THE JUDICATURE (NORTHERN IRELAND) ACT 1978 AND RCJ ORDER 53

[8.10] The range of remedies available under the Judicature (Northern Ireland) Act 1978 and RCJ Order 53, rules 1 and 7 can be subdivided under three headings. These are: the prerogative orders, declarations and injunctions; damages; and remedies in respect of �the holding of public office’ and �sentences in criminal cases’.

The Prerogative Orders, Declarations, and Injunctions

Mandamus

[8.11] The order of mandamus is a coercive remedy and, where it is granted, it has the effect of requiring the decision-maker to perform a public—usually a statutory— duty. The coercive nature of the order in turn entails that a failure to comply with it may be a contempt of court (at least where the order included a time-limit for compli- ance^[1772]) and that the respondent may be punished by means of, for instance, a fine.^[1773] In earlier case law, it was thought that the individual who wished to obtain the remedy should first have to demand that the authority perform the duty and that proceedings could follow only where the authority refused to do so.^[1774] However, the so-called �demand and refusal’ requirement has featured less prominently in the modern case law, and its relevance may for that reason be doubted. On the other hand, it might also be said that an element of �demand and refusal’ inheres in the Pre-action Protocol whereby potential applicants are expected to raise the contested issues in correspondence with the respondent in an attempt to avoid litigation.^[1775]

[8.12] Grants of mandamus are rare in the case law and they tend to be issued where there is only one course of action lawfully open to the decision maker.^[1776] Where a duty entails the exercise of discretion on the part of the decision-maker the courts will therefore typically consider that an order of mandamus would be inappropriate.

Certiorari

[8.13] Certiorari serves to quash a decision or other measure and, where it is granted, the decision or other measure in respect of which it is granted is regarded as having never had legal effect^[1781] (the remedy is coercive and a failure to observe it may be regarded as a contempt of court^[1782]). The remedy has its historical origins in the context of the control of inferior courts,^[1783] but it is now potentially available in respect of any decision of a subordinate decision-maker that sounds in public law and in respect of which there is no effective alternative remedy.^[1784] Where a decision or other measure has been the subject of an order of certiorari, the decision-maker is at liberty to retake the decision, but it must do so in accordance with the judgment of the court that quashed the original determination. The requirement that it do so may even be formalised by the simultaneous grant of an order of prohibition, the effect of which would be to prevent the decision-maker acting in the manner that has already been deemed unlawful (see [8.16]).

[8.14] The remedy of certiorari is not without difficulty, precisely because it renders the decision or other measure in respect of which it is made as having been without any legal effect. For instance, in some cases the challenged decision or other measure may not be wholly unlawful and it might be doubted whether it is thereby necessary to quash the full decision; and complex questions may also arise when the remedy is sought in circumstances in which other decisions or acts have since been taken on the basis of the impugned decision. In both of these instances there can be a tension between, on the one hand, the need to uphold the rule of law^[1785] and, on the other, the need to safeguard the administration from the practical difficulties that may follow from quashing a partially lawful decision or quashing a measure that has formed the basis for a range of other decisions. In such cases, the courts have thus indicated that there may be scope to use the remedy flexibly or, more exceptionally where there is an ille­gality, to decline to grant it in favour of a declaration as to the decision or other measure’s legal validity.^[1786] Hence, where a decision is partially unlawful it has been suggested that the courts might be able to sever and quash only the offending part of the decision, albeit that their ability to do so will be contingent upon the unaffected part of the decision remaining coherent.^[1787] And in respect of a decision or other measure that has since provided the basis for a range of other decisions, a declaration might again be granted as this would have the advantage of leaving the impugned and related measures in force while at the same time bringing the need for modification to the attention of the decision-maker. Such an approach might be particularly apposite where subordinate legislation is challenged as ultra vires.^[1788]

[8.15] Section 21 of Judicature (Northern Ireland) Act 1978 and RCJ Order 53, rule 9(4) also provide for flexibility where the relief sought is certiorari and where the court is satisfied that there are grounds for quashing the decision.

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.

The power of remittal has typically been used in cases involving lower court decisions,^[1789] although there have also been cases in which decisions have been remitted to administra­tive decision-makers.^[1790] In contrast, the power to reverse or vary a decision has been used very infrequently.^[1791] This is undoubtedly because the provision empowers the High Court to substitute its decision for that of the original decision-maker and that regular such use of the provision would strain the �review, not appeal’ distinction that defines judicial review.^[1792]

Prohibition

[8.16] An order of prohibition serves to restrain a respondent from acting in a way that is, or would be, unlawful. The nature of the remedy means that it may be requested in tandem with certiorari as, to the extent that certiorari quashes an illegal decision or other measure (see [8.13]), prohibition can issue to prevent the respondent making the same decision in the future. Prohibition is, moreover, now regarded as indistinguishable from an order of mandamus and an injunction,^[1793] as all three remedies can require a respondent to do, or not to do, anything in relation to the issues before the court. The remedy is also coercive and a failure to observe it may thus be regarded as a contempt of court.^[1794]

Declaration

[8.17] A declaration is an inherently flexible remedy that takes form as a judicial statement of the legal position in a dispute and/or of the rights and obligations of the parties to the proceedings. The remedy can be at its most flexible when it is granted on its own (which possibility is expressly provided for by section 23 of the Judicature (Northern Ireland) Act 1978^[1795]), as the court can here make clear its view on a question of law without, for instance, granting an order of mandamus that would require the decision-maker to act in accordance with that view (on which see [8.11]).

[8.18] A declaration â€?must serve some useful purpose',⁷³ and the courts are generally reluctant to grant the remedy where the matter between the parties has since become academic (in the sense that it is no longer live) or where the issues raised are speculative and where the judgment of the court would be in the form of advice.⁷⁴ However, a court will not at the same time reject an application for a declaration outright in such circumstances; that is, the court may grant a declaration where the remedy may still have a wider relevance. Hence, where a dispute between the parties has since become academic the court may exceptionally grant a declaration where the issues raised are in the public interest and likely to arise again.⁷⁵ The power to issue a declaration in the converse circumstance where no issue has yet arisen and where the point at issue is thereby speculative is contained in section 23(3) of the Judicature (Northern Ireland) Act 1978, which reads:

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

⁷²Re McBride’s Application [2005] NIQB 54 (applicant who had previously been granted by the Court of Appeal a declaration that two soldiers were being unlawfully retained in the armed services sought, among other remedies, an order of mandamus to compel their discharge: held that no further remedy should be granted as the Court of Appeal had expressly considered whether to grant coercive remedies and had decided that they would be inappropriate).

⁷³Re Ds Application [2003] NIJB 49, 59, para 49, Coghlin J, cited with approval in CA ([2003] NI 295, 305, para 24). See also Re JR47S Application [2013] NIQB 7, paras 84—6, McCloskey J.

⁷⁴ See, eg, Re McCabe’s Application [2007] NICA 35 (Court of Appeal exercising its discretion not to make declarations in circumstances where a prisoner’s rights under Arts 5(4) and 6(1) ECHR had been violated but where he would nevertheless have remained in prison: declarations here would have been â€?valueless’).

⁷⁵ See R v Secretary of State for the Home Department, ex p Salem [1999] 1 AC 450, 456—7, Lord Slynn: â€?The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construc­tion arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.’ For cases in which a point of public interest has been taken to arise see, eg, Re Cs Application [2009] NICA 23 (case raising undecided and important questions about the orders open to a Family Proceedings Court); Re ESs Application [2007] NIQB 58, [2008] NI 11 (challenge to art 64 of the Children (Northern Ireland) Order 1995, SI 1995/755 (NI 2), as incompatible with Arts 6 and 8 ECHR allowed to proceed notwithstanding that the applicant was no longer affected by the provision in question: application granted); 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 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). For cases in which the court concluded that there was no wider point of public interest see, eg, Re McRandals Application for Leave [2012] NICA 22 (no broader point arising from an academic challenge to an exercise of statutory discretion by a custody officer that had been based upon an assessment of risk in relation to the applicant’s specific circumstances) and 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). For some limitations see also Re Guardian Ad Litem’s Application [2013] NIQB 28, paras 19—20, Treacy J.

The Judicature (Northern Ireland) Act 1978 and RCJ Order 53 277 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.^[1797]

Injunction

[8.19] An injunction is an order that requires a party to proceedings either to act or not to act in a particular way (it may thus be mandatory or prohibitory in form). The remedy is coercive,^[1798] may issue at any time in proceedings,^[1799] and may be interim or final. Interim injunctions are granted in accordance with the �balance of convenience’ test that originated in private law^[1800] but which is applied in a modified form in public law proceedings.^[1801] Final injunctions, in turn, issue only where the grounds for review have been made out and where the court considers in its discretion that the remedy should be granted. Where granted, a final injunction is definitive of the rights of the parties and a subsequent failure to act in accordance with it may be regarded as a contempt of court.^[1802] This contempt principle also applies where the respondent is a Minister of the Crown^[1803] (see [8.05]).

[8.20] Because injunctions may be mandatory or prohibitory they are now regarded as essentially indistinguishable from mandamus and prohibition.^[1804] However, it has also been suggested that the private law origins of the remedy render it ill suited to some circumstances and that one of the other remedies should be sought. The example given is where an individual wishes to compel a public authority to carry out its statutory duties but where the legislation in question cannot be interpreted as giving the indi­vidual a private right of action for a breach of the duty. Under those circumstances, it has been suggested that the applicant should instead seek an order of mandamus.^[1805]

Damages

[8.21] Damages claims are infrequent in applications for judicial review primarily because of the rule that an ultra vires act per se does not give rise to liability^[1806] (although on the position in cases governed by EU law and under the Human Rights Act 1998 see [8.37]-[8.39] and [8.44]-[8.46], respectively). Damages, as per section 20 of the Judicature (Northern Ireland) Act 1978 and RCJ Order 53, rule 7, are instead available only where the court is satisfied that the illegality would also have been actionable in private law^[1807] (most usually in tort). Although specific statutes may at the same time

make provision for damages in the event of a wrong⁸⁷—it is also possible to receive ex gratia payments of compensation where the Commissioner for Complaints has made a finding of maladministration⁸⁸—damages remain as an exceptional remedy in the public law context. Their exceptional nature is also a consequence of a highly restrictive body of case law on liability in respect of the performance of statutory duties and/or the exercise of statutory powers.⁸⁹

[8.22] The principal torts that may be used to found a claim for damages in respect of the exercise of statutory powers and/or the performance of statutory duties are negligence, breach of statutory duty, misfeasance in public office, and false imprison­ment.⁹⁰ Damages claims may also be made under the European Communities Act 1972 and the Human Rights Act 1998, where the courts are required to give effect to the damages case law of the CJEU and ECtHR, respectively (on which see [8.37]-[8.39] and [8.44]-[8.46]).

Negligence

[8.23] A claim in negligence requires the plaintiff (applicant) to establish that the defendant (respondent) owed him or her a common law duty of care; that the defendant breached that duty of care; and that the breach of the duty of care caused the loss complained of.⁹¹ In the public law context, claims in negligence may arise when the plaintiff claims to have suffered loss from the manner in which a particular public service has, or has not, been provided to him or her. However, while there are a number of well-established scenarios that can give rise to public authority liability in negligence (the obvious example is medical negligence⁹²), the courts have been more generally reluctant to impose liability on public service providers in novel situations. In broad terms, this has been justified with reference to the valid public policy concern that increased liability would strain already limited resources in a way that would diminish the overall quality of the service provided to wider society.⁹³ But there have been other

or in addition to any other relief, award damages to an applicant, if: (a) he has, in accordance with rules of court, joined with his application a claim for damages arising from any matter to which the application relates; and (b) the court is satisfied that, if such 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 such damages.' RCJ Ord 53, r 7 is in substantially the same terms.

⁸⁷ Eg, Criminal Justice Act 1988, s 133, considered in R (Adams) v Secretary of State for Justice; Re McDermott and McCartney [2011] UKSC 18, [2012] 1 AC 48. See also, eg, Re Fitzpatrick and Shiels’ Applica­tion [2013] NICA 66; Re Magee’s Application [2013] NIQB 59; and Re Walsh’s Application [2012] NIQB 55.

⁸⁸ See M Amos, â€?The Parliamentary Commissioner for Administration, redress and damages for wrongful administrative action' (2000) PL 21; and the Commissioner for Complaints (Northern Ireland) Order 1996, SI 1996/1297 (N17).

⁸⁹ See G Anthony, â€?The Negligence Liability of Public Authorities: Was the Old Law the Right Law?' (2006) 57 NILQ 409, and G Anthony, â€?Positive Obligations and Policing in the House of Lords' [2009] European Human Rights Law Review 538.

⁹⁰ For consideration of other causes of action including, eg nuisance, see W Wade and CF Forsyth, Admin­istrative Law, 10th edn (Oxford, Oxford University Press, 2009) ch 20. And for the application of ordinary tort principles in proceedings where no issue arose in relation to statutory powers or duties see Ward v Chief Constable of the RUC [2000] NI 543 (police sued in trespass to the person for use of excessive force).

⁹¹ J Murphy and C Witting, Street on Torts, 13th edn (Oxford, Oxford University Press, 2012) chs 2-5.

⁹² Chester v Ashfar [2004] UKHL 41, [2005] 1 AC 134.

⁹³ See in respect of policing, eg, Hill v Chief Constable of West Yorkshire [1989] AC 53, 63, Lord Keith; Brooks v Metropolitan Police Commissioner [2005] UKHL 24, [2005] 2 All ER 489, 504, para 30, Lord Steyn; and Metcalfe v Chief Constable of the RUC [1995] NI 446. more specific doctrinal considerations too, particularly where the provision of the public service entails the exercise of statutory discretion. Under these circumstances, the courts have emphasised that policy choices are â€?non-justiciable’ and that there can therefore be no liability in respect of such decisions.^[1808] In the event that the litigant is unable to separate â€?policy’ choices from â€?other’ choices that may be actionable,^[1809] there can be no cause of action.

[8.24] The restrictive case law of the courts has tended to centre on the duty of care element.^[1810] At common law, a duty of care is owed where: (1) the defendant should foresee that his or her act or omission will harm the plaintiff; (2) there is a sufficient relationship of proximity between the parties; and (3) it is fair, just, and reasonable to impose a duty of care.^[1811] Although more recent case law has established that duties of care have been owed in some novel situations—for instance, to children with special educational needs^[1812] and children who have been abused while in the care of local authorities^[1813]—the greater trend within the case law has been to hold that public service providers do not owe duties of care outside of established duty of care situations. In procedural terms, this has often led to private law claims for damages being struck out at a preliminary stage for the reason that they disclose no reasonable cause of action.^[1814] Indeed, while the courts were temporarily less inclined to strike out proceedings because of a concern about Article 6 ECHR rights of access to a court,^[1815] it is now accepted that Article 6 ECHR is not engaged by the question of whether a duty of care is owed to an individual in any given case^[1816] (albeit that the striking out of an action can still be challenged under Article 13 ECHR in cases heard before the ECtHR).^[1817] The courts, in consequence, have since held that, among other things, negligence actions against the police in respect of the performance of a range of their duties had correctly been struck out;^[1818] that proceedings against a highway authority that ended in a finding of liability in the lower courts should have been struck out rather than being allowed to proceed to trial;^[1819] and that no duty of care had been owed by a housing authority that had not informed one tenant that it had had a meeting with another tenant who had been engaged in anti-social behaviour and subsequently went on to kill the first tenant.^[1820]

[8.25] The restrictive approach can also be apparent in cases where a duty of care is owed, as the courts may alternatively limit liability with reference to the breach element. The starting point in breach cases is the question of what is reasonable in all the circumstances,^[1821] and it has been suggested that the courts should display caution when considering whether a public authority has acted reasonably when exercising its statu­tory discretion. Although the courts are at the same time mindful of the need to avoid resolving tort law issues on the basis of public law precepts,^[1822] it has been said that there will be �room for differences of opinion as to the best course to adopt in a difficult field and that the discretion is to be exercised by the authority... and not by the court’.^[1823] Such language is, in turn, evocative of that of Wednesbury unreasonableness,^[1824] and a court that is considering whether a public authority has fallen beneath the objec­tive standard of care must thus �be satisfied that the conduct complained of went beyond mere errors of judgment in the exercise of discretion and constituted conduct which can be regarded as negligent’.^[1825]

Breach of Statutory Duty

[8.26] An action for breach of statutory duty is similar in structure to an action in negligence, although the duty here originates from the statute rather than the common law (the tort again requires breach and causation; whether fault is a pre-requisite for breach is a matter for interpretation of the statute).^[1826] While it will in some instances be clear from the literal terms of a statute that a public authority owes a duty to an individual^[1827] (the dispute would then be resolved with reference to the breach and causa­tion elements), the question whether a statutory duty is actionable can become more complex where claims are made in respect of the performance or non-performance of �target duties’ (on which see [8.12]). Here, the courts have typically held that the nature of the duties is such that they are not owed to any one individual but rather to wider society and that they can, for that reason, sound only in public law.^[1828] Individuals, in

The Judicature (Northern Ireland) Act 1978 and RCJ Order 53 281 the result, are not able to make damages claims in respect of such duties and can chal­lenge decisions or other measures only with reference to the public law grounds for review.¹¹⁵

[8.27] The approach of the courts may be equally restrictive even where a duty is owed to an individual. For instance, in Cullen v Chief Constable of the RUC¹¹⁶ the plaintiff had been arrested on suspicion of involvement with terrorism but he claimed that he had been denied access to his lawyer in breach of the duty to ensure access under section 15 of the Northern Ireland (Emergency Provisions) Act 1987. While Lords Bingham and Steyn, dissenting, considered that the breach should have been actionable per se because the right of access is a constitutional right at common law, the majority of the House of Lords disagreed. Reaffirming the requirement that all the elements of the tort must be made out, their Lordships considered that damages should not be awarded, both because there had been no concrete loss to the plaintiff and because other remedies had been available at the time of the denial (viz judicial review proceed­ings). By adopting this approach, the House of Lords thus appeared to prevent the emergence of common law constitutional torts that would allow damages to be awarded even without proof of harm (see too [8.29]).

Misfeasance in Public Office

[8.28] The tort of misfeasance in public office offers a remedy to individuals who have suffered loss as a result of the abuse of power by a public officer¹¹⁷ (the vicarious liability of the employer authority will depend on whether the actions or inactions of the officer were unauthorised and so unconnected with the officer’s authorised duties as to be outside those duties¹¹⁸). The tort is actionable where: (a) the public officer has, with malice, acted or failed to act in a way that has the object of injuring the plaintiff; or (b) the public officer has intentionally done or omitted to do something that he or she did not have the power to do or omit to do and which he or she knew would probably injure the plaintiff.¹¹⁹ The case law has also established that bad faith inheres in both (a) and (b), albeit that the two limbs are to be regarded as alternative rather than cumulative elements of the cause of action.¹²⁰ Bad faith is thus present in element (a) in the sense that a public power will here have been exercised for an improper purpose and with the specific intention of injuring the plaintiff (so-called â€?targeted malice’¹²¹).

[1998] AC 188 (no private law duty owed to the homeless under the Housing Act 1985); Maye v Craigavon Borough Council [1998] NI 103 (art 7(1) of the Litter (Northern Ireland) Order 1994, SI 1994/1896) (NI 10), which imposes a duty to keep roads free from litter, not imposed for the protection of a limited class of the public but rather for the benefit of the public at large); and Metcalfe v Chief Constable of the RUC [1995] NI 446 (exercise of Director of Public Prosecution’s powers under art 5(1) of the Prosecution of Offences (NI) Order 1972, SI 1972/538 (NI 1), could not give rise to a claim for damages because of �compelling considerations rooted in the welfare of the whole community’).

¹¹⁵ O’Rourke v Camden LBC [1998] AC 188.

¹¹⁶ [2003] UKHL 39, [2003] NI 375.

¹¹⁷ Watkins v Home Office [2006] UKHL 17, [2006] 2 AC 395 (unlawful interference with a prisoner’s mail, action failing).

¹¹⁸ Racz v Home Office [1994] 2 AC 45.

¹¹⁹ Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] QB 716.

¹²⁰ Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1; on bad faith see [5.51]-[5.52].

¹²¹ Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1, 191, Lord Steyn.

In respect of element (b), bad faith will be present where the act or omission was done or made intentionally by the officer in the knowledge that it was beyond his or her powers and that it would probably cause the plaintiff to suffer injury (an absence of an honest belief that the act or omission was lawful will here be sufficient for the requirement of bad faith, which can be demonstrated by knowledge of probable loss on the part of the public officer). Bad faith will alternatively be present for the purposes of (b) where the officer was aware that there was a serious risk that the plaintiff would suffer loss due to an act or omission which the officer knew to be unlawful but where the officer wilfully chose to disregard that risk. Under those circumstances, the requisite bad faith is demonstrated by the officer’s recklessness in disregarding the risk.^[1829]

[8.29] Claims for misfeasance in public office are rare in the case law, largely because of the difficulties in making out an argument of bad faith.^[1830] Moreover, while the case law has emphasised that the out-workings of the tort should not be constrained by rigid distinctions,^[1831] it has at the same time held that an action for misfeasance in public office cannot be sustained where a public officer has acted in bad faith but where the individual has suffered no special damage. In Watkins v Home Office^[1832] the House of Lords thus held that a prisoner could not succeed under the tort as he had suffered no special damage when prison guards had interfered with his correspondence with his lawyer. Although the Court of Appeal in England and Wales had held that bad faith per se was here sufficient as the officers had interfered with the prisoner’s common law constitutional right of access to a court,^[1833] the House of Lords held that that proof of special damage had been expressly or implicitly central to the cause of action for over 300 years.^[1834] Such long-standing rules, it was held, should be disturbed only where there are compelling reasons to do so, and no such reasons were present in the instant case. The House of Lords also held that a reinvention of the tort in the light of common law constitutional rights was unnecessary as plaintiffs would in the future be able to make a claim for damages under the Human Rights Act 1998 (on which see [8.44]-[8.46]).

False Imprisonment

[8.30] False imprisonment is perhaps the tort that is most commonly pleaded against public bodies.^[1835] The tort, which will often be pleaded alongside a breach of Article 5 ECHR,^[1836] is committed when there is a complete restriction of a person’s liberty in circumstances where the public authority has acted without lawful excuse or authori- zation.^[1837] The words in italics are key to the question whether a cause of action will be sustained, as there will be no tort if, most obviously, an individual is imprisoned after having been convicted of a criminal offence.^[1838] However, if the individual’s liberty is restricted without lawful excuse, he or she can sue for damages even without proof of special loss (such as financial disadvantage). This is because the liberty of the indi­vidual is regarded as so important that any interference with it will not be tolerated. The cause of action is therefore actionable per se, albeit that awards of damages may be minimal given the circumstances that resulted in deprivation of liberty.^[1839]

The �Holding of Public Office’ and �Sentences in Criminal Cases’

[8.31] The Judicature (Northern Ireland) Act 1978 finally provides for discrete remedies in respect of, first, persons acting in a public office without being entitled to do so and, second, sentences passed by a court that had no power to pass the sentence. In terms of public office, the relevant provision is section 24, subsection 1 of which provides:

Where a person is acting or has acted in an office to which this section applies without being entitled so to act, the High Court, on an application under this section, may (a) grant an injunction restraining him from so acting; (b) declare the office to be vacant.

Subsection 2 then provides that the �section applies to 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’. RCJ Order 53, rule 11 relatedly provides that the Order 53 procedure is to be used where an individual seeks the remedy.

[8.32] The relevant provision in respect of a sentence passed by a court that had no power to pass the sentence is section 25. The section, which is not dissimilar in its effect to section 21 of the Judicature (Northern Ireland) Act 1978 (see [8.15]), reads: (1) Where a person has been sentenced for an offence by a magistrates’ court or, on appeal, by a county court and an application is made to the High Court for an order of certiorari to remove the proceedings of the magistrates’ court or the county court into the High Court, and the High Court determines that the magistrates’ court or county court had no power to pass the sentence, the High Court may, instead of quashing the conviction, amend it by substituting for the sentence passed any sentence which the magistrates’ court had power to impose.

Subsection (2) in turn provides that any substituted sentence runs from the time when it would have begun to run if passed in the original proceedings, unless the High Court directs otherwise.

THE EUROPEAN COMMUNITIES ACT 1972

[8.33] Section 3 of the European Communities Act 1972 requires that UK courts give effect to the remedies case law of the CJEU in cases that come under the Act^[1840] (the relevant principles and practices may thereafter â€?spill over’ into the domestic law of remedies^[1841]: and see [8.35]-[8.36]). That body of case law, which has been developed on the basis of the supremacy^[1842] and direct effect^[1843] doctrines and of Article 4(3) TEU,^[1844] imposes significant remedial obligations on national courts hearing disputes involving EU law rights. Although the CJEU has historically emphasised that EU law rights are to be protected through national procedures and practices (subject to the requirement that the protection is effective and equivalent to that given to rights under national law^[1845]), it has long since also introduced a number of specific remedies requirements that have sought to heighten the standards of protection of individuals throughout of the EU.^[1846] The case law has thus seen the CJEU develop more fully its understanding of what â€?effective protection’ of the individual requires,¹⁴⁰ with the corresponding objec­tive being the attainment of more uniform protection throughout the EU irrespective of variations in national legal practice.¹⁴¹ The emergence of an enhanced remedies regime at the national level is at the same time understood to have the potential to facilitate a fuller process of the enforcement of EU law in the sense that enforcement is no longer a matter primarily for the European Commission acting through the Article 258 TFEU enforcement procedure.¹⁴²

[8.34] There are three principal points about EU law’s remedies regime and the remedies available on an application for judicial review.¹⁴³ These are concerned with: the availability of injunctions against Ministers of the Crown; the availability of damages; and the question whether remedies are to be regarded as discretionary in the EU law context.

Injunctions and Ministers of the Crown

[8.35] The availability of an injunction as a remedy in proceedings involving a Minister of the Crown as respondent has its origins in the EU law requirement of the effective protection of the individual. The point famously came to the fore in the Factortame case¹⁴⁴ in which the CJEU held that national rules of procedure that militate against the effective protection of EU law rights should cede to the prior force of EU law and the corresponding need for such protection.¹⁴⁵ The case had arisen when a group of Spanish fishing boat operators sought an injunction to prevent the Secretary of State for Transport enforcing the terms of the Merchant Shipping Act 1988, which the opera­tors challenged as contrary to the nationality, establishment, and capital provisions of, what was then, the EC Treaty.¹⁴⁶ An Article 234 EC (now 267 TFEU) reference to the

protection to EU law rights); Case C-312/93, Peterbroeck van Campenhout SCS & CIE v Belgium [1995] ECR I-4599 (national courts and tribunals are obliged to introduce into proceedings relevant provisions of EU law in the absence of either party to those proceedings doing so; cf Cases C-430—431/93, Van Schijndel & Van Veen v Stichting Pensioenfonds voor Fysiotherapen [1995] ECR I-4705); Case C-208/90, Emmott v Minister for Social Welfare [1991] ECR I-469 (national courts and tribunals are obliged to ensure that the operation of national time-limits does not prejudice the effective protection of EU law rights; cf Case C-338/91, Steenhorst-Neerings v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambrachten en Huisvrouwen [1993] ECR I-5475); and Case 199/82, Amminstrazione delle Finanze dello Stato v San Giorgio SpA [1983] ECR 3595 (national courts and tribunals are obliged to provide for recovery of charges which are levied contrary to EU law).

¹⁴⁰ Eg, Case C-406/08, Uniplex (UK) Ltd v NHS Business Services Authority [2010] 2 CMLR 47; Case C-213/89, R v Secretary of State for Transport, ex p Factortame [1990] ECR I-2433; Case 326/88, Anklagemyn- digheden v Hansen & Sons I/S [1990] ECR I-2911; and Case C271/91, Marshall v Southampton and South West Hampshire Area Health Authority (No 2) [1993] ECR I-4367. And see, in the NI courts, Johnston v Chief Constable of the RUC [1998] NI 188.

¹⁴¹ See generally P Craig and G de Burca, EU Law: Text, Cases and Materials, 5th edn (Oxford, Oxford University Press, 2011) ch 8.

¹⁴² On which see P Craig and G de Burca, EU Law: Text, Cases and Materials, 5th edn (Oxford, Oxford University Press, 2011) ch 12.

¹⁴³ On EU law’s related obligations see [1.17]; [3.47]-[3.48] and [3.79]-[3.81]; and [5.09]-[5.10]

¹⁴⁴ R v Secretary of State for Transport, ex p Factortame Ltd [1991] 1 AC 603.

¹⁴⁵ Case C-213/89, R v Secretary of State for Transport, ex p Factortame [1990] ECR I-2433.

¹⁴⁶ Viz, ex Art 7 EC (now repealed); Arts 52 and 58 EC (now Arts 49 and 54 TFEU); and Art 221 EC (now Art 55 TFEU).

CJEU had in turn been made because the House of Lords considered that it could not grant the injunction because of the domestic rule that prevents the grant of injunctions against Ministers of the Crown in civil proceedings (viz section 21 of the Crown Pro­ceedings Act 1947). However, the House of Lords subsequently granted the injunction in the light of the CJEU’s ruling on the need for effective protection of the individual, with the result that the Act of 1988 was, in effect, disapplied. This was an outcome that was widely understood to have contradicted the UK constitution’s fundamental precepts of parliamentary sovereignty and implied repeal, as the European Communi­ties Act 1972 had enjoyed priority over a later domestic statute.^[1847]

[8.36] The availability of the remedy in purely domestic proceedings was subsequently established in the House of Lords judgment in M v Home Office,^[1848] which is the seminal instance of EU law �spilling over’ into domestic law.^[1849] Thus, while the judgment of the House in M was centrally informed by its finding that section 21 of the Civil Proceed­ings Act 1947 did not apply to judicial review proceedings because those proceedings are not civil proceedings (see [8.05]), the House of Lords also noted that there was a need to ensure parity of protection for the rights of individuals irrespective of whether the rights have their origins in domestic law or EU law. Factortame had therefore given rise to an �unhappy situation’^[1850] that M had resolved.

Damages

[8.37] It is a central feature of the CJEU’s remedies regime that an individual may, as a matter of EU law, seek an award of damages in a national court where the State acts or fails to act in breach of his or her EU law rights.^[1851] This doctrine of �State liability’ was originally of application only where the individual suffered loss as a result of a State’s failure to implement a Directive in domestic law,^[1852] but it has since been developed to cover potentially any breach of an individual’s rights by any of the branches of the State.^[1853] Case law has thus established that a State may be liable at the behest of an individual where its legislature has enacted legislation that is contrary to EU law rights,^[1854] where it has failed to repeal legislation that is contrary to EU law,^[1855] or (as per the origins of the doctrine) where it has failed to introduce legislation to implement a Directive.^[1856] The case law has likewise established that liability may follow where administrative discretion is exercised contrary to EU law rights^[1857] or where those rights are breached by a judicial act or omission.^[1858]

[8.38] The corresponding EU law test for liability has three elements, namely: (1) is there an EU law provision that confers enforceable rights upon individuals? (2) has there been a �sufficiently serious’ breach of the provision by the State? and (3) has the indi­vidual suffered loss as a direct result of the breach?^[1859] Of these elements the most important in many cases is that concerned with �sufficient seriousness’, as the CJEU has emphasised that the question of liability must be resolved with reference to the context to any State action or inaction. Hence, where a Member State authority has a wide discretion in a particular area, for example the national legislature introducing national legislation, liability will rest only where the State �manifestly and gravely dis­regards the limits of its discretion’^[1860] (�manifest disregard’ is also the threshold for liability in the context of judicial acts and omissions^[1861]). By contrast, where a Member State has only very limited or no discretion, for example making an administrative decision in a policy area closely regulated by EU law, the �mere infringement’ of an EU provision may be enough to occasion liability.^[1862] Cases between these two examples, for instance where a national legislature is introducing legislation to give effect to an EU Directive,^[1863] must then be resolved with reference to the CJEU’s suggested list of criteria for identifying a sufficiently serious breach: was the EU law provision that was breached clear? Was the breach/damage intentional? Was any error of law on the part of the State excusable? Had the Member State been adopting or retaining practices contrary to EU law?^[1864]

[8.39] Where an individual makes a claim for damages under the State liability doctrine, it is for the national court to decide which domestic cause of action is best suited to facilitating the claim. This is broadly consistent with the CJEU’s historic emphasis on the role of national procedures and remedies (see [8.33]), albeit that the CJEU has said that the tort of misfeasance in public office would not lend itself to the effective protection of the individual^[1865] (on misfeasance in public office see [8.28]-[8.29]). The corresponding approach of the UK courts appears to favour an action for breach of statutory duty, with the duty being taken to arise from the European Communities Act 1972 as read with the relevant provisions of EU law.^[1866] However, there is also academic authority to doubt whether it is even necessary to fit the elements of the State liability doctrine within a pre-existing domestic tort. The alternative suggestion is that claims could be made within the framework of a free-standing �Euro-tort’ that simply transposes the case law of the CJEU directly into national law.^[1867]

Discretionary Remedies—The Walton Case

[8.40] The final point about remedies in EU law cases concerns the question whether they can be regarded as discretionary (on which see [8.08]-[8.09]).^[1868] 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.^[1869] However, the Supreme Court has since addressed the matter in the important case of Walton v The Scottish Ministers^[1870] and held that relief need not always be granted even in EU law cases. The case involved a (statutory) challenge to the lawfulness of ministerial approval for the construction of a road network outside Aberdeen, which was argued to have been granted in breach of consultation requirements imposed by EU law (spe­cifically by the Strategic Environmental Assessment Directive).^[1871] When the case came before the Supreme Court the main issues on appeal were: (i) whether the applicant had standing to bring the proceedings; (ii) whether the SEA Directive was of application in the case; and (iii) whether the applicant should be denied a remedy even if the SEA Directive did apply. Holding that the applicant did have standing but that the SEA Directive was not engaged on the facts, the Supreme Court made clear that remedies need not always be granted in EU law cases and that the courts can refuse relief where, for instance, an applicant has suffered no substantial prejudice as a result of a proce­dural error but where the broader public interest or some private interest would be disadvantaged by the grant of a remedy. In that circumstance, the Supreme Court was of the view that a remedy may be withheld in the discretion of the court and that this would be wholly consistent with EU law’s emphasis on national procedural autonomy and the related principle of the �effective’ protection of EU law rights. As Lord Carnwath expressed the point:

Where the court is satisfied that the applicant has been able in practice to enjoy the rights conferred by the European legislation, and where a procedural challenge would fail under domestic law because the breach has caused no substantial prejudice, I see nothing in principle or authority to require the courts to adopt a different approach merely because the procedural requirement arises from a European rather than a domestic source.^[1872]