27 April 2011

Privately Public

I presented a paper at the Legal Research Foundation's recent conference "Judicial Review in the Commercial Context: The Ongoing Struggle for Simplicity".

The paper examines the amenability of private incorporated bodies to judicial review, focussing particularly on the impact of the Judicature Amendment Act 1972:

- Dean R Knight, "Privately Public"
When are – or should – the actions of private bodies subject to the scrutiny in our public law courts? ...
In this paper, I explore the puzzle of the relevance of JAA72 to the question of amenability to judicial review, through the lens of the reviewability of incorporated societies and other private corporate entities. Conflicting decisions of the Court of Appeal on this point provide an entry point into the analysis of the proper relationship between common law review and review under the statutory recognition of judicial review in the JAA72. I argue that the JAA72 cannot be regarded as conferring jurisdiction on the courts to engage in judicial review without reference to the underlying parameters of the common law. The text and purpose of the JAA72, along with policy and constitutional considerations, all point to the JAA72 as being procedural in form and not obviating the need for courts to engage in an evaluation of the publicness of private entities before they subject them to review.
As usual, comment and feedback welcomed.

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Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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