Remedies and the discretion of the court

Even where an applicant establishes a ground of review—illegality, irrationality, or procedural impropriety—relief is not automatic. The court retains discretion to refuse a remedy, rooted in equity and public policy considerations. This foundational principle, articulated in R v Inland Revenue Commissioners, ex parte Preston [1985] AC 835, permits courts to refuse relief where it would be 'detrimental to good administration'. The rationale balances individual rights against broader public interests: quashing decisions may unsettle established rights, prejudice third parties who relied on the decision, or impose disproportionate administrative burdens. This discretion extends to all remedies—quashing orders, prohibiting orders, mandatory orders, declarations, and injunctions—and operates at both permission and substantive stages. Section 31 of the Senior Courts Act 1981 provides the statutory framework, with s.31(6) codifying discretion for undue delay and s.31(2A) mandating refusal where the outcome would have been 'highly likely' the same absent the unlawfulness.

R v Inland Revenue Commissioners, ex parte Preston [1985] AC 835: Lord Templeman established that courts may refuse relief if granting it would be 'detrimental to good administration'. Balances legitimate expectations against public interest in efficient tax collection.

R v Criminal Injuries Compensation Board, ex parte A [1999] 2 AC 330: Lord Slynn confirmed delay beyond three months or lack of promptness within it justifies refusal under s.31(6). Protects administrative finality and third-party reliance.

R v Monopolies and Mergers Commission, ex parte Argyll Group plc [1986] 1 WLR 763: Court refused relief despite procedural unfairness because decision implemented and third parties relied on it. Demonstrates weight given to legal certainty and commercial stability.

R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1991] 1 AC 603: House of Lords held domestic courts can grant interim relief against the Crown to protect EU law rights. Overturned traditional Crown immunity from injunctions.

R (Goring-on-Thames Parish Council) v South Oxfordshire District Council [2018] EWCA Civ 860: Clarified s.31(2A) requires 'highly likely' counterfactual assessment with burden on defendant. Courts must predict with high confidence that outcome would have been same.

Courts apply a structured analysis when exercising remedial discretion. First, establish whether unlawfulness proven on judicial review grounds. Second, consider discretionary factors: (1) Delay—claims must be brought promptly and within three months (CPR 54.5); even within time, undue delay may bar relief if prejudicial; (2) Alternative remedies—particularly statutory appeals must be pursued unless ineffective (ex parte Goldstraw); (3) Claimant's conduct—acquiescence, bad faith, or misleading the public body weighs against relief; (4) Third-party prejudice—consider impact on those who relied on decision; (5) Futility—whether same outcome inevitable (Simplex, now s.31(2A)). For interim relief, apply modified American Cyanamid test: serious issue, balance of convenience, inadequacy of damages. Courts tailor remedies to context: quashing for past decisions, prohibiting/injunctions for future conduct, declarations for legal clarification, mandatory orders for compelling duties.

Students frequently assume relief follows automatically from proving unlawfulness—always analyse discretionary factors. Confusing permission-stage discretion (arguable case threshold) with substantive remedial discretion leads to muddled analysis. Many overstate s.31(2A)'s effect: 'highly likely' requires high confidence, not certainty, with burden on defendant. Treating all remedies as interchangeable ignores their distinct functions—match remedy to factual context. Forgetting judicial review awards no standalone damages catches many; separate cause of action required (tort, contract, HRA s.8). In essays on rule of law tensions, failing to engage with academic debate (Jowell/Lester versus Craig/Elliott) yields descriptive, low-scoring answers.