Examiners’ reports 2019

Examiners’ reports 2019

LA2008 Administrative law – Zone B

Introduction
The Administrative law paper was in the same format as it has been for many
years. There was a requirement to answer four questions from a choice of eight.
There are always seven essay questions and one problem question and students
have a free choice from all of the questions. It was notable that quite a number of
candidates proved to be prepared to answer only three questions and, as such,
offered either no answer or only a token answer to the fourth question. This was a
shame, as this served to deny a number of students who had done well on the other
three questions a strong overall mark.
It was also evident that some students had issues with timing, in the sense that it
was often the case that the first two questions had responses of many pages and it
was then evident that candidates were pressed for time and wrote shorter and
much more rushed answers, or sometimes just bullet points for either one or two of
the answers. It is evident that these kind of answers had a negative impact on the
overall marks for these papers, as even if the first two answers were first class or at
the level of 2:1, two very short or bullet-point answers then served to reduce the
overall mark significantly. It would be better for candidates to try to spend 45
minutes on each question and offer a solid answer to each of the questions. In
some cases it was evident that candidates had included a great deal of irrelevant
material, or material that was poorly focused on the question in longer answers –
sometimes it might be better to write less material that is more concise and focused
than a lengthier essay lacking focus.
It was clear that a large number of the papers contained essays that had been
‘learned’. In particular, quite a number of responses to the questions on the
ombudsman, the procedural divide in O’Reilly v Mackman and standing had this
flavour – we read many similar essays on these issues. The difficulty with such
‘learned’ answers is that, although they often contain material that is broadly
relevant to the question, they tend to lack focus on the specific question that has
been asked. It was also notable that a number of these ‘learned’ answers were very
dated, limiting the overall marks that could be achieved.
We noted that more students than in previous years tackled the problem question
and there were a number of solid answers. In general, students who are hoping to
do well on a problem question in administrative law need to remember the
specificity of the subject and consider procedural issues (pre-action protocol,
standing, time limits, etc.) in addition to the substantive legal issues. It is also
important for those who wish to do well to know an amount of relevant case law and
to try to use the IRAC (issue, rule, analysis and conclusion) method in an effective
way to answer the question and offer clear advice to the relevant parties.

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Comments on specific questions
Question 1
What requirements does the audi alteram partem principle impose on public
authorities and why have the courts imposed these requirements?
General remarks
This question was reasonably popular and elicited a range of answers. Some were
very strong, demonstrating an understanding of both the reasons why the courts
impose the principles inherent in the audi alteram partem principle and the case law
that creates and imposes the individual rules. Others were less impressive, reliant
primarily on limited case law and demonstrating a lack of appreciation of the
underlying principles and reasons why the requirements of the audi alteram partem
principle are imposed. The question required two things of candidates – a
consideration of the reasons why the courts impose the principles inherent in audi
alteram partem and the legal rules which support these principles. In order to offer a
strong answer to this question, with appropriate analysis and evaluation, it was
important for students to have some insight into the literature on the issue, as well
as the relevant case law. There is a relatively well-developed literature on this issue
and there is a great deal of judicial treatment of the policy reasons for imposing the
rules on procedural fairness and the specific requirements of the law. As such,
there was ample material to allow students to address the question.
Law cases, reports and other references the examiners would expect you to use
The judgment of Lord Reed in Osborn, the discussion in Endicott’s textbook, the
article by Loughlin and a number of other sources referred to in the module guide
could help students to think about the reasons why the requirements in the audi
alteram partem principle are imposed by the courts. The most obvious starting point
would have been the judgment of Lord Reed, which sets out with some clarity the
reasons why procedural requirements are imposed.
In terms of the case law on the requirements of the audi alteram partem principle,
students could have explored the four broad areas that are generally accepted to be
the broad content of the audi alteram partem principle – the right to known the
nature of the issues/allegations (Benaim and Khaida, Bank Mellat or Bourgass
(King)), the potential to be heard/have an oral hearing (Cooper, Lloyd, Thompson,
Smith and West, Osborn), the potential right to legal representation (Enderby Town,
Hone and McCartan, Carroll, Ezeh) and the potential to cross-examine witnesses
(Bushell, Wilkinson). Essays could also have mentioned and considered the duty to
give reasons (Doody, etc.) as such law is inherently linked to a fair hearing, as Lord
Mustill explained in Doody.
Common errors
The main approach that was erroneous was just to offer a general outline of the
very basic law on procedural fairness, such as Cooper and Russell. A number of
essays ended with the decision in Ridge v Baldwin, which was perhaps more of a
starting point than the end! Such answers frequently made no reference to the
reasons for the imposition of the principles of procedural fairness.
Another common error was for students to draw upon the case law on bias, looking
at the development of the test for bias culminating in Porter and the development of
the concept of the ‘independent and impartial observer’ in Helow. A number of
essays included a great deal on these issues but such discussion was plainly not
relevant to the question, which invited a discussion of the audi alteram partem
principle and not the nemo judex in causa sua principle.

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A good answer to this question would…

offer a structured approach, discussing the elements of the audi alteram partem
principle with appropriate reference to case law examples. Consideration of the
reasons why the requirements are imposed could have come before or after such a
discussion but should have drawn on relevant case law and the academic literature
in the field.
Poor answers to this question…
tended to focus only on the early law, such as Cooper v Wandsworth Board of
Works and Ridge v Baldwin and lacked depth and detail in the analytical framework
– it was important in responding to this question that students appreciated the
objectives of the audi alteram partem principle and the more recent case law on the
issue.
Student extract
‘Audi alteram partem’ principle is Latin words meaning right to be heard. A
party has the right to be heard before a decision is taken which concerns the
party. It is one of the most important principle of common law established
long ago to protect and secure the right of the individual.
This principle is part of procedural fairness, which courts implement in all
cases in order to ensure justice. In GCHQ case, Lord Diplock has stated
three heads for judicial review as illegality, irrationality and procedural
impropriety. He also stated that the principle of proportionality might be
added in the future. He stated procedural impropriety cause it includes failure
on the part of administrative body. The courts are reluctant to impose ‘right of
hearing’ in all administrative cases, but the scope of ‘right to be heard’ has
increased due to Human Rights Act 1998 (HRA 1998) and European
Convention on Human Rights (ECHR) and it got boarder meanings.
It has four parts and if any of that part is missing or lacks the proper degree
then the decision or the action taken by the public authorities are subject to
judicial review.
[The candidate then produces a diagram similar to that in the module guide
setting out the elements of the right to a hearing, viz. availability of evidence
and accusations, right to legal representation, right to be heard and right to
cross-examination (erroneously referred to as ‘re-examination’)].
(i) Availability of evidence and accusation: the party affected by the decision
or action of the public authorities has the right to access the evidence and
has the right to know the accusation subject to some exceptions. In Kaida,
the licence was cancelled by the authority and the party had the right to know
the accusation & access to evidence regarding the issue subject to safeguard
of the informant. In Bank Mellat the bank was facing possibility of assets to
be frozen due to suspect of funding terrorist and the court held that the Bank
had the right to accusation and access to evidence.
Comments on extract
The answer proceeded in much the same manner for the remainder, setting out the
other aspects of the audi alteram partem principle along with some relevant cases
and then went on to discuss the reasons for the courts’ imposition of the
requirements, drawing on Lord Reed in Osborn and some other relevant sources.
Accordingly, the answer achieved a mid-2:1 mark. To be stronger it would have
needed to show more sophistication, with some greater knowledge of the case law
and an approach that was more analytical, rather than descriptive of the case law.

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Question 2
‘The law on the payment of financial compensation for the unlawful actions of
public authorities is in urgent need of reform.’
Discuss.
General remarks
We are perennially surprised that so few students tend to engage with question on
financial compensation for redress of grievance, or the tortious liability of public
authorities for unlawful acts. This is an important issue in administrative law and
should allow students to build upon knowledge developed in their study of tort law.
This year’s exam yielded little that was different than that in previous years, in the
sense that very few students chose to answer this question. Furthermore, a number
of the answers that we saw were very general and lacked sufficient focus on the
question. There were a number of very strong answers, demonstrating an
understanding of the importance of financial compensation for grievance redress in
appropriate cases, the challenges facing English law and the possibilities that might
exist for reform. However, many of the answers that we saw were not good
because they did not deal appropriately with the two fundamental issues of the
question – they did not address the specific law in relation to the liability of public
authorities and also did not consider the challenges of compensation for unlawful
action. The module guide addresses the issue of liability in private law and
particularly in the law of tort in some detail, so there are many resources available
to students in relation to these issues. Furthermore, the question here was
deliberately broad – it talked of the law on the payment of financial compensation,
so the scope of the question could also have been interpreted to include legal and
possible non-legal redress (via the ombudsman) for the unlawful actions of public
authorities.
Law cases, reports and other references the examiners would expect you to use
Case law that might be discussed could include that on the general principles
applicable to compensation for unlawful action (Lee Hirons is a good example), the
approach in the tort of breach of statutory duty (Hague, O’Rourke and Cullen),
negligence liability and its challenges (there is a great deal of case law here, the
most important being Dorset Yacht, Hill, X, Stovin, Barrett, JD and Jain) and the
case law on Human Rights Act damages (Van Colle, Greenfield, Rabone and
Faulkner). The law on the tort of misfeasance in public office could also have been
relevant and would have received credit if considered, although this material is
undoubtedly of relevance in a far smaller number of cases than the other possible
routes to financial compensation, so coverage of this issue would be less important.
Similarly, the possible role of ombudsmen in recommending financial compensation
in appropriate cases could also have been considered and, if it was, credit was
awarded.
There is considerable literature in the field, including that by Birkinshaw, Steele,
Harlow, Du Bois, Craig and Fairgreave and the Law Commission papers on reform
would all have been relevant.
Common errors
The most common error in response to this question was for candidates to offer a
general essay on the requirements of negligence liability – Donoghue v Stevenson,
causation, proximity, the Caparo test, etc. As this has only peripheral relevance at
best to the liability of public authorities, such answers derived little credit.
A good answer to this question would…
have demonstrated a clear understanding of the basic principles of English law on
the liability of public authorities for unlawful acts (i.e. that there is no liability in the

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absence of some kind of actionable wrong). The answer would have then gone on
in a structured way to discuss the possible routes to liability, their challenges and
prospects for reform, drawing on relevant case law examples and material from the
literature as appropriate.
Poor answers to this question…
tended to be very general, missing the point of the question, which concerned the
liability of public authorities and the possible need for law reform in the area.
Instead, answers tended to discuss general issues in relation to negligence liability,
or even simply to write prepared essays on topics that had not come up on the
exam paper that were entirely irrelevant to the question.
Question 3
‘…[I]n many cases, perhaps most, application of a proportionality test is
unlikely to lead to a different result from traditional grounds of judicial
review.’ Per Lord Carnwath in Youssef v Secretary of State for Foreign and
Commonwealth Affairs [2016] UKSC 3 at [57].
Discuss.
General remarks
This question was designed to offer students the opportunity to address the issue of
rationality review, with particular focus on the growing similarities between the
Wednesbury and proportionality tests and allowing students to consider the reasons
why such similarities might be increasing. The question proved to be popular, with
many candidates offering a response. In the case law and the literature, there are
often two significant strands of thought. The first asks whether it is appropriate or
desirable for the Wednesbury test to have been extended beyond the scope
originally envisaged by Lord Greene, considering the constitutional implications and
uncertainties that this development has created. The second strand of thought is
concerned more closely with the question of whether the Wednesbury and
proportionality tests are now one and the same, or whether there is a move to the
unification of the two tests. This question was located firmly within the second
strand – seeking an analysis of the extent to which the current law on the
substantive review of rationality has moved closer to a proportionality test,
considering the possible similarities and differences between Wednesbury and
proportionality, when the different tests should be used and, in light of the quote
from Lord Carnwath, whether the two tests lead to different outcomes. It is, of
course, important for students to have some understanding of the nature of the
traditional approach to the Wednesbury test and the way in which it has changed
over the years, particularly since the passing of the Human Rights Act 1998.
Law cases, reports and other references the examiners would expect you to use
A wide range of cases could have been considered, including Wednesbury, Brind,
Smith, Simms, Mahmood, Daly, ABCIFER, Miss Behavin’, Begum, Huang,
Kennedy, Bank Mellat, Pham, Youssef, Keyu, UNISON and many others.
Consideration could have been given to a wide range of literature, including the
works of P. Craig, Goodwin, Young, Birkinshaw and Lienen. In order for answers to
be strong, it was important to provide evidence of some consideration and
understanding of the academic debate in this area.
Common errors
We saw two common errors in relation to this question. The first was for candidates
to offer an answer that focused more on the first strand of analysis outlined above –
i.e. essays sought to offer a response to the question of whether the Wednesbury
test was now too uncertain, or had become too broad. Of course, much of the
material that might have been offered in such an answer was broadly relevant to the

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question and so credit was granted accordingly but the lack of focus on the question
limited the overall mark awarded. The other common error was for answers with a
stronger focus on the question to finish the analysis of the case law with the
decisions in Brind and Smith. Such answers would have been solid 20 years ago
but then and again, a question such as this one could not really have been posed at
that time!
A good answer to this question would…
offer a solid structure for the analysis, explaining the nature of the Wednesbury test
and the reason why it was adopted in the manner that it was. There would then
have been a discussion, focused on the question and drawing on appropriate case
law as evidence, as to whether the test has now become uncertain. The best
answers would have augmented the discussion of the case law by drawing on the
relevant academic literature.
Poor answers to this question…
often lacked focus on the question as explained above, or demonstrated a lack of
knowledge of the recent case law. Some answers also spent time discussing issues
that were not really relevant to the question, such as ‘umbrella’ Wednesbury or
illegality, or concentrated on the very old ‘proportionality of penalty’ cases like Hook
and Benwell.
Student extract
This question require me to discuss whether ‘in many cases, perhaps most,
application of a proportionality test is unlikely to lead to a different result from
traditional grounds of judicial review’.
Some people think that the doctrine of unreasonableness as traditionally
understood add nothing to the law of judicial review and should be given up
as its subjective nature render it uncertain, they are saying that the traditional
Wednesbury test should be replaced by a general doctrine of proportionality.
Many people have argued that the traditional Wednesbury test should be
replaced by the proportionality test. I would like to introduce the traditional
grounds of irrationality first. The test of irrationality to be applied is drawn
from the case of Wednesbury, in which it was held that a decision would be
irrational only if no reasonable decision makers could have reached the same
conclusion. And successive cases reinforce the point that the test of
irrationality to be applied and demonstrate that the judiciary are wary of
stepping outside of constitutional boundary by interfering with executive
autonomy, a point stressed in Brind. It should be noted that an extremely high
threshold has been set in respect of claim for irrationality.
The ‘traditional grounds of judicial review’ in this question is referring to the
Wednesbury test mentioned above. There have been many arguments about
whether the proportionality test should replace the Wednesbury test and how
are their difference.
Although Lord Cooke commented in Daly that ‘I think the day will come when
it will be more widely recognised that Wednesbury was an unfortunately
retrogressive decision in English administrative law’, and this is welcome for
possible future change for the traditional Wednesbury test. As this question
ask ‘application of a proportionality test is unlikely to lead to a different result
from traditional grounds of judicial review’. The decision in defence seems to
row back from Lord Cooke’s comment and it confirm that where no
Convention right are in play under the Human Right Act, the proper standard
for review remain Wednesbury. It show that the court normally choose the
traditional grounds of review rather than the proportionality test, and in many

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cases it true that the results between using Wednesbury test and
proportionality are quite similar and no huge difference shown.
Comments on extract
This is an excerpt from a longer answer that went on to mention a relevant article
and also two more cases that were broadly relevant. The question identifies the
broad subject matter of the question and goes on to discuss some relevant case
law. However, the discussion of the law does not address the most recent cases
and there is no clear effort to respond directly to the question posed. This answer
achieved a low 2:2 mark overall. In order to be stronger it would have needed to
consider more relevant case law and academic literature and to have had a greater
focus on responding to, rather than reiterating the question.
Question 4
‘The courts continue to develop the doctrine of substantive legitimate
expectation to deliver a number of important values derived from the rule of
law.’
Discuss.
General remarks
This question offered the opportunity for students to address issues arising in light
of the development of the law on substantive legitimate expectation. As such, other
perhaps than as a brief point of comparison, the law on procedural legitimate
expectation was not particularly relevant. A significant number of candidates
attempted this question and there were some very good answers, although there
were also many weaker answers to the question that struggled for relevance. One
thing that we noted was that many students produced what were largely ‘learned’
and pre-prepared essays on the relationship between legitimate expectation and
estoppel. This material was not entirely irrelevant, so some credit was awarded for
such discussion but it is clear following the decision of the House of Lords in
Reprotech (now almost 20 years ago) that substantive legitimate expectation has
grown separately from the law of estoppel and seems to be grounded in principles
drawn from the rule of law, such as legal certainty, protection against non-
retroactivity and fairness, so detailed consideration of the similarities and
differences between private law and public law concepts is less relevant than it was
when reflecting on the earlier decisions such as Rootkin and Hulkin. Of course, the
ultimate weakness here was that these answers demonstrated a lack of familiarity
with the recent direction taken by both the case law and the academic debate, both
of which are covered in some detail in the module guide and the relevant readings.
Law cases, reports and other references the examiners would expect you to use
Cases that might be considered include Ng Yuen Shui, Ruddock, Reprotech,
Unilever, Adimi, Nadarajah, Bibi, Coughlan, Hamble, Niazi and Begbie. It might also
have been possible to address the problematic issue of ultra vires representations.
Cases here might include Rootkin, Rowland and Western Fish. There are also a
number of other relevant decisions referred to in the relevant literature.
The academic literature includes works by P. Craig and Schønberg, Sales and
Steyn, Steele and Bell.
Common errors
The most common error was for students to consider only the very early case law
on legitimate expectation and to explore the links between legitimate and
expectation and estoppel. The difficulty with such approaches is that the question
was specific in what it was looking for – consideration of the development of
substantive legitimate expectation and its role in supporting values derived from the

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rule of law. Another error was for answers to focus excessively on procedural
legitimate expectation, which was not what was required by the question.
A good answer to this question would…
offer a coherent and structured approach to the question, identifying the ways in
which the substantive legitimate expectation principle might support values inherent
in the rule of law, drawing on appropriate examples from the case law. The very
strongest answers might also have sought to illustrate some of the problems with
the doctrine as it stands, particularly in relation to ultra vires representations.
Poor answers to this question…
often included material that was not relevant, or only peripherally relevant to the
question, such as lengthy discussions of procedural legitimate expectation, estoppel
or the older case law, to the exclusion of more recent decisions.
Question 5
‘The Parliamentary Commissioner for Administration delivers important
functions in terms of grievance redress and improvement of future
administrative action.’
Discuss.
General remarks
This question was remarkably popular and was answered by almost all candidates.
There were some very good answers but many answers failed to get beyond a 2:2
because they did not focus on the question, which was primarily about the
ombudsman as an effective means of grievance redress. There were a large
number of ‘learned’ essays in response to this question, most of which were general
outlines of the jurisdiction and powers of the PCA, the MP filter, the basic
framework of remedies and perhaps something on the potential reforms to the
ombudsman system. These answers varied in their performance, depending on the
depth and detail of the discussion but seldom did well as they were not focused on
the requirements of the question.
One trend that was notable in quite a number of the essays was that they tended to
offer a very detailed (sometimes in excess of one page!) outline of the facts of the
Debt of Honour investigation and report. Although this investigation and its outcome
could be relevant to the question, such detail on the facts of the case and the
investigation was not required and garnered little credit.
Law cases, reports and other references the examiners would expect you to use
We might expect to see discussion of the relevant legislative provisions of the
Parliamentary Commissioner Act 1967, investigations by the PCA such as
Sachsenhausen, Channel Tunnel Rail Link, Debt of Honour, Equitable Life, etc.
Consideration of the relevant case law on judicial review of the failure to comply
with decisions of the PCA, such as EMAG and Bradley was also relevant.
Consideration might also have been given to the draft Bill on a Public Service
Ombudsman and its impact on grievance redress.
Discussion of the ‘fire watching’ role of the ombudsman and the efforts to
strengthen grievance redress could have drawn on Harlow and Rawlings and the
PCA’s principles of good administration and grievance redress.
Academic literature, such as that by Kirkham, Drewry and others as listed in the
module guide would have added points for analysis.
Common errors
Everyone who answered the question identified that it required a discussion of the
PCA, so there were no errors in the sense that candidates missed the point of the

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question. The main error, as noted above, was that many candidates offered only a
very general discussion of the PCA’s remit but with no focus on the ‘grievance
redress’ element of the question, or which omitted consideration of the aspect of the
question on improvement of future administrative action.
A good answer to this question would…
adopt an approach focused on the question. Consideration might be given to the
jurisdiction and access to the ombudsman (which is relevant to the availability of
grievance redress), the potential of the investigatory process to resolve grievances,
the reports of the PCA and the potential for redress of grievance (with possible
examples such as Sachsenhausen, Channel Tunnel Rail Link, etc.), the challenge
of enforcement and the provisions of s.10 PCA 1967 and the case law on judicial
review (Bradley, EMAG) on approaches to enforcement. Answers might also have
considered the role of ‘positive principles’ and ‘fire watching’ and their potential to
improve grievance redress and the proposed reforms to the ombudsman system.
Poor answers to this question…
were often ‘learned’ answers that offered general accounts of the ombudsman
system but with little or no focus on the question. For the higher grade bands, it is
imperative that candidates demonstrate and understanding of the question and
direct the material offered towards the question.
Question 6
‘The law on standing to bring a claim for judicial review has failed to meet the
objectives that the requirement in s. 31(3) of the Senior Courts Act 1981 was
designed to achieve.’
Discuss.
General remarks
This was a very popular question, answered by the vast majority of students who
took the exam. The question was essentially seeking to test candidates’ knowledge
of the ways in which access to judicial review might be constrained by the law of
standing. The question was explicit, in the sense that it anticipated a discussion of
standing and its objectives. Many essays here were able to offer accounts of
varying quality of the law on standing, with the better ones drawing on academic
literature to categorise the cases and inject some structure into the answer.
However, many essays did less well in considering the purposes of the locus standi
principle and did not come back, after an analysis of the case law, to consider
whether the modern law
Law cases, reports and other references the examiners would expect you to use
We might have expected to see consideration of s.31(3) of the Senior Courts Act
1981, the more recent developments in ss.31(3C)–(3F) of the Act along with
relevant case law, such as the National Federation of Small Businesses (Fleet
Street Casuals) case, Smedley, Edwards, Rees-Mogg, Child Poverty Action Group,
Rose Theatre Trust, Greenpeace and World Development Movement cases,
amongst many others. The rules on standing under s.7 HRA 1998 might also have
been considered. Literature included the work of Cane, Bondy and Sunkin and
Schiemann.
Common errors
The main error that candidates made here was to write a prepared essay on
standing covering only the case law but with insufficient consideration of the
underlying objectives of the law on locus standi. Such answers were an incomplete
answer to the question, so although credit was granted for such good discussions of
the case law, they could not achieve at the highest level.

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A good answer to this question would…
explain the context (i.e. the purpose of the law on standing, delay and costs) and
then move on to analyse each of the specific issues raised by the question, drawing
on relevant examples from statute, case law and the literature to build an argument
in response to the question. Although it was not specifically mentioned by the
question, the strongest answers drew upon related areas of law, such as delay and
costs, to illustrate that it is not only the law on locus standi that might serve to
restrict access to judicial review.
Poor answers to this question…
tended to outline the law on standing and do little more.
Question 7
‘The impact of the Human Rights Act 1998 on administrative decision-making
has been profound.’
Discuss.
General remarks
This question asked students to think about the impact of the Human Rights Act
1998 on administrative decision-making. It proved to be relatively popular, with quite
a number of answers. A challenge here was that many students saw this question
as an opportunity to rehearse essays that we might assume has been learned for a
response to the Public law paper, outlining the nature and history of the Human
Rights Act 1998, some of the key provisions and the general case law. Much of the
material that was offered in these essays tended to lack relevance and so achieved
only low marks, if they proved able to pass. A focus on the question was essential
here if a strong mark was to be awarded – there was a need to focus on the way in
which the Act and the subsequent judicial review cases have impacted on
administrative practice. There were a number of good answers to this question but
many lacked focus on the most relevant issues.
Law cases, reports and other references the examiners would expect you to use
Students might consider the Human Rights Act 1998, particularly ss.6 and 7. There
might then be an analysis of the impact of the Act on administrative decision-
making, drawing on relevant examples from the case law. There are a huge number
of examples that could have been offered and we would not have anticipated
comprehensive coverage. Examples could include the scope of the ‘public authority’
test, considering cases such as Wallbank, Hampshire Farmers Markets, YL and
Weaver. There could also have been a consideration of the impact of the Act on
substantive review, drawing on Huang, Kennedy, Bank Mellat, Pham, Youssef
among others. There could have been consideration of the impact on procedural
requirements with consideration of cases such as Bank Mellat or Bourgass (King),
Thompson, Smith and West, Osborn, Carroll, Ezeh and so on.
Academic literature could include the work of Leigh, P. Craig, Birkinshaw, Ewing
and others. Practical evidence of the impact of human rights might also have been
drawn from the Judge over your shoulder publication for civil servants.
Common errors
The most common error was for candidates to write a general essay about the
Human Rights Act 1998, with no real focus on the question, including extensive
analysis of the interpretation/declaration of incompatibility case law and the
parliamentary processes required by the Act. These answers garnered little credit
because they lacked relevance.

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A good answer to this question would…

offer a structured response to the question, explaining the requirements of the Act,
the application to public authorities and then drawing on relevant examples from the
law to illustrate how the Act has demanded changes to the previous practices
adopted in administrative decision-making.
Poor answers to this question…
offered a general account of the Human Rights Act 1998, with little or no real focus
on the question.
Question 8
The (fictitious) Fruit Safety Commission (FSC) has been set up by statute to
ensure the safety of fruit in England and Wales following a number of
outbreaks of illness caused by the consumption of unsafe fruit in the past
year. The FSC is given powers by statute to: (1) prohibit the sale of fruits
where they are found to pose a danger to public health; and (2) to order the
closure of fruit warehouses and the destruction of stocks if a risk of illness is
found. The FSC has five members, appointed by the Secretary of State for
Agriculture, Fisheries and Food.
a) The FSC banned the sale of ‘Sunstar’ mangoes and ordered that the
warehouse of the importer be closed and that all stocks must be
destroyed after a slightly raised level of pesticides that may cause
illness was found in one small batch of the fruit, but not any of the
other stock. Julia, the importer of the ‘Sunstar’ mangoes and owner
of the warehouse, is aggrieved by this decision.
b) Ahmed is a grower of organic fruit fertilised using untreated manure.
He is very unhappy that all of the fruit that he has grown so far this
year has been banned from sale. The FSC has a published policy
banning all soft fruit grown with untreated manure as fertiliser due
to the elevated risk of food poisoning. Ahmed believes that his
product does not cause the same food safety risks as other soft
fruit grown using untreated manure as fertiliser due to his different
growing methods, but the FSC have refused to consider departing
from their policy.
c) The chairman of the FSC promised the Association of Fruit Vendors
(AFV) that it would be consulted before the publication of its policy.
The AFV is unhappy that it was not consulted in advance of the
publication of the FSC’s policy banning the sale of fruit affected by
certain types of chemicals.
d) The FSC has banned the sale of ‘Sweetstar’ pears. David, the grower
of ‘Sweetstar’ pears, has been given no reasons for the decision to
ban his product and the FSC has refused to allow him to make
representations.
Advise Julia, Ahmed, the AFV and David whether the FSC has acted
unlawfully in their respective cases and on whether it will be possible to claim
judicial review in order to seek redress.
General remarks
It is fair to say that more students attempted the problem question on the paper
than we have seen in previous years. There were some impressive answers,
demonstrating good problem-question technique and a solid knowledge of the
relevant law. Other answers picked up on a number of the legal issues, although
with only limited technique or knowledge and application of the relevant case law to

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the facts. We also noticed a number of answers that simply tried to use knowledge
from prepared essays that did not come up on the paper in response to the problem
question. This invariably led to a very low fail mark. We think that it is possible that
candidates might benefit if they prepare to answer a problem question, as many
aspects of the answer require the application of knowledge that is needed in order
to answer the various essay questions and so with the correct technique, there is
potential for students who are well-prepared to respond to the papers to achieve
well on a problem question in administrative law.
Law cases, reports and other references the examiners would expect you to use
Statute and case law on procedural requirements, such as the requirement to
exhaust internal redress processes (Cowl, Swati), time limits (s.31 Senior Courts
Act 1981) and the Civil Procedure Rules, Part 54, the pre-action protocol, standing
(s.31 Senior Courts Act 1981 and relevant case law, particularly on representative
organisations for this question) and the law on delay and promptness (Swale BC,
etc.)
On substantive issues, we were looking for a discussion of possible
unreasonableness or lack of proportionality (Wednesbury, Kennedy). The law on
fettering of discretion (British Oxygen, etc.) The law on consultation was relevant
(particularly Liverpool Taxis and Aylesbury Mushrooms), the duty to give reasons
(Doody, etc.), the audi alteram partem principle (Cooper, Lloyd, Smith and West,
Osborn).
Common errors
A number of answers could identify the broad legal issues raised by the question
but then could not cite any, or only very little relevant law in support. Most answers
failed to address the procedural issues that are so important in judicial review
claims, or addressed only standing but not the other issues. A general weakness
that we saw is that there was a failure to offer advice to the putative clients – what
action could they pursue and how worthwhile might that action be?
A good answer to this question would…
begin with a consideration of the procedural issues of general application, then
move on to deal with the substantive issues in a consistent manner, using the IRAC
method, and applying relevant law to the issues in order to generate sensible
advice for the clients.
Poor answers to this question…
tended to omit the procedural issues in their entirety, or at least to isolate
consideration only to standing. Poor answers might have addressed the issues
relevant to only one or two of the clients, may not have used the IRAC method in a
consistent manner, or might have failed to apply relevant case law to the issues.
Student extract
The question needs to discuss the possible grounds of the judicial review
proceedings against Fruits Safety Commission (FSC). The rule will be
followed as it was stated in in Part 54 of the Civil Procedural Rules 1998
(CPR 1998). As in the stem provided the probable claimant who will be the
applicant is Julia, Ahmed, AFV & David for the subpart of (a), (b), (c) and (d)
respectively.
Standing: all the parties concerned will have victim standing as they all have
sufficient interest in their claim. So accordingly, s.31(3) of the Senior Courts
Act 1981 permission stage will be fulfilled if the application is brought within 3
months time limitation. Then the cases will go forward for the hearing stage if
it has merit to be heard.

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 Examiners’ reports 2019

In the answers, the possible ground for judicial review will be discussed
thoroughly in part according to the questions. Relevant cases will be
discussed. It must be noted that there is no availability of ouster clause.
For part (a) where Julia will claim:
According to the fact, FSC is given power by statute to prohibit sale if any
danger of public health is found. ‘Sunstar’ was owned by Julia, which was
closed due to raised level of pesticides, in just one small batch of fruit. The
broader ground of review may be irrationality. The new ground of
proportionality might also invoke. Only one small batch of fruit is not sufficient
to decide what all other batch of fruit consists. So, according to the
Wednesbury Corporation (1948), the decision was unreasonable.
Proportionality can also be discussed. Here the Aguilar Quila case (2012)
test, subsequently endorsed in Steinfield and Keidan (2018) will be followed.
(i) The measure taken meeting the objective of legislation (here the
prohibition).
(ii) Measure is rationally connected with the objective (in the fact it is
connected).
(iii) Any less measure can be adopted to meet the objective (here it is
arguable).
(iv) balance of interest between private body & wider public need to be
struck.
In the fact the 4th factor is relevant, the interest of the wider community and
Julia’s private interest need to be fair balanced. So, Julia might invoke the
ground of proportionality to seek redress against FSC.
For Part (b) Ahmed will claim:
From the fact, Ahmed is an organic fruit grower. Though his method was
quite different the FSC must took the method in consideration. As it did not
take it has acted illegally so the ground Illegality might come, the heading will
be relevant & irrelevant consideration. According to the case of Venables,
Ahmed might argue on this ground. Again FSC was told by Ahmed that there
was no chance of food poisoning but FSC refused to depart from the policy
settled. The heading relevant here is ‘fettering of discretion’. According to the
British Oxygen case, authorities who remains strict to the settled policy act
illegal. Relevant authority cannot shut its ears and eyes to maintain a policy.
So, according to the above discussion, illegality by fettering of discretion will
be the ground for judicial review.
For part (c) AFV will claim: AFV was assured that it will be consulted before
the publication of policy. But it did not do so. AFV will have a legitimate
expectation under a clear and unambiguous & precise promise by FSC. It will
be a violation of natural justice if the legitimate expectation is frustrated.
According to the case of Liverpool Taxis, where it was promised that any
change of policy will be consulted prior to change with the affecting body.
Another probable way is the illegality ground. If the statute provides that
affecting parties will be given consultation then this ground may invoke. As in
this fact it is not clear about the statutory promise so, it is arguable under the
Aylesbury Mushroom case. The main ground will be legitimate expectation.
Comments on extract
This answer went on in a similar manner for the final part of the problem and made
a few final observations in relation to a possible human rights claim. This was

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relevant but lacked detail. Overall, this was a very solid answer to the question that
demonstrated some relevant knowledge of procedural issues (although this would
have been stronger had it offered a little more detail) and identified relevant issues
for the clients, applied some relevant law and advised on the potential success of
the claimants. The discussion in part (d) of the answer was a little less strong but all
the same this response achieved a mid-2:1 overall. In order to be stronger, the
answer might have been more concisely and clearly expressed and there could
have been more detail on the procedural points.

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