New directions in judicial review; 'heresy' and 'the forbidden merits': what to legitimately expect in the Cayman Islands?

AuthorVaughan Carter
PositionLL. B., LL. M., Lecturer in law, Cayman [stands l aw School, Cayman Islands; Faculty Member, Law Division, School of European and International Studies, University of Derby, England
Pages258-274
NEW DIRECTIONS IN JUDICIAL
REVIEW; "HERESY" AND
'THE FORBIDDEN MERITS":
WHAT TO LEGITIMATELY EXPECT
IN THE CAYMAN ISLANDS?
VAUGHAN
CARTER*
As the concept and application of judicial review continues to fluctuate and
evolve, the notion of legitimate expectation has found itself marooned on the
cusp of this activity. Unsure
as
to which of the grounds of judicial review it is
rooted in, it has come to mean a variety of different things even to those that
are convinced of
its
existence. The authorities are conflicting. Does it exist, or
does it not? Is it confined to procedure, or can it salvage substantive claims?
These questions have dogged the courts in the United Kingdom for many years
now and it would appear that the Grand Court of the Cayman Islands is poised
to enter the debate. In order to fully understand the difficulties that the
Cayman Islands are likely to encounter and the potential conflict that may
arise,
it is necessary to trace the history behind this debate.
Expressing the desire that it would "clear away some at least of the many
semantic confusions that have bedevilled this area of our law", Simon Brown,
L.J., sought in R
v.
Devon County
Council,
ex parte
Baker,
R
v.
Durham County
Council, ex parte Curtis to define the scope and application of the term
*LL..B.,
LL..M., Lecturer in law, Cayman [stands law School, Cayman Islands; Faculty Member,
Law Division, School of European and International Studies, University of Derby, England.
[1995] 1 All E.R. 73, at 88-9. Note that the judgments on these cases were in fact delivered on 21
December
1992.
Both
cases
concerned local authorities and whether they
were
under
a
duty to consult
the residents of old peoples' homes about their proposed closure. It is significant that neither case
actually gave rise to a substantive expectation. See infra n.49 and associated text.
"legitimate expectation".'2 He began in perhaps the broadest possible manner
with the assertion that "sometimes the phrase is used to denote a substantive
right: an entitlement that the claimant asserts cannot be denied him."3 He
continued, explaining that;
[T]he claimant's right will only be found established where there is a clear and
unambiguous representation upon which it was reasonable for him to rely. Then
the administrator or other public body will be held bound in fairness by the
representation made unless only its promise or undertaking as to how its power
would be exercised is inconsistent with the staturory duties imposed upon
it.4
This proposal was not without support. R. v.
Secretary
of State for the Home
Department, ex parte
Khan5
and
R.
v.
Secretary
of State for
the
Home Department,
ex parte Ruddock and
others
were both cited as successful applications of this
purported new doctrine. Such authority however, belies the problematic
operation of a principle that has the potential to propel the concept of judicial
review to new heights and into the "forbidden merits"8 .Consequently, in the
relatively short period of time since the decision in ex parte Baker, there have
been several cases which have revisited both the scope of legitimate expectation
and its application in a substantive context.9 Any attempt to clarify an aspect
of what is a notoriously uncertain area is to be welcomed, yet it would appear
that the ambitions of Simon Brown, LJ., have been thwarted. Perpetual revisits
are testament to the fact that confusion remains, whilst his acceptance and
affirmation that such a claim exists have thus merely prompted fresh contro-
versy and dispute.
This response is not unexpected. Any venture into the realms of substantive
judicial review of administrative actions is likely to encounter hostility from
For a more exhaustive study see Craig, "Legitimate Expectations: A Conceptual Analysis" (1992)
108 LQR 79, which was expressly referred to by
Laws,
J.,
ibid.
at 89.
4 Ibid.
5 [1985] 1
All
E.R. 40.
6 [1987] 2
All
E.R.518.
7 R. v.
Board
of lnland
Revenue,
ex
parte
MFK
Underwriting Agencies
Ltd.
[1990]
1
All E.R.
91
and R
v.
Jockey
Club,
ex
parte
RAM
Racecourses
Ltd. [1993]
2
All
E.R 225 were also noted as unsuccessful
applications of the principle, Reference to such cases was perhaps indicative of the potential
uncertainty as to its future application and, it
is
submitted, better indicators of how the drama
has
so
far played.
8 Forsyth, "Wednesbury Protection of Substantive Legitimate Expectations" [1997] PL 375, at
381.
9
R.
v.
Secretary
of State for
Transport,
ex
parte
Richmond
London Borough Council
[1994]
1
All E.R.
577 (judgment delivered on 29 September 1993, nine months after that in ex parte Baker); R. v.
Ministry
of
Agriculture,
Fisheries
and Foods, ex
parte
Hamble
(Offshore) Fisheries
Ltd.
[1995] 2A11E.R,
714;
R
v.
Secretary
of State for
the
Home
Department
and
another,
ex
parte
Hargreaves
and
others
[1997]
1 All E.
R.397.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT