Coughlan
R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213
Parties and outcome
- Claimant
- Pamela Coughlan (respondent)
- Defendant
- North and East Devon Health Authority (appellant)
- Interveners
- Secretary of State for Health; Royal College of Nursing
- Outcome
- Coughlan won: the Authority’s appeal was dismissed, leaving the order quashing the closure decision in place.
Citations in this work
Wednesbury
57 There are at least three possible outcomes. (a) The court may decide that the public authority is only required to bear in mind its previous policy or other representation, giving it the weight it thinks right, but no more, before deciding whether to change course. Here the court is confined to reviewing the decision on Wednesbury grounds ( Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223 ). This has been held to be the effect of changes of policy in cases involving the early release of prisoners: see In re Findlay [1985] AC 318 ; R v Secretary of State for the Home Department, Ex p Hargreaves [1997] 1 WLR 906 . (b) On the other hand the court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. Here it is uncontentious that the court itself will require the opportunity for consultation to be given unless there is an overriding reason to resile from it (see Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 ) in which case the court will itself judge the adequacy of the reason advanced for the change of policy, taking into account what fairness requires. (c) Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive , not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.
Padfield
Lord Templeman, at pp 864-866, reviewed the law in extenso, including the classic decisions in Laker Airways Ltd v Department of Trade [1977] QB 643 ; Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 ; Congreve v Home Office [1976] QB 629 and HTV Ltd v Price Commission [1976] ICR 170 *246 ("It is a commonplace of modern law that such bodies must act fairly... and that the courts have power to redress unfairness": Scarman LJ at p 189.) He reached this conclusion, at pp 866-867: "In principle I see no reason why the [taxpayer] should not be entitled to judicial review of a decision taken by the commissioners if that decision is unfair to the [taxpayer] because the conduct of the commissioners is equivalent to a breach of contract or a breach of representation.
Wednesbury
One, not considered in the Wednesbury case [1948] 1 KB 223 (even though it was arguably what the case was about), was the use of a power for a collateral purpose.
Wednesbury
72 A full century ago in the seminal case of Kruse v Johnson [1898] 2 QB 91 Lord Russell of Killowen CJ set the limits of the courts' benevolence towards local government byelaws at those which were manifestly unjust, partial, made in bad faith or so gratuitous and oppressive that no reasonable person could think them justified. While it is the latter two classes which reappear in the decision of this court in the Wednesbury case [1948] 1 KB 223 , the first two are equally part of the law. Thus in R v Inland Revenue Comrs, Ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545 a Divisional Court (Bingham LJ and Judge J) rejected on the facts a claim for the enforcement of a legitimate expectation in the face of a change of practice by the Inland Revenue. But having set out the need for certainty of representation, Bingham LJ went on, at pp 1569-1570: "In so stating these requirements I do not, I hope, diminish or emasculate the valuable, developing doctrine of legitimate expectation. If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would often be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the expectation, particularly if he acted on it. If in private law a body would be in breach of contract in so acting or estopped from so acting a public authority should generally be in no better position. The doctrine of legitimate expectation is rooted in fairness."
Cited by
- Bibi
21.. Sometimes, as in the first category of outcome analysed in Ex parte Coughlan [2000] 2 W.L.R. 622 (para. 57) the answer to this first question is dispositive of the case. It seems to us that the present authorities in that group of cases (in particular In re Findlay [1985] AC 318 , 338) make it generally appropriate to allocate the issue of legitimacy to this initial question. In other words, if the public body has done nothing and said nothing which can legitimately have generated the expectation that is advanced to the court, the case ends there. It seems likely that a representation made without lawful power will be in this class. In the present case the answer to the first question is not in dispute and is in favour of the applicants. The interrelation of the second and third questions
- Nadarajah
50.This view was doubted or questioned by a number of distinguished academic lawyers, and the issue was squarely confronted in Ex p. Coughlan [2001] QB 213, described in Mr Underwood's skeleton argument as "[t]he high water mark for protection of substantive legitimate expectation". The applicant was a very seriously disabled lady who lived together with three fellow-patients in Mardon House, which was a purpose-built NHS facility where she and the others had been promised a "home for life" by the health authority. But in October 1998 the health authority decided to close Mardon House. This decision was challenged in judicial review proceedings. There were other points in the case but for our purposes the issue was whether the decision was unlawful because it involved a violation of an enforceable legitimate expectation enjoyed by the applicant to the effect that the promise of a home for life at Mardon House would be kept. The judge at first instance, Hidden J, quashed the closure decision. He held, among other things, that the health authority had shown no overriding public interest such as might justify its breaking its promise and the decision was in any event flawed by want of a proper assessment of the applicant and other matters.
- Kirkham (2006)
- Abraham (2008)
- Bancoult (No 2)
133.The final issue which I want to discuss is that of legitimate expectation. All members of the Court of Appeal were in agreement that the Chagossians had a legitimate expectation that they would be permitted to return, and that the prohibition contained in the 2004 Orders in Council brought about a breach of that. The principles governing what is now known as substantive legitimate expectation were outlined by the Court of Appeal in R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213 in a judgment which has now become very familiar. They have not yet been considered in depth by the House, although in R (Reprotech (Pebsham) Ltd) v East Sussex County Council [2003] 1 WLR 348, 354, para 34 Lord Hoffmann accepted Coughlan as correct. I would therefore prefer not to express a concluded opinion on the limits of the concept. I am content, however, for present purposes to accept that breach of such an expectation can give rise to an actionable claim and to consider the issue on that basis.
Mr Crow accepts for present purposes the Court of Appeal's decision in R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213 (while reserving the right to argue in another case that it was wrongly decided).
All this is exhaustively and authoritatively discussed by the Court of Appeal in R v North and East Devon Heath Authority, Ex p Coughlan [2001] QB 213, 238-251, paras 51-82 inclusive.
- Paponette
34. The more difficult question is whether th e government was entitled to frustrate the legitimate expectation that had been cr eated by its representations. In recent years, there has been consid erable case law in England a nd Wales in relation to the circumstances in which a public authorit y is entitled to frustrate a substantive legitimate expectation. Some of it was re ferred to by Warner JA in her judgment. The leading case is R v North and East Devon Hea lth Authority, Ex p Coughlan [2001] QB 213. Lord Woolf MR , giving the judgment of the Court of Appeal said, at para 57: “Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrat e the expectation is so unfair that to take a new and differe nt course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the re quirements of fairness against any overriding interest relied upon for the change of policy. ”
45. There is a further point. In Bibi, Schiemann LJ said that an authority is under a duty to consider a legitimate expectation in its decision making process. He said: “49. Whereas in R v North and East Devon Health Authority , Ex p Coughlan [2001] QB 213 it was common ground that the authority had given consideration to the promises it had made, in the present cases, that is not so. The authority in its decision making process has simply not acknowledged that the promises were a relevant consideration in coming to a conclusion as to whether they should be honoured and if not what, if anything, should be do ne to assuage the disappointed expectations. . . .
61. A dissenting opinion in the Judicial Committee is no occasion for a detailed re- examination of the law of legitimate exp ectation – though I cannot but note Jack Watson’s illuminating article in the Decembe r 2010 SLS Legal Studies, “Clarity and ambiguity: a new approach to the test of legitimacy in the law of legitimate expectations”, vol 30 No 4, p 633 inviting (p 651) the Supreme Court to revisit the issue and suggesting that me antime it is “a patchwork of possible elements to consider” rather than an organised system of rules, and “little more than a mechanism to dispense palm-tree justice”. For presen t purposes I am content simply to take the law as stated in the brief extracts from the judgments in R (Bancoult) v Secretary of State for Foreign and Comm onwealth Affairs (No 2) [2009] AC 453 and R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213 (see paras 28 and 34 of the Board’s judgment), to look at this case in the round and to address the composite question: was the imposition of reasonable charge s here so unfair as to amount to an abuse of power? (It seems to me unhelpful, certainly in the particular circumstances of this case, to divide this critical question into various sub-questions and allocate to these different burdens of proof.)
- Morris (2019)
40. In Paponette & Ors v Attorney General of Trinidad and Tobago [2010] UKPC 32, Lord Dyson summarised the principles to be applied when considering the circumstances in which a public body may be entitled to frustrate a substantive legitimate expectation. “34. The more difficult question is whether the government was entitled to frustrate the legitimate expectation that had been created by its representations. In recent years, there has been considerable case law in England and Wales in relation to the circumstances in which a public authority is entitled to frustrate a substantive legitimate expectation. Some of it was referred to by Warner JA in her judgment. The leading case is R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213 . Lord Woolf MR, giving the judgm ent of the Court of Appeal said, at para 57: “Where the court considers that a lawful promise or practice has induced a legi timate expectation of a benefit which is substantiv e, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.” …
45. There is a fu rther point. In Bibi, Schiemann LJ said that an authority is under a duty to consid er a legitimate expectation in its decision making process. He said: “49. Whereas in R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213 it was common ground that the authority had given consideration to the promises it had made, in the present cases, that is not so. The authority in its decision making process has simply not acknowledged that the promises were a relevant consideration in coming to a conclusion as to whether they should be honoured and if not what, if anything, should be done to assu age the disappointed expectations. …