Legitimate Expectation

December 7th, 2018 by James Goudie KC

In R (Jeffries) v SSHD, (2018) EWHC 3239 (Admin) a Divisional Court held that views given by the then Prime Minister in a private meeting with press misconduct victims, about the desirability of completing the anticipated second part of a Public Inquiry into press misconduct, could not give rise to a legitimate expectation that the second part would go ahead.  The meeting had been off the record by agreement, and the Prime Minister could not have thought, or objectively be expected to have thought, that his words could be relied on as creating a legitimate expectation.

Davis LJ, with whom Ouseley J agreed, said:-

“65. The underpinning rationale for the protection of legitimate expectations as a matter of public law is grounded in the requirement of fairness and in the requirement that power must not be misused. One key issue in that context is to ascertain (in any given case where an expectation actually exists) whether that expectation is indeed “legitimate”, in the sense that it will be protected by law.

66. The following propositions are in point for present purposes.

67. First, the starting-point is that the assurance relied on “must be clear, unambiguous and devoid of relevant qualification”: see R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2009] AC 453 at paragraph 60 (per Lord Hoffmann). If it is not, a claim will necessarily fail.

68. Second, whether an assurance is to be regarded as clear, unambiguous and devoid of relevant qualification is objectively assessed by reference to how it would have been reasonably understood by those to whom it was made: see Paponette v Attorney-General of Trinidad and Tobago [2012] 1 AC 1 at paragraph 30 (per Lord Dyson).

69. Third, the doctrine has been invoked primarily with regard to legitimate expectations as to procedure: for example, a promise to a defined group that there will be consultation before a particular decision is made affecting that group. But it is also established that a legitimate expectation may be capable of arising, in appropriate circumstances, where the expectation relates to a substantive decision.

70. This is borne out by the well known decision of the Court of Appeal in R v North and East Devon Health Authority, ex p. Coughlan [2001] 1 QB 213. …

71. Similar sentiments on this particular aspect were expressed by Laws LJ in the case of R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755. …

72. Fourth, where a promise giving rise to a legitimate expectation has been given it is a general requirement that, if there is to be a departure, the fact that the contemplated step will amount to a breach of that promise should be taken into account.”

“74. Fifth, another proposition also potentially comes into play. It is generally accepted that the more a decision lies in the “macro-political” field the less intrusive will be the court’s supervision: see, for example, R v Secretary of State for Education, ex p. Begbie [2000] 1 WLR 1110 at p. 1131 (per Laws LJ). It was rightly accepted before us that a “macro-political” context can be relevant at the first stage in determining whether an assurance engendering a legitimate expectation, recognisable in law, has been made at all: as well as being relevant to any subsequent debate, where it arises, as to justification for departing from such an assurance. As observed by Richards LJ in R (Wheeler) v Office of the Prime Minister [2003] EWHC 1409 (Admin) there in fact may be promises which are so “macro-political” that the courts simply will not entertain a case that such a promise gives rise to a legitimate expectation in the sense of an expectation which will be protected by law: see at paragraphs 41 and 43. The remedy in such a case lies with Parliament or the electorate, not with the courts.

75. Finally, for present purposes, I would touch on the question of reliance. It is plain, on authority binding at this level, that detrimental reliance is not required, as a legal cond ition precedent, to make good a claim based on legitimate expectation. That is made explicit by Peter Gibson LJ in his judgment in ex p. Begbie at p. 1124 A-B. …

76. That detrimental reliance should normally be present in this context and is a relevant consideration, albeit it is not a legal requirement, is further confirmed by the various speeches given in the House of Lords in the case of Bancoult (cited above). A very clear example of detrimental reliance by a defined class based on an assurance given by a public body to that class in fact can be found in the case of Paponette (cited above).”

“101 …sympathy cannot override the law; and I can see absolutely no viable basis for these grounds of claim, based on principles of legitimate expectation in the way that they are, achieving the result which the claimants seek. So I would dismiss this claim.

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