Legitimate expectation

[1] The duty to act fairly is a core tenet of administrative law and a predominant feature in the application of the rules of natural justice.

In their elaboration of the doctrine, courts of the United Kingdom adopted other key aspects of judicial review such as Wednesbury unreasonableness, fairness,[2] and abuse of power[3] to justify the existence and the protection of legitimate expectations.

Subsequently, in O'Reilly v Mackman (1983)[4] the doctrine of legitimate expectation was recognized as part of judicial review in public law, allowing individuals to challenge the legality of decisions on the grounds that the decision-maker "had acted outwith the powers conferred upon it".

In response, Lord Justice of Appeal John Laws proposed the aspiration of "good administration" as a justification for the protection of legitimate expectations.

Secondly, allowing public authorities to be bound by their ultra vires representations may potentially prevent them from exercising their statutory powers or duties.

In Stretch v United Kingdom (2003),[23] the European Court of Human Rights declared that whether the legality of the authority's action should be ignored will be determined on a case-by-case basis, and in light of proportionality.

[28] The reasonableness test requires the court to assess the behaviour of the parties in the events which occurred prior to the making of the alleged representation, according to the following criteria: The number of individuals affected may play a part, as courts have found a legitimate expectation to exist when the representation was "pressing and focused" and made to a small group of individuals.

[31] On the other hand, courts rarely find the existence of a legitimate expectation when the representation was one made in general terms to a large and diverse group of individuals.

[40] The courts' protection of procedural legitimate expectations reinforces the notion that administrative decision-makers should be bound by certain representations which they make to individuals who stand to be affected by their decisions.

Although procedural expectations by applicants may manifest in various forms, they are all aspects of the "right to a hearing",[40] which an individual affected by a decision enjoys.

[42] The UK courts developed this doctrine largely to ensure that the rules of natural justice are observed, to encourage good administration and prevent abuses by decision-makers.

[43] A key step in the development of procedural legitimate expectation was the observation of Lord Fraser of Tullybelton in Attorney-General of Hong Kong v. Ng Yuen Shiu (1983)[9] that "when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty".

[44] Despite initial resistance to recognition of this doctrine by the courts,[45] the landmark GCHQ case firmly established procedural protection of legitimate expectations.

The Government of the United Kingdom took swift action to limit the rights of GCHQ employees to join unions, permitting them only to belong to an approved departmental staff association.

The court was of the opinion that if not for national security interests, the application to protect a procedural legitimate expectation through judicial review would have been granted.

The importance of procedural fairness as enunciated in the GCHQ case is further illustrated by Re Police Association for Northern Ireland's Reference (1990).

[46] Applying the principles in the GCHQ case, the High Court of Justice in Northern Ireland held that the Police Association had neither been deprived of a legitimate expectation nor treated unfairly.

The Court of Appeal of England and Wales also protected procedural interests by stating that a public authority cannot, without some form of warning, change a long-standing practice that it is aware an individual has acted in the light of and derived a benefit from, in the case of R v Inland Revenue Commissioners, ex parte Unilever plc (1996).

Effectively, this proposition grants courts the discretion to ascertain whether the public interest is better served by ordering an authority to perform its undertaking than to frustrate it.

"[54][60] When a court protects an applicant's substantive legitimate expectation, it is effectively mandating the outcome of a public body's decision-making process.

Consistency and fairness are reinforced in decision-making processes where the administrative power to alter policy is not used to unduly frustrate legitimate expectations.

[7] The case involved a health authority which resiled from its explicit promise to the disabled applicant that a facility at which she was living would be her "home for life".

[73] In an obiter dictum in Nadarajah v. Secretary of State for the Home Department (2005),[8] Lord Justice Laws set out a more structured form of merits-based review.

In Ex parte Coughlan, the Court of Appeal of England and Wales held that the applicant had a substantive legitimate expectation for the facility at which she was living to be kept open for the rest of her life, which the health authority was not allowed to frustrate.

But the policy implications of such a step are immense, and it may well be that – despite the presence for some years in the rules of a power to award damages on an application for judicial review – a legal entitlement to them cannot now come into being without legislation.The view has been taken that damages are not a suitable remedy when the loss suffered by an individual cannot be assessed meaningfully, but if they can be quantified then ordering an authority to pay compensation is preferable to insisting that it act in a manner that it regards as not being in the public interest.

The applicant brought legal proceedings claiming that the authorities had denied it natural justice by failing to comply with a promise to provide an opportunity for a hearing towards the close of the investigation on whether the duties should be levied, and by departing from certain procedures.

Applying Ng Yuen Shiu and the GCHQ case, the Court agreed that the applicant's legitimate expectation had been frustrated by the failure to conduct a hearing and that it had been unfair for the authorities not to follow the procedures.

[94] As for the protection of substantive legitimate expectations, in Abdul Nasir bin Amer Hamsah v. Public Prosecutor (1997),[95] a criminal case, the Court of Appeal relied on the concept of legitimate expectations to support the overruling of an incorrect legal principle prospectively – with effect from the date of the judgment – rather than retrospectively which would be the usual effect of a judgment.

Ltd. v. Jurong Town Corp. (2011), the High Court doubted whether the doctrine of substantive legitimate expectation is part of Singapore law, but did not discuss the matter fully as neither the respondent nor the Attorney-General had made submissions on the issue.

(f) Even if all the above requirements are met, the court should nevertheless not grant relief if: Judicial precedents have developed the doctrine of legitimate expectation in Bangladesh since 1987.

The Royal Courts of Justice , London . The doctrine of legitimate expectation was predominantly developed by the UK courts .
F. W. Pomeroy 's 1906 statue of Lady Justice on the dome of the Old Bailey in London. The doctrine of legitimate expectation is viewed as an offshoot of natural justice .
The H.M. King George the Fifth Gateway of The Leys School in Cambridge , UK. In a 1999 case, ex parte Begbie , a schoolgirl admitted to the school under a state-funded assisted places scheme claimed her legitimate expectation had been breached after the scheme was cancelled. In its judgment, the Court of Appeal of England and Wales noted it is unnecessary for applicants to show they have relied on public bodies' representations to their detriment to establish legitimate expectations. However, where detrimental reliance is absent, courts will only protect a legitimate expectation in exceptional cases.
Immigration Tower , Hong Kong. In a 1983 case, Attorney-General of Hong Kong v Ng Yuen Shiu , the Privy Council held it was a breach of a procedural legitimate expectation for the Director of Immigration not to fulfil an undertaking to give an illegal immigrant a chance to make representations before deciding to deport him.
Wonford Road in Exeter , UK. Near this place along the same road is the Royal Devon and Exeter NHS Foundation Trust 's Mardon Neuro-Rehabilitation Centre. When it was known as Mardon House, its threatened closure led to a 1999 judgment, ex parte Coughlan , in which the Court of Appeal said a disabled resident's legitimate expectation that she would have a "home for life" there had been breached by a health authority then managing the facility.