11. Grounds for Judicial Review: Illegality

  • Judicial review is based on technical grounds.
Ultra Vires Jurisdictional and Non-Jurisdictional Error
  • The ultra vires doctrine states that a public body must not go beyond its power.
  • It applies where the court has to decide if a public body has misinterpreted or abused its statutory powers.
  • A jurisdictional error is a mistake of law which takes a public body outside the powers it has been given to enquire into matters and make decisions. The court can review all the vital findings on which the existence of a public body’s jurisdiction depends, including findings of facts. Any misinterpretation or abuse of power made by a public body is capable of being a jurisdictional error. Practical examples are acting in bad faith; failing to comply with the rules of natural justice; taking into account irrelevant considerations or failing to take into account any relevant matters.
  • A non-jurisdictional error of law exists if there is an error of law and the error of law must be on the face of the record of the decision.
Improper Purpose
  • A public body must exercise a discretionary power for the purpose for which it is granted.
  • If a statute states the purposes for which discretion is to be exercised, the courts will treat the stated purposes as exhaustive and will be ultra vires.
Relevant and Irrelevant Considerations
  • A public body must take into account relevant matters and discard anything irrelevant.
  • Where the relevant considerations are expressedly stated in a statute any deviation will make a decision invalid.
Lack of Evidence
  • A public body must base its conclusions of fact on the evidence before it.
  • A public body’s decision can be challenged by judicial review on the ground that it has ignored relevant evidence, or misinterpreted evidence or has unreasonably made a decision which is contrary to the weight of the evidence presented to it during the decision-making process.
Unlawful Failure to Exercise a Discretionary Power
  • When a public body is given a discretionary power it is entitled to formulate and adopt a policy governing its decision-making process, but it cannot adopt a policy which prevents it exercising its discretion by shutting its ears to a certain type of application. It must be prepared to consider every application on its merits and consider whether there are any special circumstances justifying departure from its usual policy.


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