New directions in judicial review; 'heresy' and 'the forbidden merits': what to legitimately expect in the Cayman Islands?

• Author: Vaughan Carter
• Position: LL. B., LL. M., Lecturer in law, Cayman [stands l aw School, Cayman Islands; Faculty Member, Law Division, School of European and International Studies, University of Derby, England
• Pages: 258-274

NEW DIRECTIONS IN JUDICIAL

REVIEW; "HERESY" AND

'THE FORBIDDEN MERITS":

WHAT TO LEGITIMATELY EXPECT

IN THE CAYMAN ISLANDS?

VAUGHAN

CARTER*

As the concept and application of judicial review continues to fluctuate and

evolve, the notion of legitimate expectation has found itself marooned on the

cusp of this activity. Unsure

as

to which of the grounds of judicial review it is

rooted in, it has come to mean a variety of different things even to those that

are convinced of

its

existence. The authorities are conflicting. Does it exist, or

does it not? Is it confined to procedure, or can it salvage substantive claims?

These questions have dogged the courts in the United Kingdom for many years

now and it would appear that the Grand Court of the Cayman Islands is poised

to enter the debate. In order to fully understand the difficulties that the

Cayman Islands are likely to encounter and the potential conflict that may

arise,

it is necessary to trace the history behind this debate.

Expressing the desire that it would "clear away some at least of the many

semantic confusions that have bedevilled this area of our law", Simon Brown,

L.J., sought in R

v.

Devon County

Council,

ex parte

Baker,

R

v.

Durham County

Council, ex parte Curtis to define the scope and application of the term

*LL..B.,

LL..M., Lecturer in law, Cayman [stands law School, Cayman Islands; Faculty Member,

Law Division, School of European and International Studies, University of Derby, England.

[1995] 1 All E.R. 73, at 88-9. Note that the judgments on these cases were in fact delivered on 21

December

1992.

Both

cases

concerned local authorities and whether they

were

under

a

duty to consult

the residents of old peoples' homes about their proposed closure. It is significant that neither case

actually gave rise to a substantive expectation. See infra n.49 and associated text.

"legitimate expectation".'2 He began in perhaps the broadest possible manner

with the assertion that "sometimes the phrase is used to denote a substantive

right: an entitlement that the claimant asserts cannot be denied him."3 He

continued, explaining that;

[T]he claimant's right will only be found established where there is a clear and

unambiguous representation upon which it was reasonable for him to rely. Then

the administrator or other public body will be held bound in fairness by the

representation made unless only its promise or undertaking as to how its power

would be exercised is inconsistent with the staturory duties imposed upon

it.4

This proposal was not without support. R. v.

Secretary

of State for the Home

Department, ex parte

Khan5

and

R.

v.

Secretary

of State for

the

Home Department,

ex parte Ruddock and

others

were both cited as successful applications of this

purported new doctrine. Such authority however, belies the problematic

operation of a principle that has the potential to propel the concept of judicial

review to new heights and into the "forbidden merits"8 .Consequently, in the

relatively short period of time since the decision in ex parte Baker, there have

been several cases which have revisited both the scope of legitimate expectation

and its application in a substantive context.9 Any attempt to clarify an aspect

of what is a notoriously uncertain area is to be welcomed, yet it would appear

that the ambitions of Simon Brown, LJ., have been thwarted. Perpetual revisits

are testament to the fact that confusion remains, whilst his acceptance and

affirmation that such a claim exists have thus merely prompted fresh contro-

versy and dispute.

This response is not unexpected. Any venture into the realms of substantive

judicial review of administrative actions is likely to encounter hostility from

For a more exhaustive study see Craig, "Legitimate Expectations: A Conceptual Analysis" (1992)

108 LQR 79, which was expressly referred to by

Laws,

J.,

ibid.

at 89.

4 Ibid.

5 [1985] 1

All

E.R. 40.

6 [1987] 2

All

E.R.518.

7 R. v.

Board

of lnland

Revenue,

ex

parte

MFK

Underwriting Agencies

Ltd.

[1990]

1

All E.R.

91

and R

v.

Jockey

Club,

ex

parte

RAM

Racecourses

Ltd. [1993]

2

All

E.R 225 were also noted as unsuccessful

applications of the principle, Reference to such cases was perhaps indicative of the potential

uncertainty as to its future application and, it

is

submitted, better indicators of how the drama

has

so

far played.

8 Forsyth, "Wednesbury Protection of Substantive Legitimate Expectations" [1997] PL 375, at

381.

9

R.

v.

Secretary

of State for

Transport,

ex

parte

Richmond

London Borough Council

[1994]

1

All E.R.

577 (judgment delivered on 29 September 1993, nine months after that in ex parte Baker); R. v.

Ministry

of

Agriculture,

Fisheries

and Foods, ex

parte

Hamble

(Offshore) Fisheries

Ltd.

[1995] 2A11E.R,

714;

R

v.

Secretary

of State for

the

Home

Department

and

another,

ex

parte

Hargreaves

and

others

[1997]

1 All E.

R.397.