3017LAW Lecture Notes - Lecture 4: Refugee Review Tribunal, Ultra Vires, Mandamus
(1) REMEDIES + SUMMARY
Prerogative writs
The three main prerogative writs
Certiorari: quashes or annuls an irregular decision,
Decision supposedly made never existed
Prohibition: orders a decision-maker to desist from continuing with a decision-making process
Preventative order – prevents decision making from continuing line of action
Mandamus: orders the performance of a public duty.
Compels decision maker to exercise duty
Equitable remedies also available
Declaration
Injunction
Certiorari and Prohibition
Certiorari consists of an order that the record of a decision by an administrator, tribunal or inferior
court be moved into a reviewing court so that it can be quashed.
•Ordered at two stage = initial order from court, then go to lesser decision maker, recoup all info,
go back to court again, decide whether legal or not
•Certifying decision
Prohibition is used to prevent a person, tribunal or inferior court from proceeding with an unlawful
action or continuing with it.
An important difference between the two remedies is timing.
•Certiorari is used once a decision is made. = AFTER
•Prohibition is used to prevent an unlawful decision from being made at all. = BEFORE
Availability at common law
Certiorari is available to correct:
•denial of procedural fairness
•jurisdictional error (generally ultra vires)
•errors of law on the face of the record (basically all broad ultra vires grounds AND ALL)
Prohibition is available to prevent (making decision):
•a jurisdictional error = don’t have jurisdiction
•where a body is obliged to afford procedural fairness and has refused to allow a hearing = duty
to act procedurally fair and haven’t
PROCEDURAL FAIRNESS OR ULTRA VIRES GROUNDS
Mandamus
Mandamus is issued to compel performance of a public duty that remains unperformed.
performance of public legal duties under Royal Charters and to compel universities and local borough
corporations admit or restore people to their rightful offices or titles.
Compels decision makers to exercise duties when they don’t want to make decision
Mandamus can be sought alone, but is often used in conjunction with other remedies such as certiorari.
Certiorari quashes and then mandamus compels them to remake decision
Equitable remedies
Declarations and Injunctions
•Declarations and injunctions come from Equity – as such they are very flexible.
•A declaration is a statement by a court of the legal rights or duties of, or between the parties =
declaration declares rights to parties = decision is invalid
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Certiorari: quashes or annuls an irregular decision, Prohibition: orders a decision-maker to desist from continuing with a decision-making process. Preventative order prevents decision making from continuing line of action. Mandamus: orders the performance of a public duty. Prohibition is used to prevent a person, tribunal or inferior court from proceeding with an unlawful action or continuing with it. An important difference between the two remedies is timing. Certiorari is used once a decision is made. Prohibition is used to prevent an unlawful decision from being made at all. Certiorari is available to correct: denial of procedural fairness jurisdictional error (generally ultra vires) errors of law on the face of the record (basically all broad ultra vires grounds and all) Mandamus is issued to compel performance of a public duty that remains unperformed. Performance of public legal duties under royal charters and to compel universities and local borough corporations admit or restore people to their rightful offices or titles.
