Q&As

What is fettering of discretion in judicial review? When is it an actionable ground of challenge and what must be established for a challenge to succeed?

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Produced in partnership with Jamas Hodivala of Matrix Chambers
Published on: 12 October 2018
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Save in particular circumstances, a public body cannot prevent itself from properly considering the exercise of its discretion in individual cases. While it may permissibly have guidance or a policy on how it will ordinarily exercise its discretion, it must usually operate any such guidance or policy in a flexible manner.

In British Oxygen Co Ltd v Minister of Technology at para [625], Lord Reid famously stated:

‘The general rule is that anyone who has to exercise a statutory discretion must not “shut his ears to an applicationâ€â€¦What the authority must not do is to refuse to listen at all.’

When is it an actionable ground of challenge?

The starting point is Lord Reid’s analysis in British Oxygen. Whenever a public body operates an inflexible policy, it is susceptible to challenge:

  1. •

    over-rigid policy: Even where a policy is operated flexibly, it may be applied in an overly-rigid manner. If it not

Jamas Hodivala
Jamas Hodivala

Jamas' has advised and represented a large number of corporates, based in both the UK and US, which are under investigation by the police, HMRC, Serious Fraud Office, Health & Safety Executive and the Environment Agency. He is often instructed at an early stage of an investigation to advise on the legality of investigatory powers, for example, he acted for the claimant in R (KBR, Inc.) v SFO relating to a US corporate's challenge to the extraterritoriality of a s.2 Notice issued by the SFO, R (Panesar and others) v HMRC on the jurisdiction for a prosecutor to use s.59 proceedings to apply to retain unlawfully seized material and acted for a FTSE-listed UK company to prevent a regulator's retention of LPP material taken by a whistle-blower. He is currently acting for large corporate charged with fraud post-Ivey and also acted for one of the world's main ejection seat manufacturers in HSE v Martin Baker Ltd. He has also represented individuals in bribery and corruption allegations, having acted in R v Majeed and others (Pakistan test match spot-fixing), R v Westfield (Essex cricketer spot-fixing), represented the Sun's Royal Correspondent in R v Larcombe and others, a District Reporter R v Pyatt and others, and also successfully appealed a journalist's conviction in R v France, all prosecuted in separate trials as part of Operation Elveden.

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Jurisdiction(s):
United Kingdom

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