Appellate Standard of Review in Public Law Cases: What Should it Be?
This is an excerpt from my forthcoming article, “The Appellate Standard of Review in Public Law Cases“. Download it here from SSRN. I blogged in 2018 on the English (AR) and Australian decisions (SZVFW) mentioned below.
In the previous section, I described the broader context surrounding the decisions in AR and SZVFW. I suggested that the decision in AR was not particularly surprising, given recent trends in the appellate standard of review in England and Wales. SZVFW, for its part, is unsurprising too,given the Australian attachment to the “law”/“discretion” distinction and the jurisdiction’s relatively legalistic culture. In this section, I look at these decisionsthrough a critical lens.
The strongest argument in favour of the AR approach is that it would lead to more proportionate dispute resolution if it were applied in all cases. On the one hand, it would conserve judicial resources. Intermediate appellate courts and apex courts would not be required to step into the shoes of a first-instance reviewing court, conducting the judicial review exercise afresh, but simply to assess whether the first-instance judge had made a serious error in the analysis. Indeed, intermediate appellate courts and apex courts could more carefully focus their decisions on issues of general principle raised by first-instance courts. On the other hand, it would also reduce the costs of litigation by reducing the incentives to appeal a first-instance judicial review decision. Given that contemporary administrative decision-making structures often provide for initial decisions, followed by internal appeal or review, followed perhaps by mandatory reconsideration, providing for three successive judicial reviews by a first-instance court, intermediate appellate court and apex court seems like overkill.
The strongest argument in favour of the SZVFW approach is that public law cases are qualitatively different from private law cases. Of course, there are similarities. As noted in the previous section, a first-instance judge will often become immersed in the contextual details of a case, regardless of whether the case began life as an action or a claim for judicial review. Nonetheless, there is an important difference. In public law cases, the issue will be whether an administrative decision is lawful, that is, whether it comports with the standards of legality, rationality and procedural fairness. These standards are fundamental to the lawfulness of administrative action and arguably should not be sacrificed on the altar of administrative efficiency. It is one thing to adopt a relaxed standard of appellate review in a tort or contract case where the parties have had the full measure of trial-type judicial procedures at first instance – the parties have, in other words, received what is due to them from the legal system (even if one of them is liable to be unhappy with the outcome). It is quite another thing to adopt a relaxed standard in a public law case, for the very issue is whether the parties have indeed received what is due to them. If a Minister, local authority, economic regulator or some other administrative actor has acted outwith their powers, the resulting illegality should not be gainsaid by the failure of a first-instance judge to recognise a breach of the principles of legality, rationality or procedural fairness. Put in the argot of civil procedure, an “error in principle” occurred when the unlawful administrative decision was taken and should be corrected, even if the first-instance judge failed to appreciate it.
A subsidiary argument is that there are other mechanisms for achieving the goals of proportionate dispute resolution. The legislature can provide for circumscribed appeals, for example, limiting appellate oversight to “questions of law”, or create leave requirements, which would permit intermediate appellate courts and apex courts only to hear cases which raise issues of general importance. It is notable in this regard that the emphasis on proportionate dispute resolution in Cart was made in a context where the legislature had, through the Tribunals, Courts and Enforcement Act 2007, erected a structure designed to reduce the costs of litigation. Where legislatures are capable of acting so as to further the policy goal of proportionate dispute resolution, there is less need for courts to take the initiative.
Finally, it is important to recognise the radical implications of the AR approach. Following this approach could greatly reduce the ability of intermediate appellate courts and apex courts to deliver general conclusions on questions of national importance. Many important, high-profile cases have in the recent past turned on context-sensitive appreciations of rationality, fairness or proportionality. On the AR approach, intermediate appellate and apex courts would have little or nothing to say in such cases, limited as they would be to assessing whether the first-instance judge made an error in principle. Indeed, in a jurisdiction such as Canada, the AR approach has the potential to undermine the uniformity which is necessary for the healthy functioning of a federal legal system.
On balance, then, the approach in AR should be rejected. Of course, in England and Wales, or Canada, following the SZVFW approach requires the making and maintaining of a distinction between public law cases and private law cases (where the courts would continue to follow a contextual approach). Luckily, such a distinction already exists. Public law cases are those commenced by way of a claim for judicial review; private law cases are those where the originating process is an action. Some cases might present difficulties of classification, but in principle there is a ready-made distinction at hand.
Lastly, it should be noted that some questions which arise
in public law cases will be properly classified as discretionary and subject to
deferential appellate review. Findings of fact made and based on evidence
admitted at first instance; decisions as to whether and under what conditions
intervener status should be granted; and determinations relating to costs
should certainly attract deference from an appellate court. These are questions
which fit the description of judicial discretion offered by Asquith LJ in Bellenden
(formerly Satterthwaite) v Satterthwaite – “that on the same
evidence two different minds might reach widely different decisions without
either being appealable” – and on which the answer given at first instance
should only be rejected if “plainly wrong”.
By contrast, questions relating to whether a claimant has exhausted alternative
remedies, or is engaged in an impermissible collateral attack on an
administrative decision are questions of principle – context-sensitive
questions, to be sure, but questions of principle nonetheless – on which the
appellate court should substitute its judgement for the first-instance court.
Other questions are, admittedly, difficult to classify: deciding whether or not
to hear a moot matter or determining whether a claimant has public interest
standing seem to straddle the line between “law” and “discretion”. What unites
the questions in the “law” category is that they can be described as
jurisdictional inasmuch as they relate to whether a matter is properly before
the court (in which case mootness and standing would fall in the “law”
category). Exercises of “discretion” relate, by contrast, to the management of
matters which are properly before the court.
Regardless of precisely which questions are placed in the “discretion”
category, however, it remains the case that, on balance, the substance of the
matter should be treated as a question of “law”, to be resolved authoritatively
be the appellate court.
 See e.g. Robert Thomas and Joe Tomlinson, “A Different Tale of Judicial Power: Administrative Review as a Problematic Response to the Judicialisation of Tribunals”  P.L.537. For a concrete example, see West Fraser Mills Ltd. v British Columbia (Workers’ Compensation Appeal Tribunal) 2018 SCC 12, 1 SCR 635, where there had been a decision by the Workers’ Compensation Board, a review by the same body and an appeal to the Workers’ Compensation Appeal Tribunal before a first-instance court, intermediate appellate court and the Supreme Court of Canada conducted a judicial review of the Tribunal’s decision.
 See also John M Evans, “The Role of Appellate Courts in Administrative Law” (2007) 20 Canadian Journal of Administrative Law & Practice 1, 29.
 It might also be possible for apex courts to imitate the Supreme Court of the United States and grant permission or leave to appeal only on a specified question. Once the apex court has furnished an authoritative response to this question, the matter can be remitted to a first-instance or intermediate appellate court for disposition in light of the apex court’s authoritative response.
 See e.g. Osborn v Parole Board  UKSC 61;  AC 1115 (entitlement to an oral hearing); R (Moseley) v London Borough of Haringey  UKSC 56;  1 WLR 3947 (common law duty of consultation); R (Lord Carlile of Berriew) v Secretary of State for the Home Department  UKSC 60;  1 AC 945 (proportionality); R (Gallaher Group Ltd) v Competition and Markets Authority  UKSC 25;  AC 96 (duty of consistent decision-making).
 See e.g. Canada (Minister of Citizenship and Immigration) v Vavilov 2019 SCC 65 at .
  1 All E.R. 343, 345.
 For an alternative formulation of this distinction see John M Evans, “The Role of Appellate Courts in Administrative Law” (2007) 20 Canadian Journal of Administrative Law & Practice 1, 33: exercises of discretion “involve the exercise of a primary power by a court, not the application of a meta-rule to determine the validity of another body’s decision”. Evans includes the failure to exhaust alternative remedies in the “discretion” category but although this forms part of judicial discretion to refuse a remedy in judicial review proceedings, I prefer to characterise the rules relating to exhaustion as context-sensitive questions of principle.
This content has been updated on September 11, 2020 at 14:59.