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04 July 2014 / Tim Malloch
Issue: 7613 / Categories: Features , Judicial review , Procedure & practice
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Closing the gap

Should damages be available for judicial review? Tim Malloch investigates

Damages are not generally available as a remedy for judicial review proceedings, unless there has been a breach of EU law or the Human Rights Act 1998. This is an arbitrary distinction that the Law Commission has said should be reformed. This article explains that this general prohibition:

  • is unfair, as it creates an incentive for public office holders not to create documents; and
  • does not provide claimants with an effective remedy for European Convention on Human Rights (ECHR) purposes.

Misfeasance in public office

To obtain damages, judicial review claimants have had to plead other claims, in particular the tort of misfeasance in public office. This is what Vincent Tchenguiz has done in his current dispute with the Serious Fraud Office (SFO) (not yet reported). To prevail, claimants need to prove that a public office holder acted with malice or bad faith. The evidential burden for this tort is difficult to satisfy. It is not enough for there simply to be an unlawful act or decision.

Most claimants will be unable to afford

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Gateley Legal—Jack Kelly

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NEWS
A series of recent decisions has clarified important principles across property law, from perpetuities to lease renewals and public rights over land
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Andy Burnham's brand of 'Manchesterism' could offer fresh thinking on legal aid and access to justice if it reaches Westminster, according to Roger Smith, NLJ columnist and former director of JUSTICE
The constitutional fallout from a change of prime minister, rather than the politics, is under scrutiny as questions arise over the limits of executive authority in a leadership transition
The legal profession is undergoing a fundamental shift from selling services to creating technology-enabled products, according to Professor Luke Mason, Head of School of Law at Regent's University London
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