Damages in Judicial Review The Commercial Context
The Law Commission has again called for reform of the remedies available in judicial review proceedings. Alongside a range of proposed reforms in the field of tort (which are outside the scope of this article), the Commission recommends the statutory introduction of damages as a remedy in judicial review proceedings, irrespective of any tortious or other private law claim giving rise to a right to damages.
As noted in Christopher Knight's recent review of this journal's, now decade-old, survey of leading public law silks, there is a long-standing desire amongst some members of the profession for damages to be available for maladministration, or on other judicial review grounds, in order to address the perceived inadequacies in certain circumstances of the existing prerogative and other remedies. However, the difficulties (of both practice and principle) involved in the introduction of judicial review damages have also long been recognised.
While the Law Commission has identified many areas requiring further analysis, it appears to have failed fully to consider some of the grounds for caution that arise particularly in the field of commercial judicial review. This article highlights the possible effect of the introduction of a damages remedy on commercial entities, both as would-be claimants and as potential defendants (or interested parties), and on public authorities engaged in the commercial sector.
Author: Charles Brasted
Publication date: May 9 2014