W2 - Grounds of Judicial Review 1 and 2

In the case of ex parte Witham, the court was satisfied that the court fee was lawful, as there was a clear power in the relevant statutory instrument, allowing the Lord Chancellor to increase court fees as he saw fit.

In assessing whether there has been an error of law, the courts are unlikely to intervene where the legislative wording in question is so broad and imprecise that it is capable of bearing different meanings.

The current test, applied by the courts for assessing errors of established fact, can be found in the case of Secretary of State for Education v Tameside MBC.

If a decision-maker fails to take into account a mandatory factor or takes into account a prohibitory factor, the decision will not automatically be unlawful.

A public law decision-maker will not necessarily have fettered its discretion if it has considered and applied relevant policy criteria to the detriment of the applicant.

In ex parte Collymore the court held that there had not been a fettering of discretion, because it accepted an assurance given by Warwickshire County Council that it had carefully considered the applicant’s individual application for a student grant.

The Wednesbury test is designed to assess whether a public body has wrongly decided a case on its merits.

The cases of ex parte Fielder Estates and ex parte Luff provide contrasting outcomes in claims concerning irrationality.

A public law decision that violates a constitutional principle does not fall within the ambit of Wednesbury unreasonableness, as it is not for the courts to enforce such principles through applicants bringing judicial review claims.

The courts’ approach to the intensity of review can be seen as a practical reflection of separation of powers theory in the UK.

Whilst the broader influence of proportionality in domestic law is still open to debate, it is clear that proportionality has now replaced the Wednesbury standard.

The case of R v Secretary of State for Defence ex parte Smith demonstrates that an intense degree of scrutiny in a claim involving fundamental rights will provide a court decision that is favourable to the applicant.