Refusing JR relief where the outcome would not be substantially different (SCA 1981 s.31(2A))
Ashbury District Council decided to close a public library in England. Ines Carvalho, a regular user, brought a claim for judicial review, arguing that the council failed to carry out the consultation its own published policy required. At the substantive hearing the High Court accepts that the failure to consult was unlawful. However, on the evidence it concludes that it is highly likely that the outcome for Ines would not have been substantially different if the council had consulted properly. No reasons of exceptional public interest arise.
Which of the following best describes the court's position on relief?
Choose one answer to see the reasoning.
Worked answer
Correct answer A: The court must refuse relief, and may not award damages, because it is highly likely that the outcome would not have been substantially different.
THE RULE TO REMEMBER
The High Court must refuse judicial review relief if it is highly likely the outcome would not have been substantially different, unless exceptional public interest justifies granting it.
Refusing JR relief where the outcome would not be substantially different (SCA 1981 s.31(2A))
Section 31(2A) of the Senior Courts Act 1981 provides that the High Court must refuse to grant relief on an application for judicial review, and may not make an award of damages under s.31(4), if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. The court may disregard this only if it considers it appropriate to do so for reasons of exceptional public interest, and must then certify that condition (s.31(2B)-(2C)). A parallel rule applies at the permission stage (s.31(3C)-(3F)), but the test also applies when the court decides on relief at the full hearing. Here the court has found that the threshold is met and there is no exceptional public interest. Although the procedural failure was unlawful, the court must refuse relief.
Why B is wrong: Section 31(2A) requires relief to be refused even where unlawfulness is established, if the threshold is met.
Why C is wrong: Section 31(2A) applies to the grant of relief at the substantive hearing; ss.31(3C)-(3F) make similar provision for the permission stage.
Why D is wrong: Section 31(2A) is mandatory ('must refuse'); it is not a broad discretion, subject only to the exceptional public interest exception.
Why E is wrong: Section 31(2A)(b) also prevents an award of damages under s.31(4) where the threshold is met.
A little more practice done.
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