Remedies and the discretion of the court

This note addresses the remedies available following successful judicial review and the discretion vested in courts when deciding whether to grant them. Even where an applicant establishes a ground of review—illegality, irrationality, or procedural impropriety—relief is not automatic. The court retains a discretion to refuse a remedy, rooted in equity and public policy considerations.

Remedies divide into prerogative remedies (quashing orders, prohibiting orders, and mandatory orders) and private law remedies (declarations and injunctions). Since the Civil Procedure Rules 1998, the nomenclature has modernised: certiorari is now a quashing order; prohibition a prohibiting order; mandamus a mandatory order. The substance remains the same.

Key issues include:

• The types and functions of each remedy;
• The statutory framework under the Senior Courts Act 1981;
• The principles governing discretion, including delay, alternative remedies, conduct of the claimant, and mootness;
• The relationship between remedies and the rule of law: does wide discretion undermine legal certainty?
• Interim relief and its availability against the Crown.

This topic synthesises procedural and substantive elements encountered in earlier weeks, emphasising that judicial review is a discretionary jurisdiction throughout.

The prerogative orders originated in the supervisory jurisdiction of the Court of King's Bench over inferior courts, tribunals, and public bodies. Certiorari brought decisions before the King's Bench for scrutiny; prohibition prevented bodies from exceeding jurisdiction; mandamus compelled performance of public duties. All three derived from the Crown's residual power to ensure lawful administration.

Because these remedies were historically discretionary, equitable principles applied: maxims such as 'he who comes to equity must come with clean hands' and 'delay defeats equity' shaped judicial practice. This equitable heritage persists today, even though the remedies are no longer formally equitable but public law in character.

The availability of declarations and injunctions in public law emerged later. Prior to O'Reilly v Mackman [1983] 2 AC 237, claimants could pursue declarations via ordinary civil procedure. The procedural reforms codified in Order 53 of the Rules of the Supreme Court (now CPR Part 54) consolidated judicial review procedure and formalised the discretionary nature of all remedies.

The reforms also addressed the problem of fragmentation: different remedies with different limitation periods and procedural requirements. The modern system retains discretion but operates within a more coherent framework, balancing accessibility with the need to protect public administration from stale or unmeritorious challenges.

Understanding this evolution clarifies why remedies are not automatic and why courts balance individual rights against broader public interests when exercising discretion.

The foundational principle: unlawfulness does not guarantee relief

The leading modern authority is R v Inland Revenue Commissioners, ex parte Preston [1985] AC 835. Lord Templeman stated that 'the court may in its discretion refuse to grant relief if it considers that the grant of relief would be detrimental to good administration'. This remains the guiding principle.

Factors influencing discretion include:

1. Delay

CPR 54.5 requires claims to be brought 'promptly and in any event within three months'. Even if within the statutory period, undue delay may justify refusal: R v Criminal Injuries Compensation Board, ex parte A [1999] 2 AC 330. Lord Slynn emphasised that promptness protects administrative finality and third-party reliance.

However, delay is not determinative. In R v Dairy Produce Quota Tribunal, ex parte Caswell [1990] 2 AC 738, relief was granted despite delay where refusal would have caused injustice disproportionate to administrative inconvenience.

2. Alternative remedies

Foundation

1. Explain the difference between a quashing order and a prohibiting order. When is each remedy appropriate?

2. What factors will a court consider when deciding whether to exercise its discretion to refuse relief in judicial review, even where unlawfulness is established?

Standard

3. Alpha Council grants planning permission to Beta Ltd after a procedurally flawed consultation. Gamma, a neighbouring landowner, challenges the decision six months later. The development is halfway complete. Advise Gamma on remedies and the likelihood of success.

4. 'Section 31(2A) of the Senior Courts Act 1981 represents an unjustified erosion of procedural fairness.' Discuss.

Challenge

5. To what extent, if at all, does the availability of wide remedial discretion in judicial review conflict with the rule of law? In your answer, consider the theoretical foundations of judicial review, comparative perspectives, and recent statutory and case law developments.

Essential

• Jowell & Lester, 'Beyond Wednesbury: Substantive Principles of Administrative Law' [1987] Public Law 368

Seminal critique of remedial discretion; argues relief should follow unlawfulness automatically.

• Elliott, M, 'The Discretionary Nature of Remedies in Judicial Review' [2000] CLJ 59(3) 490

Defends principled discretion; distinguishes arbitrary from structured exercises of discretion.

• Woolf, H (Lord Woolf), 'Droit Public — English Style' [1995] Public Law 57

Judicial perspective on remedies, flexibility, and the development of public law remedies.

Deepening

• Craig, P, Administrative Law (9th edn, Macmillan 2021) ch 26

Comprehensive treatment of remedies, discretion, and s. 31 Senior Courts Act 1981.

• Wade & Forsyth, Administrative Law (11th edn, OUP 2014) ch 16

Critical analysis of inevitability test and discretionary refusal; defends intrinsic value of procedure.

• Fordham, M, Judicial Review Handbook (7th edn, Hart 2020) Part III

Practical and doctrinal guide to remedies, including CPR Part 54 and recent case law.

Comparative and Theoretical

• Harlow, C & Rawlings, R, Law and Administration (4th edn, CUP 2021) ch 15

Contextualises remedies within broader administrative law theory; includes comparative insights.

• Bingham, T (Lord Bingham), The Rule of Law (Penguin 2010) ch 5

Essential reading on access to justice and effective remedies as components of the rule of law.

• Cane, P, 'Damages in Public Law' (1999) 9 Otago Law Review 489

Comparative and theoretical examination of compensatory remedies in administrative law.

• Sunkin, M & Payne, S (eds), The Nature of the Crown: A Legal and Political Analysis (OUP 1999) ch 10

Historical and conceptual analysis of remedies against the Crown, including Factortame implications.