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Critically examine and assess the importance in the development of judicial review of the case of:-

Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte World Development Movement Limited [1995] 1 W.L.R. 386

(referred to herein as "the WDM case")

The Overseas Development and Co-operation Act 1980 was enacted to provide assistance to developing countries, including valuable know-how and skills which they would not otherwise have had, as well as assistance with economic and social development[1]. In 1988, a British Consortium sought aid under Section 1 of the Act for a project to construct a power station on the Pergau River. A formal application was made by them to the Overseas Development Mission ("ODA") indicating costs of £315 million for the project, this figure being subsequently revised to £316m in their contract proposal. Following an investigation by the ODA, the UK Government orally offered support up to £68.25m; but the ODA reported that at the Consortium's quoted price of £316m, the economic viability of the project was "marginal". Their quote was further revised to £397m at a later stage, and the ODA then classified the project as "no longer marginal but clearly uneconomic".

Despite this, in April 1989 the UK Government submitted a formal written notice of offer based on £316m with an indication of willingness to discuss the possibility of further assistance. The ODA carried out a subsequent investigation and reported that at £397m, the project would be a "very bad buy" and a "burden on Malaysian consumers" -- continuing with the project would be, according to them, "an abuse of the aid programme". Regardless of this, the Secretary of State for Foreign and Commonwealth Affairs, concerned that a withdrawal of the offer already made would adversely affect the United Kingdom's credibility, approved support for the project and agreements were signed by the Countries to this effect.

The applicants, World Development Movement Limited ("WDM") who were a limited company acting as a pressure group dedicated to improving the quantity and quality of British aid to other countries, sought an assurance from the Secretary of State that no further funds for the project would be paid out, but this was refused. They therefore sought judicial review of the Secretary of State's decision to grant funding and to refuse to withhold further payments.

Under the Civil Procedure Rules, a claim for judicial review will only be admissible if permission (leave) for judicial review is obtained from the High Court. Permission may be refused if one of the following conditions is not satisfied:

  1. The application must be made promptly and in any event within three months from the date when the grievance arose[2];
  2. The applicant must have sufficient interest in a matter to which the application relates[3]. This requirement is known as the requirement of standing; and
  3. The application must be concerned with a public law matter, i.e. some rule of public law, not purely tort or contract.

Where one of these conditions is in doubt, the Court may not automatically refuse permission for judicial review. It may, in its discretion, to examine all the circumstances of the case and see if the substantive grounds for judicial review are serious enough[4].

In the present case, the question arose as to whether the applicants had sufficient interest, or standing, to be granted leave for judicial review. The WDM were not a government organisation, nor were they connected to the ODA: but they were in regular contact with the ODA and had regular meetings with relevant Government Minister. They also made regular written and oral submissions to a range of select committees in both Houses of Parliament. It was questionable, however, whether they had 'locus standi'; that is, that they personally had a sufficient connection to and harm from the law or action challenged to support their participation in the case. It would appear primie facie that they did not. Previous case law shows that in such a situation, leave would not be granted: for example, in Barrs v Bethell[5], ratepayers sought an injunction against a local authority alleging abuses of discretion given to councillors. The litigants were not permitted to bring an action in their own name, but could only seek a relator action.

In the WDM case, however, the Court held that leave could be granted for judicial review on the basis that standing, or sufficient interest, was not to be treated as a preliminary issue but was to be taken in the legal and factual context of the whole case. Other factors important, and perhaps dominant when considering the issue of sufficient standing, were stated by the Court to include the merits of the challenge. In addition, the Court considered that the importance of vindicating the rule of law, the importance of the issue raised, the likely absence of any other responsible challenger (if the applicants were not permitted to bring the case through lack of standing, it would be unlikely that another person or body could ensure that the powers under the 1980 Act were exercised lawfully), the nature of the breach of duty against which relief was sought and the prominent role of the applicants in giving advice, guidance and assistance regarding aid were all significant factors pointing to the conclusion that the applicants had sufficient interest within the meaning of Section 31(3) of the Supreme Court Act 1981 and Civil Procedure Rules.

The case is similar to the earlier case of R v HM Inspectorate of Pollution, ex parte Greenpeace[6], in which leave was granted to Greenpeace to bring an application in relation to the testing of a nuclear processing plant at Sellafield, partly on the basis that Greenpeace had around 2,000 of its members living in the vicinity of Sellafield, and could therefore be said to be representative of persons having a direct interest in the matter; but partly also because like WDM, Greenpeace was a responsible pressure group, with expert knowledge of the scientific issues involved, and was therefore in a position to bring an application in an efficient manner. Unlike the Greenpeace case, however, WDM could not be said to be representing persons who would have had locus standi in the matter[7]. On previous case law, such as R v Secretary of State for the Environment, ex parte Rose Theatre Trust Co[8], the applicants (who had set up the pressure group in order to bring the review) would not have been granted leave because, per Schiemann J, "some thousands of people join together and assert that they have an interest does not create an interest if the individuals did not have an interest".

Since those cases, in R v Somerset CC and ARC Southern Ltd ex parte Dixon[9], it has been argued that it ought to be open to any person or organisation who can make our an arguable case that public power has been abused to bring an application for judicial review, provided this is not done with any improper motive. The applicant may have no interest in the matter greater than that of the pubic at large but the Court was willing to grant leave provided that he was not a 'mere busybody' and all other factors had been taken into consideration. Such restrictions are necessary to protect public bodies from harassment from professional litigants and limit unnecessary strains on judicial resources.

The WDM case can be seen as a significant step towards allowing the public, to a greater extent, to scrutinise public bodies and hold them accountable for their decisions. The WDM case acknowledges significantly that if persons without a personal interest were not allowed to bring a case through lack of standing, it is unlikely that there would be anyone else to challenge the action in question. As suggested earlier Reg. v. Her Majesty's Treasury, Ex parte Smedley[10], even the single public-spirited tax payer should be permitted to challenge an illegal action and in doing so, vindicate the rule of law.

The WDM case and the others mentioned here re, however, first-instance decisions and there is therefore no precedent ruling from the Court of Appeal or House of Lords. The Law Commission recommended in its 1994 Report on Remedies in Administrative Law that pressure groups ought to be permitted to bring applications in their own names, and leave should be granted where it is in the public interest for the matter to be aired in the courts (and indeed the position has been unaffected by the change in Civil Procedure Rules). As yet, this recommendation has not been effected. Indeed, the Lord Chancellor's Department in their publication 'Judicial Review: Proposed New Procedures and Draft Rules (2000) CP 8/00, p.7, suggested that a substantial change in wording of the Civil Procedure Rules might result in unnecessary litigation which could put an unjustified strain on the crown office caseload[11]. As it stands, therefore, the requirement of 'sufficient interest' remains and it is for the court to decide whether this exists, having regard to all factors[12].

Bibliography

Cornford, T (2000) The New Rules of Procedure for Judicial Review, 5 Web JCLI

Fenwick, H & Phillipson, G (2003) Text, Cases & Materials on Public Law & Human Rights, Routledge Cavendish

Hansard 16 Jul 2001

Law Commission (1994) Report 226 on Remedies in Administrative Law, HMSO

Lyon, A, Judicial Review of Voluntary Bodies in Dunn, A (2000) The Voluntary Sector, the State and the Law, Hart Publishing, p.34


Footnotes

[1] Hansard 16 Jul 2001 : Column 1320

[2] Civil Procedure Rules, Part 54.5. Legislation can impose shorter time limits; and a court may hold that an application made in less than three months may still be not prompt enough.

[3] Section 31(3) Supreme Court Act 1981

[4] R v Inland Revenue Commissioners ex p National Federation of Self-Employed and Small Businesses [1982] AC 617

[5] [1982] Ch 294

[6] (1994) 4 All ER 329

[7] Lyon, A, Judicial Review of Voluntary Bodies in Dunn, A (2000) The Voluntary Sector, the State and the Law, Hart Publishing, p.34

[8] [1990] 1 QB 504

[9] (1997) COD 323 QBD

[10] [1985] Q.B. 657, per Slade L.J., at 670B, and per John Donaldson M.R., at p. 667F

[11] Cornford, T (2000)

[12] Fenwick, H & Phillipson, G (2003) Text, Cases & Materials on Public Law & Human Rights, Routledge Cavendish p.695-696

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