken in Article 2 ECHR cases by the Supreme Court’s ruling in McCaughey^[585]—the House emphasised that the applicant would otherwise have been a victim within the meaning of Article 34 and section 7. This was because the ECtHR ruling had not resolved all issues relevant to Article 2 ECHR, in particular as related to the proportionality of the use of force by the police.^[586] McKerr on that basis suggests that there may be cases in which indi­viduals will remain as �victims’ for so long as their interests are affected by the State’s failure fully to discharge its obligations under international law.

[3.72] The third point concerns public authorities. Article 34 ECHR states that �any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties’ may institute proceedings before the ECtHR. The wording of this Article has long been understood to preclude proceedings brought by a State and/or by its manifestations^[587] and it is clear that �core’ public authorities for the purposes of section 6 of the Human Rights Act 1998 cannot be victims for the purposes of section 7^[588] (although such authorities may still bring judicial review proceedings in cases outside the Act). Less clear, however, is the position in respect of �mixed function’ public authorities. Mixed function authorities are those persons �certain of whose functions are functions of a public nature’ and who are bound by the Human Rights Act 1998 when performing public functions but not when they are performing private acts.^[589] Some commentators have argued that the courts should be slow to recognise bodies such as charities, privatised utilities and companies as section 6 mixed function authorities, as this would mean that the bodies would not be able to rely on the ECHR in other cases as they would no longer exist as �non­governmental organisations’ and so on.^[590] The logic of that argument was, however, doubted in the House of Lords, where it was suggested that a body may be classified as a mixed function authority in one case but still be able to avail of its rights under the ECHR in another when it is acting in a private capacity.^[591] The fact that the comments were obiter nevertheless means that there is, as yet, no definitive authority on the interplay between sections 6 and 7.

Third Party Interveners

[3.73] Third party applications to intervene in proceedings will be made after the leave stage of the relevant proceedings when the court may either refuse to grant permission to intervene or allow interventions by written submissions only; by written and oral submissions; or by written submissions with the possibility of oral submissions being permitted later in the proceedings (Practice Direction 1/2013: Third Party Interveners:^[592] see [3.40]). The courts have emphasised that interventions, whether oral or written, should be confined to �to relevant and apposite matters which directly address the issues before the court’.^[593] It has also been emphasised that interveners should avoid mere repetition of points that have been advanced by one of the parties to the case.^[594]

REMEDIES

[3.74] Where an applicant successfully makes an argument of illegality in respect of a public authority’s actions/inactions, he or she may be granted the remedy or remedies sought in their Order 53 statement. The word �may’ is here to be emphasised, as the remedies in judicial review are discretionary^[595] (albeit that the matter can become more complex when EU law and/or the ECHR are in issue). There is thus a wide range of reasons why a court may decline to award a remedy to an applicant or may substitute a different remedy to that requested. Awards of damages will, on account of judicial approaches to the liability of public service providers, also be exceptional (although the position may be different if the illegality sounds in respect of rights under EU law and/ or the ECHR).

The Range of Remedies

[3.75] The remedies available on an application for judicial review have three principal sources, namely: the Judicature (Northern Ireland) Act 1978 and RCJ Order 53, rules 1 and 7; EU law, as read with the European Communities Act 1972; and the ECHR, as read with the Human Rights Act 1998.

The Judicature (Northern Ireland) Act 1978 and RCJ Order 53: The Prerogative Orders, Declarations, and Injunctions

[3.76] Section 18 of the Judicature (Northern Ireland) Act 1978 and RCJ Order 53, rule 1 both provide that on an application for judicial review an application:

may be made to the (High) Court for one of more of the following forms of relief, that is to say, relief by way of—

(a) an order of mandamus;

(b) an order of certiorari;

(c) an order of prohibition;

(d) a declaration;

(e) an injunction.

The nature and extent of these remedies are examined in more detail in chapter eight, although their effects may be summarised as: (a) an order of mandamus compels a decision-maker to perform a public duty; (b) an order of certiorari quashes a decision or other measure of an inferior court, tribunal, or other body amenable to judicial review (but see also [3.78]); (c) an order of prohibition prevents a decision-maker from acting in an ultra vires manner in the future; (d) a declaration clarifies the legal position between the parties and/or their respective rights and obligations; and (e) an injunction prevents or compels a future course of action and/or issues to stop an ongoing state of affairs. Declarations and injunctions—as opposed to the prerogative orders of mandamus, certiorari, and prohibition—are also available as private law remedies, and the court on an application for judicial review may consider that it would not be appropriate to grant the remedies in public law proceedings (for example, where the issues raised on the application are matters of private, rather than public, law). Under those circumstances—and also where an application for judicial review includes a claim for damages—the court may order that the proceedings be continued as if begun by writ.^[596] An order to continue will not, however, be made unquestioningly, and much will depend on how the issues have been presented in the application for judicial review and on whether the court considers that they lend themselves to continuation as private law proceedings.^[597]

The Judicature (Northern Ireland) Act 1978 and RCJ Order 53: Damages

[3.77] Awards of damages are governed by section 20 of the Judicature (Northern Ireland) Act 1978 and by RCJ Order 53, rule 7. These provisions state that damages may be made in lieu of or in addition to any other relief where (a) the applicant has included with his application for leave a claim for damages arising from any matter to which the application relates and (b) the court is satisfied that, if the claim had been made in a separate action begun by the applicant at the time of making his application, he would have been entitled to damages. This corresponds to the rule that an ultra vires act per se will not give rise to damages^[598] and that an applicant must instead be able to satisfy the court that the relevant facts would sound in, for instance, negligence, breach of statutory duty, false imprisonment, or misfeasance in public office. Private law actions against public authorities are, however, often rendered problematic by a judicial concern to avoid imposing undue financial burdens upon public decision-makers that are providing public services through the exercise of statutory powers and the performance of statutory duties.³³⁷ The corresponding principles and case law are con­sidered in chapter eight.³³⁸

The Judicature (Northern Ireland) Act 1978 and RCJ Order 53: Other Disposals

[3.78] The Judicature (Northern Ireland) Act 1978 and RCJ Order 53 also provide for a number of other disposals. For instance, where the remedy sought is an order of certiorari and the court is satisfied that there are grounds for quashing the decision, it â€?may, instead of quashing the decision, remit the matter to the lower deciding authority concerned, with a direction to reconsider it and reach a decision in accordance with the ruling of the Court or may reverse or vary the decision of the lower deciding authority’³³⁹ (the High Court also has a power to vary sentence on an application for certiorari³⁴⁰). The court may, moreover, issue declaratory judgments under section 23 of the Judicature (Northern Ireland) Act 1978; that is, judgments that pronounce on matters of general public interest in the abstract or where the judgment cannot affect the decision in respect of which it is made or where the party who initiated proceedings no longer has a direct interest in the proceedings³⁴¹ (the courts have, however, also emphasised that it is not the function of the court to give advisory opinions to public bodies³⁴²). Section 24 of the Act finally gives the High Court the power to issue injunc-

³³⁷ See G Anthony, â€?The Negligence Liability of Public Authorities: Was the Old Law the Right Law?’ (2006) 57 NILQ 409.

³³⁸ At paras [8.21]-[8.30].

³³⁹ Judicature (Northern Ireland) Act 1978, s 21; and RCJ Ord 53, r 9(4). And see, eg, Re Zhanje' Applica­tion [2007] NIQB 14 (decision to certify a human rights claim as unfounded for the purposes of para 5(4) of Sch 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 remitted to the Home Secretary); Re McLean’s Application, 25 November 1994, unreported (decision in respect of a bookmaker’s licence remitted to resident magistrate); Re Ward’s Application, 4 June 1993, unreported (decision in respect of a payment from the Social Fund remitted to Social Fund Inspector); Re McAuley’s Application [1992] 4 NIJB 1 (High Court granted legal aid to the applicant because it considered that the magistrate had failed to have regard to a relevant consideration); and R (Att-Gen) v Belfast Justices [1981] NI 208 (convictions of shoplifters who had given false names remitted to the magistrates’ court so that it could, if satisfied that the offenders were the persons who were convicted, amend the convictions by substituting their real names).

³⁴⁰ Judicature (Northern Ireland) Act 1978, s 25.

³⁴¹ See Re McConnell’s Application [2000] NIJB 116, 119-20; and [8.17]-[8.18]. Section 23 reads: â€?(1) No action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby. (2) The High Court may make binding declarations of right in any action or other proceeding whether or not any consequential relief is or could be claimed therein. (3) Notwithstanding that the events on which a right depends may not have occurred, the High Court may in its discretion make a binding declaration of right if it is satisfied that—(a) the question for decision involves a point of general public importance or that it would in the circumstances be unjust or inconvenient to withhold the declaration; and (b) the interests of persons not parties to the proceedings would not be unjustly prejudiced by the declaration.’ For cases in which a point of general interest has been taken to arise notwithstanding that the concrete issues before the court had been rendered academic see, eg, Re E’s Application [2003] NIQB 39, [2004] NIQB 35, [2006] NICA 37, and [2008] UKHL 66, [2009] 1 AC 536 (challenge to the mode of policing at the â€?Holy Cross’ dispute—which had since ended—allowed because of the matters of general interest involved) and Re McBurney’s Application [2004] NIQB 37 (patient in a mental health facility who was awaiting a tribunal decision on whether to discharge her brought proceedings in respect of an earlier decision not to discharge: held that, while the earlier dispute was now academic, the corresponding application raised questions of general interest about the involvement of a lay representative in the decision-making process); and for a case in which the court concluded that there was no point of general interest see, eg, Re Nicholson’s Application [2003] NIQB 30 (application in respect of a prison adjudication dismissed as academic, as the prisoner had since been released and it was unlikely that the resolution of the issues in the application would provide guidance to the Prison Service in future cases).

³⁴² Re McConnell’s Application [2000] NIJB 116, 120.

tions concerning �public office’, which for the purposes of the section means �any substantive office of a public nature and permanent character which is held under the Crown or has been created by or under a statutory provision or royal charter’. Injunc­tions under the section may issue to prevent a person in such an office acting unlawfully or to declare the office to be vacant.

The European Communities Act 1972 and EU Law

[3.79] It is a core requirement of the EU legal order that individuals should enjoy effective protection of their EU law rights.^[599] The CJEU has, as such, long emphasised that EU law rights are to be protected through national law remedies and procedures, although it has also held that those procedures must ensure effective protection and that the protection given to EU law rights should be no less favourable than that given to national law rights.^[600] Each of the remedies available on an application for judicial review should therefore be available in the EU law context and they should be applied with a view—where appropriate—to ensuring the primacy of EU law rights.^[601] The courts have, on this basis, modified aspects of the judicial review procedure that govern access to the remedies in EU law cases, most notably the delay requirement in RCJ Order 53, rule 4(1) (see [3.30]).

[3.80] Applicants may also make a claim for damages where their EU law rights have been breached by a legislative, administrative, or judicial act that is contrary to provi­sions of the TFEU or other EU measure (for instance, where the State has failed to implement a Directive within the prescribed time-frame^[602]). The CJEU’s understanding that national remedies are to be used to protect EU law rights is, however, here at its most strained, as the CJEU has developed its own State liability doctrine that national courts must give effect to.^[603] This doctrine entails that the State may be liable in damages for the actions/inactions of any of its legislative, administrative, or judicial branches where the action/inaction constitutes a �sufficiently serious’ breach of an individual’s EU law rights.^[604] Claims for such sufficiently serious breaches of EU law rights may perhaps best be framed as actions for breach of statutory duty (the relevant statute is the European Communities Act 1972, as read with corresponding provisions of EU law).^[605]

[3.81] One further point about remedies in EU law cases concerns the question whether they can be regarded as discretionary (on which see [3.74]). Until recently, influential dicta had suggested that they could not be so regarded, as to hold otherwise would undermine the essence of the doctrine of the primacy of EU law.^[606] However, the Supreme Court has since addressed the matter in the important case of Walton v The Scottish Ministers^[607] and held that relief need not always be granted even in EU law cases. The reasoning of the Supreme Court on this point is considered in chapter eight.^[608]

The Human Rights Act 1998 and the ECHR

[3.82] Section 8(1) of the Human Rights Act 1998 provides that the remedies available on an application for judicial review are likewise to be available under the Act.^[609] Although this means that the prerogative orders, declarations, and injunctions will issue for the same reasons and purposes under the Act as they do in other proceedings, the courts’ approach under the Act should also be guided by the ECHR’s effectiveness principle. The effectiveness principle has long been central to the case law of the ECtHR, and it requires that the rights under the ECHR are protected in a way that is �real’ rather than �illusory’.^[610] While the corresponding Article 13 ECHR guarantee of the right to an effective remedy is not included in Schedule 1 to the Human Rights Act 1998—sections 7-9 of the Act are intended to provide for effective remedies^[611]—section 2 of the Human Rights Act requires the courts to �take into account’ the effectiveness principle in proceedings that raise points under the ECHR. Judicial approaches to the availability of the remedies under the Human Rights Act 1998 should therefore be conditioned as much, if not more, by the �real, not illusory’ distinction as they are by the considerations that determine when the courts will exercise their discretion to grant a remedy (on which see [3.84]-[3.91]).^[612]

[3.83] Awards of damages are also available under the Human Rights Act 1998 and they are made in the light of the ECtHR’s Article 41 ECHR case law.^[613] In contrast to damages actions against public authorities outside the Act, there is no need to establish that the action complained of is also actionable in (for instance) tort law, as the viola­tion of the right may itself suffice for damages. The leading House of Lords and Supreme Court decisions on damages under the Human Rights Act 1998 do, however,

suggest that awards of damages under the Act may be more limited than those that would be available at common law and that the courts should follow closely the case law of the ECtHR.^[614] Other decisions of the highest appellate court have also held that human rights claims should be brought under the Act rather than on the basis of modified common law causes of action.^[615]

The Prerogative Orders, Declarations, and Injunctions: Their Discretionary Nature

[3.84] The remedies available under the Judicature (Northern Ireland) Act 1978 and RCJ Order 53 are discretionary and there are five main considerations that, subject to European law requirements of effectiveness,^[616] guide the courts when exercising their discretion. These considerations—which are not exhaustive and which may elide into one another—are: (a) the utility of the remedy; (b) the conduct of the applicant; (c) delay (which embraces related considerations of good administration and the interests of third parties); (d) standing; and (e) the availability of alternative remedies.

Utility

[3.85] In some cases—most notably those where the decision has been impugned for lack of procedural fairness—the courts may conclude that an order of, for instance, certiorari would be of limited/no value. This is because the court may consider that, even if the decision were to be taken again and in accordance with the correct proce­dures, the final decision would not be different from the decision that was quashed. Rather than �beat the air’ in such circumstances,^[617] the courts may therefore simply decline to make an order.^[618] The courts may alternatively consider that the judgment itself is sufficient given the context of the case, albeit that the applicant is not given a formal remedy.^[619]

[3.86] The courts may also consider that there would limited utility in granting a remedy where a matter is, or has become, academic (for instance, where there is a material change in the facts that gave rise to a dispute or where the applicant has suffered no injustice or prejudice).^[620] Under these circumstances, the court may again decline to grant a remedy, or it may alternatively grant a declaration as to the relevant legal principles (the court’s willingness to do so will, however, depend on the context of the case and whether it gives rise to a matter of general interest^[621]). The courts may likewise consider that there would be little merit in granting a remedy if it would be contrary to the interests of �good administration’ to do so,^[622] although arguments of administrative inconvenience will not of themselves automatically lead the court to refuse relief.^[623] Section 18(5) of the Judicature (Northern Ireland) Act 1978 in similar vein provides that the court may refuse a remedy where the illegality in question is a technical irregularity that has caused the applicant no substantial wrong or a miscar­riage of justice;^[624] and the courts may in �exceptional circumstances’^[625] also decline a remedy where, for instance, there has been insufficient consultation but where the court is of the opinion that proper consultation would not have made a difference to the course of action that the applicants took and that they had thereby suffered no signifi­cant unfairness.^[626]

Conduct of Applicant

[3.87] Applicants are expected to behave with candour and integrity and the courts may refuse to grant a remedy where an applicant fails to do so (lack of candour/ integrity may also be relevant at the leave stage^[627] and in respect of standing^[628]: see

[3.18] and [3.68]). The courts have thus said that remedies should not be granted where an applicant has misled the court.^[629] On the other hand, the case law suggests that there must be some element of intent on the part of the applicant and that the courts may not censure an applicant for a simple, and largely inconsequential, oversight.^[630]

Delay

[3.88] Applications for judicial review must be made promptly and in any event within three months,^[631] and the courts have long held that a failure to observe this delay requirement may be fatal to an application^[632] (see [3.28]-[3.29]; but see too [3.30] on the position in EU law cases). The corresponding points of justification for refusing a remedy for reasons of delay are manifold and include: the interests of good administration;^[633] the need for respondents to be able effectively to defend proceedings;^[634] and the need to protect the interests of third parties who may have benefited from an original decision but who may suffer a detriment if the decision is later deemed unlaw­ful.^[635] Refusal of a remedy for reasons of delay is not, however, inevitable and the courts accept that there may be �good reason’ for a lack of promptitude.^[636] The applicant must nevertheless be able provide evidence of good reason for all periods of the delay if the application is not to be deemed out of time.^[637]

Standing

[3.89] When an applicant wishes to challenge a decision or other measure by way of judicial review, he or she must have �a sufficient interest in the matter to which the application relates’ (see [3.66]-[3.68]). The courts have long adopted a �liberal’ approach to the interpretation of this test and accepted that applicants who may not be directly affected by a measure should nevertheless be given standing so as to ensure that argu­ments about government illegality are heard in court^[638] (but note the restrictive position that prevails in cases under the Human Rights Act 1998: see [3.69]). However, the fact that, for instance, a publicly spirited citizen is recognised as having standing in a case does not mean that he or she will be granted a remedy in the event that an argument of illegality is established (see also [3.51] on an applicant’s duty of candour). Much can depend upon the context to the case and, in particular, the nature of the illegality in question (was it merely a procedural error?); whether the applicant has a private interest in the outcome of the case; the impact, if any, that the illegality may have had on other private interests; the impact that the grant of a remedy would have on third parties who may already have relied upon the impugned measure; and whether the broader public interest would best be served by granting a remedy.^[639] In the event that one or more of these considerations influences the court it may decline to grant a remedy or, alternatively, to conclude that the judgment of the court is sufficient given the competing considerations at issue.

Alternative Remedies

[3.90] Where an applicant has an alternative remedy, the remedies sought on an appli­cation for judicial review will likely be refused if the alternative remedy is effective and efficient and where the wider public interest in the overall working of the legal system would be better served by refusing the application.^[640] The courts have thus refused relief where they have considered that specially constituted tribunals would provide a more effective means to resolve a dispute or where there was a statutory appeal by way of case stated;^[641] and they have also set aside a grant of leave where an applicant had initi­ated private law proceedings in tandem with the application for judicial review.^[642] Case law has, however, also seen the courts reject arguments about alternative remedies where the nature of the alternative proceedings would not be suited to resolving a public law issue of illegality,^[643] and where the alternative remedy was one that was not immediately open to the applicant.^[644]

[3.91] A decision to make an application for judicial review when there is an effective alternative remedy may also be disposed of under RCJ Order 53, rule 9(5). This provi­sion enables the court to order that public law proceedings continue as if begun by writ where the remedy sought is a declaration, injunction, and/or damages, and where the court considers that the issues raised are more suited to private law proceedings.^[645] An order to continue will not, however, follow automatically, and much will depend on how the issues have been presented in the application for judicial review and on whether the court considers that they are suited to continuation as private law proceedings.^[646]

Appeals

[3.92] Where an application for judicial review is dismissed or granted, the applicant or respondent in a civil matter may respectively appeal the decision of the High Court to the Court of Appeal without leave^[647] (�leap-frog’ appeals to the Supreme Court are also possible in limited circumstances, although the leave of the Supreme Court is here required^[648]). Appeals are normally on one or other of the points of law at issue in the proceedings before the High Court, although new arguments are possible with the permission of the Court of Appeal, and new points of pure law may be allowed where the other party is not prejudiced.^[649] New evidence may also be admitted on an appeal where: the evidence could not with reasonable diligence have been obtained for the substantive hearing at first instance; where the evidence will probably have an important influence on the result; and where the evidence appears credible^[650] (although these con­ditions need not always be satisfied if the public interest requires that fresh evidence be admitted^[651]). An applicant may also amend their statement of case on appeal with the permission of the court to seek a different/additional remedy. Where the statement of case is amended to add the new relief the notice of motion should also be amended by making a similar addition.^[652]

[3.93] Appeals should ordinarily be initiated within six weeks of the grant or refusal of the application for judicial review.^[653] However, where an appeal is brought out of time, the Court of Appeal may exceptionally exercise its discretion to grant leave to bring an appeal. One such example is Re Es Application, where the Court of Appeal granted leave to bring an out-of-time appeal against the dismissal of an application for judicial review because �there was good reason in the public interest’ for doing so.^[654] The case in question concerned a challenge to the mode of policing of the �Holy Cross’ school dispute and it subsequently went on appeal to the House of Lords before a petition to the ECtHR was dismissed.^[655]

[3.94] It should finally be noted that appeals in criminal cases may be heard solely by the Supreme Court. Such appeals will be heard only where the High Court certifies that the proceedings raise a point of law of general importance and where the High Court or the Supreme Court grants leave to appeal^[656] (see further [3.21]). In Re C^[657] the House of Lords said that, where the High Court is faced with an application for leave to appeal by a successful party in a criminal matter, it should, if it considers it right to certify that points of law of general importance arise, refuse leave so that (what is now) the Supreme Court can consider the matter on petition.

Costs

[3.95] Costs are in the discretion of the court and orders will usually follow the event.^[658] Costs orders will, as such, ordinarily be made to an applicant who is successful on an application for judicial review, although the court may make an order of costs against the applicant where there are good grounds for doing so^[659] (an order may also take account of an applicant’s failure to prepare their papers for the case properly and/ or to observe time-limits once leave has been granted^[660]). The corollary of this position is that, where an application is dismissed or the court refuses in its discretion to grant relief, a costs order will be made for the respondent or at least not against it^[661] (where there is more than one respondent a single costs order will be made against the appli­cant). Where the issue of costs arises on the discontinuation of the application, the order will then be made against an applicant who withdraws for reasons of likelihood of failure. However, an order for the applicant will be made where the reason for discontinuance is a change of the respondent’s decision or other measure for the purpose of pre-empting the application.^[662]

[3.96] Applicants in �public interest’ cases may also apply to the court for a protective costs order that will limit the extent of any potential costs order against them.^[663] Appli­cations for such orders will ordinarily be made and resolved earlier in proceedings and will be determined in the light of the principles outlined at paragraph [3.35].