Remedial Discretion Research Articles

Thinking Legally about Remedy in Judicial Review: R (on the application of Imam) v London Borough of Croydon

In R (on the application of Imam) v London Borough of Croydon, the Supreme Court considered the relevance of a local authority's resources on the curial discretion as to remedy in judicial review. This question was addressed in the context of a breach of the authority's duty under section 193(2) of the Housing Act 1996 to secure suitable accommodation for a person with priority need who is not intentionally homeless. Not only is the case a rare example of the Supreme Court examining remedial discretion and mandatory orders at length, but it also signals the importance of legal reasoning about remedy in judicial review. Remedies form the space where courts often determine what effect, if any, unlawfulness may have. This case note presents an analysis of the Supreme Court's reasoning, drawing attention to its implications for certain received views concerning the legal effect of mandatory and quashing orders, and the pragmatic character of its analysis of the relevance of resources.

Constructive Trusts and Discretion in Australia: Taking Stock

In Australia, it is often thought that the decision whether to impose a constructive trust invariably attracts the exercise of remedial discretion. This paper argues that, in reality, the exercise of discretion is highly circumscribed. Further, where such discretion is exercised, it is useful further to distinguish between cases where judges take into account factors affecting justice inter partes, and those where judges also take third party considerations into account. The latter sort of discretion has, to date, only been exercised systemically in one factual scenario. This revelation provides reason to reflect on the status of certain High Court dicta, the relevance of the ‘institutional’/ ‘remedial’ constructive trust dichotomy, and the relationship between rights and remedies.

One Year of Vavilov

A year ago, in Canada (Citizenship and Immigration) v Vavilov, the Supreme Court of Canada fundamentally reshaped Canadian administrative law. Drawing on the approximately 1,500 cases in which this landmark decision has already been cited, I analyze how the Vavilov framework has been operationalized. In turn, I assess the implications of Vavilov for the application of the reasonableness standard, the selection of the standard of review and remedial discretion. Vavilov has made significant changes to the Canadian law of judicial review of administrative action. Reasonableness review is now characterized by justification, demonstrated expertise, responsiveness and contemporaneity. Many decision-makers long accustomed to deference are going to have to recalibrate their decision-making practices. Some deference persists on statutory appeals, as appellate courts classify issues within decision-makers' expertise as questions of mixed fact and law subject to the highly deferential standard of palpable and overriding error. Where, however, appeals are brought on questions of law or jurisdiction, there is much less scope for deference. In terms of remedial discretion, judges have largely been restrained in refusing to remit unreasonable decisions, though there are worrying signs of judicial activism in this regard. Overall, the roll-out of the Vavilov framework has been relatively smooth, with judges abiding by the spirit of Vavilov, that is, the simplification and clarification of Canadian administrative law.

Proprietary Estoppel in Australia: Two Options for Exercising Remedial Discretion

According to Giumelli v Giumelli (1999) 196 CLR 101, where A successfully makes out a proprietary estoppel claim, courts must positively exercise two sets of remedial discretion. The first concerns whether expectation relief is a disproportionate remedy in view of the detriment A suffers. If expectation relief is held to be justified, a second set of discretion obliges judges ‘to consider all the circumstances of the case’, including ‘the impact upon relevant third parties’, to decide whether to enforce A’s expectations in specie or to provide a monetary award. This article discusses the problems with Giumelli, both as to the principle it propounds and as to its application on the facts. It then introduces a fundamental analytical proposition, concerning the relationship between different types of private law remedies and discretion, and explores the two options available for the future development of proprietary estoppel in Australia.

The <i>Vavilov</i> Framework and the Future of Canadian Administrative Law

This paper is the first comprehensive analysis of the Supreme Court of Canada's decision in Vavilov v. Canada (Citizenship and Immigration), 2019 SCC 65. Here, the Supreme Court rewrote its administrative law jurisprudence, aiming to bring clarity and coherence to an area of Canadian law long plagued by uncertainty. I commend the Supreme Court's effort to comprehensively address the issues raised over the last decade by judges, practitioners and scholars but I note that the coalition assembled in Vavilov could fracture in future cases, when the Vavilov framework is sure to come under pressure. In this paper, I lay out the Vavilov framework, describing in Parts I and II the new approaches to selecting the standard of review and to applying the reasonableness standard, before moving on in Part III to discuss how past precedents can be retrofitted to the Vavilov framework, and turning in Part IV to the role to be played by remedial discretion. Underlying my analysis of the Vavilov framework, with its various strengths and weaknesses is a simple question: will the consensus hold? On both selecting the standard of review and applying the reasonableness standard, the majority reasons raise a number of issues, provoke several tensions and create multiple sources of pressure. In future cases, these will have to be addressed. Then, the consensus will be put to the test. In Vavilov, seven judges (on selecting the standard of review) and nine judges (on applying the standard of review) were of one mind. But their ideological preferences may cause them to diverge in cases to come and the same may prove true of lower court judges.

Remedial Discretion and the Prohibition on Face Covering Regulation

In this article, we make the following arguments in relation to the Court of First Instance (CFI) and Court of Appeal (CA) decisions on the constitutionality of the Emergency Regulations Ordinance (Cap 241) (ERO) and the Prohibition on Face Covering Regulation (Cap 241K) (PFCR). First, the CFI should have granted a Suspension Order vis-a-vis the ERO so as to allow the police to enforce s 3(1)(a) of the PFCR — a provision the CFI deemed proportionate — until the final resolution of the appeal. Second, the CA’s reasons for upholding the constitutionality of the ERO are flawed as the CA has conflated public dangers with public emergencies, and the putative judicial safeguards identified are illusory in nature. Third, the CA in effect applied Remedial Interpretations (RI) to impugned legislation in four instances without expressly declaring the law unconstitutional: (1) RI was applied to the ERO such that the Chief Executive in Council is disempowered from amending or suspending its statutory duty to place all subsidiary legislation before the Legislative Council for vetting and repeal by resolution; (2) RI was applied to the ERO such that regulations made under the ERO cannot derogate from the Hong Kong Bill of Rights (Cap 383) unless a public emergency is officially proclaimed, the derogation is strictly required by the exigencies of the situation and non-derogable rights are unaffected; (3) RI was applied to the Public Order Ordinance (Cap 245) such that minor non- compliance with conditions issued by the police would not per se turn a procession into an unauthorised assembly; and (4) RI was applied to s 3(1)(b) of the PFCR such that the facial covering prohibition would not apply to mere passers-by present at the scene of an unauthorised assembly.

Proprietary Estoppel in Australia: Two Options for Exercising Remedial Discretion

Giumelli v Giumelli (1999) 196 CLR 101 indicates that, where A successfully makes out a proprietary estoppel claim, courts must positively exercise two distinct sets of remedial discretion. The first concerns whether expectation relief is appropriate or whether it is a disproportionate remedy in view of the detriment A suffers. If expectation relief is held to be justified, a second set of discretion obliges judges ‘to consider all the circumstances of the case’, including ‘the impact upon relevant third parties’, to decide whether to enforce A’s expectations in specie or to provide a monetary award (whether or not coupled with a charge or lien). Upon closer inspection, the decision in Giumelli and the principle it propounds are deeply ambiguous. This article notes the problems with that judgment, both as to principle and as to its application on the facts. It then introduces a fundamental analytical proposition, concerning the relationship between different types of private law remedies and discretion. In the light of this discussion, the article explores the two options available for the future development of proprietary estoppel in Australia. Ultimately, the present state of the law in relation to the exercise of remedial discretion is unsustainable, and a choice of approach urgently needs to be made.

The disappointing remedy? Damages as a remedy for violations of human rights

After initial optimism, damages have become a disappointing remedy for human rights violations in Canada, New Zealand, South Africa, the United Kingdom, and the United States. Part I of this article relates this disappointment to the modest nature of most awards and the continued impact of qualified and absolute immunities. Part II argues that the answer is not, as some have suggested, to return to tort principles but, rather, to look to public law principles, including international law principles of state responsibility. This allows damages to be placed in the perspective of the state’s obligations to comply with human rights and the availability of alternative and sometimes stronger remedies. A public law approach also allows principles of proportionality to discipline and structure the exercise of remedial discretion. Part III situates damages within a two-track approach to remedies in both domestic and supranational law. Under this approach, courts will play the dominant role in providing remedies including damages to recognize past violations but play a more dialogic role with respect to encouraging states to prevent similar violations in the future.

Illegal copyright works and the remedial discretion of the court

Copyright works are frequently created in breach of one or more laws. These works vary in degrees of wrongfulness and the laws and interests that are impacted by them. The works may contain illegal content, such as child pornography. Laws may also be contravened in the process of creating copyright material, such as a graffiti artist committing trespass. Courts’ remedial responses to these ‘illegal works’ generate important social and policy issues. Granting owners of copyright in illegal works the full panoply of remedies might incentivize or normalise illegal behaviour and effectively reward wrongdoing. And yet, moderating remedies may appoint judges as moral guardians. Focusing on Anglo-Australian law, this article examines whether the unlawfulness infecting illegal works can and should be considered by courts in exercising their remedial discretion in two main contexts. First, it investigates when and why courts have refused to enforce copyright on public policy grounds, and attempts to distil relevant principles from diverse decisions. Second, the article considers the relevance of illegality when courts exercise their equitable jurisdiction, focusing on the remedy of a constructive trust which grants the benefit of copyright to the victim of the author's wrongdoing. The article argues that, in narrow circumstances, courts should have the flexibility to offset the illegality on public policy grounds and by imposing a remedial constructive trust.

Illegal Copyright Works and the Remedial Discretion of the Court

Copyright works are frequently created in breach of one or more laws. These works vary in degrees of wrongfulness and the laws and interests that are impacted by them. The works may contain illegal content, such as child pornography. Laws may also be contravened in the process of creating copyright material, such as a graffiti artist committing trespass. Courts’ remedial responses to these ‘illegal works’ generate important social and policy issues. Granting owners of copyright in illegal works the full panoply of remedies might incentivise or normalise illegal behaviour and effectively reward wrongdoing. And yet, moderating remedies may appoint judges moral guardians. Focusing on Anglo-Australian law, this article examines whether the unlawfulness infecting Illegal Works can and should be considered by courts in exercising their remedial discretion in two main contexts. First, it investigates when and why courts have refused to enforce copyright on public policy grounds, and attempts to distil relevant principles from diverse decisions. Second, the article considers the relevance of illegality when courts exercise their equitable jurisdiction, focusing on the remedy of a constructive trust which grants the benefit of copyright to the victim of the author’s wrongdoing. The article argues that, in narrow circumstances, courts should have the flexibility to offset the illegality on public policy grounds and by imposing a remedial constructive trust.

Remedial Discretion in Constitutional Adjudication: A Codicil

This symposium paper elaborates on two questions raised by the author’s prior work, Remedial Discretion in Constitutional Adjudication. That paper disagreed with calls for a revival of non-retroactive judicial rulings to facilitate more constitutional innovation and argued that the Supreme Court’s practice of developing doctrines that withhold remedies for constitutional violations—e.g., qualified immunity, exceptions to the exclusionary rule, and harmless-error rules—is both sufficient to facilitate constitutional innovation and preferable to reviving non-retroactivity. Of necessity, the paper also developed a theory of when courts may withhold remedies for constitutional violations and when they may not: courts may withhold remedies responsive to claims for the sub-constitutional remedies that function as substitutes for constitutional interests irretrievably lost as a result of wholly-concluded rights violations, but must provide relief when faced with justiciable, properly raised, and meritorious claims for specific relief from ongoing violations. This follow-on paper addresses whether there is a correct way to define constitutional violations as “ongoing” or “wholly-concluded,” and whether the argument that remedies for ongoing violations are mandatory can be reconciled with cases where the Supreme Court did not provide the plaintiffs with immediate relief from systematic constitutional violations. It argues that while there is no ontological line between ongoing and wholly-concluded violations, it is reasonable to understand the doctrines mentioned above as rules that withhold substitutionary remedies for wholly-concluded constitutional wrongs, and that reasonable premises are all that is required for a descriptive theory to be persuasive. It further argues that there is a constitutionally significant difference between declaring unconstitutional a government policy or custom that is causing a claimant ongoing harm and the provision of relief designed to ameliorate the present and future effects of an invasion of rights. Only the former is constitutionally required; courts retain remedial discretion to engage in public-interest balancing with respect to the latter.

Equity’s new darling and the pitfalls of remedial absolutism

This article considers the protection afforded to unsecured creditors in the context of equitable proprietary remedies. First, it argues that recent attempts to cater for hypothetical unsecured creditors when formulating a general rule are unprincipled and result in the interests of other innocent third parties being overlooked. Secondly, it is argued that the best way to accommodate third-party concerns in the context of fiduciary wrongdoing is through the exercise of remedial discretion. Such a framework would match the approach taken to discretionary considerations in the context of other equitable remedies such as injunctions and specific performance.

The harms of remedial discretion

This article raises a dissenting voice against the widespread scholarly view that discretion in remedying legislative infringement of rights can be dialogic, gentle, and cooperative. It focuses on delayed and prospective orders under the Canadian Charter of Rights and Freedoms and the South African Bill of Rights. Scholars have neglected remedial discretion’s significant negative consequences. It harms litigants and other right bearers, potentially producing perverse systemic effects. In particular, keeping a rights-infringing criminal prohibition temporarily in force is unlikely to achieve legal certainty and risks undermining the rule of law. Far from being restrained and deferential, remedial discretion increases the reach of judicial decision-making and enables judges to shape new law more boldly. The widespread exercise of remedial discretion calls for refashioning the conception of a bill of rights’ place in a supreme constitution. If delayed or prospective remedies are sometimes appropriate, they are not something to celebrate.

Remedial Practice Beyond Constitutional Text

This Article advances the comparative constitutional literature by examining the exercise of remedial discretion in rights litigation. It compares how the Supreme Court of Canada and the Constitutional Court of South Africa remedy unconstitutional legislation under their respective, relatively new, bills of rights. It uses an internal legal approach and, rejecting universalism and convergence, it pays attention to difference in constitutional texts. By reporting remedial practices and studying the written and unwritten factors that judges identify as conditioning their remedial determinations, the Article studies the significant gap between authoritative text and practice. In a warning for those who draft bills of rights, who rely on their texts to forecast judicial practice, or who simply aim to delineate and understand the exercise of judicial power under bills of rights, judges’ discussion reveals that the scope of action they perceive as legitimate may differ from what a rights instrument’s text implies. This gap has implications for efforts to classify forms of judicial review as strong-form or weak-form, as it may reduce the effective distance between different models as they appear on paper. The Article identifies shifting and contradictory views about reading-in versus invalidating legislation, and about immediate versus delayed orders. Based on its comparison of judicial remedial practices, the Article flags the unavoidable uncertainty of applying a bill of rights to legislation. It interprets the practices of the two countries’ highest courts as embodying a preference for a judicial posture of legislative engagement over one of constitutional enforcement. This conception of the judicial role emerges from similarities in practice, despite differences in the authorizing constitutional texts. The Article establishes a firm basis for normative evaluation of the legitimacy of judicial remedial discretion exercised with a view to engaging the democratic branches of government.

Administrative Law: A Values-Based Approach

I focus in this essay on judicial review of administrative action, looking at the subject “from the inside, trying to make sense of lawyers’ reasons and arguments as they are actually presented and defended”. Rather than starting from the constitutional basis of judicial review and working backwards to practice, I start by identifying the core values revealed by the practice of administrative law and then work forwards to analyze how they influence the shape and trajectory of the law.My focus is on administrative law doctrine. I contend that administrative law in this sense is best understood by reference to several core values: the rule of law, good administration, democracy and separation of powers. I trace the contours of these values in Part II. These values inform doctrinal choices that courts make in the areas of process, substance and remedial discretion, a body of law considered in Part III. Occasionally they must be complemented by institutional considerations, discussed in Part IV, centering on the need to conserve scarce judicial resources but taking account also of the role of judges in the common law tradition. I take the time in this paper to discuss important areas of administrative-law doctrine and determine whether judicial decisions are influenced by a set of values. Identifying these values is a useful task. Explaining doctrinal rules and outcomes in particular cases is valuable, all the more so if common themes can be traced across very different areas of administrative law. A values-based framework is capable of accommodating the development of doctrine over time, an urgent matter given the rapid growth of the administrative state and legal constraints on it in recent decades. It may also help to account for convergence and divergence across the common-law world: Commonwealth countries have (largely) a common heritage, one which they treat in different ways, but (generally) in a fashion that is comprehensible to all common lawyers, not just the natives of a particular jurisdiction.

The Rock and the Sand: Jurisdiction and Remedial Discretion

This article emerges from the tension between two conflicting fundamental propositions in modern administrative law. On the one hand there “are grave objections to giving the courts discretion to decide whether governmental action is lawful or unlawful: the citizen is entitled … to live under the rule of law, not the rule of discretion.” And on the other hand all the remedies available in the application for judicial review (except damages). Thus an applicant who establishes that a decision is legally flawed may be denied the fruits of that victory by the judge’s refusal to grant an appropriate remedy. But in HM Treasury v Ahmed & Ors.No 2 [2010] UKSC 5 the Supreme Court held once a court had concluded that an act was invalid and so void, it could not thereafter lend that invalid act legal effect de jure or de facto through the exercise of remedial discretion. This crucial conceptual breakthrough significantly restricts the role of remedial discretion has been significantly restricted. The consequences of this are explored including the public interest in avoiding chaos that might otherwise sometimes result if relief is not refused, whether breach of adventitious duties should lead to invalidity and, more radically, whether a class of voidable administrative acts should be recognised.

The Rock and the Sand: Jurisdiction and Remedial Discretion

This article emerges from the tension between two conflicting fundamental propositions in modern administrative law. On the one hand there “are grave objections to giving the courts discretion to decide whether governmental action is lawful or unlawful: the citizen is entitled … to live under the rule of law, not the rule of discretion.” And on the other hand all the remedies available in the application for judicial review (except damages). Thus an applicant who establishes that a decision is legally flawed may be denied the fruits of that victory by the judge’s refusal to grant an appropriate remedy. But in HM Treasury v Ahmed & Ors.No 2 [2010] UKSC 5 the Supreme Court held once a court had concluded that an act was invalid and so void, it could not thereafter lend that invalid act legal effect de jure or de facto through the exercise of remedial discretion. This crucial conceptual breakthrough significantly restricts the role of remedial discretion has been significantly restricted. The consequences of this are explored including the public interest in avoiding chaos that might otherwise sometimes result if relief is not refused, whether breach of adventitious duties should lead to invalidity and, more radically, whether a class of voidable administrative acts should be recognised.

Competition Law Remedies in Europe: Which Limits for Remedial Discretion?

The fragmentation of EU competition law enforcement in various institutions (competition authorities, courts) and legal provisions (Articles 101, 102 TFEU, merger control) have led to the development of ad hoc remedial action without this being backed up by a solid theory of competition law remedies. This study aims precisely to fill this gap by providing the first systematic theoretical analysis of competition law remedies in Europe, including conduct and structural remedies, voluntary and coercive remedies, in the areas of merger control and antitrust. The study challenges the optimal enforcement theory that seems to have provided so far the intellectual backbone of the remedial action of EU competition authorities, although this influence has not been exercised in a systematic and uniform way in all cases. Such theory does not provide an adequate understanding of the remedial discretion of competition authorities and consequently the necessary boundaries of such discretion. The study provides a novel analytical framework integrating both economic and legal principles, taking the view that although deterrence (and economic efficiency) constitutes an important objective of EU competition law enforcement, this should be achieved in the context of established legal understandings of the concept of remedy. More specifically, the paper examines the impact of the economic approach on the linkage between the competition law wrong and remedies as the foundation for an economically inspired but still respectful to legal tradition concept of remedial discretion in EU Competition Law.

Has the Common Law Duty to Give Reasons Come of Age Yet?

This article argues that the scope of the duty to give reasons (in English administrative law) and the consequences of its breach should be aligned with comparable principles of good administration, such as the duty to act fairly. To this end, four specific arguments are advanced: that there should be a general duty to give reasons; that it should be regarded, like the duty to act fairly, as a context-sensitive duty; that its breach should be capable in itself of rendering the decision concerned unlawful; and that, while there may be circumstances in which it is appropriate for remedial discretion to be exercised in a way which avoids quashing the decision, such circumstances are narrower than they might initially appear. Acceptance of these four arguments - which are substantiated by reference to the normative considerations that should properly animate the duty to give reasons - is a precondition for the emergence of a fully mature duty to give reasons.

Proportionality as a Remedial Principle: A Framework for Suspended Declarations of Invalidity in Canadian Constitutional Law

The aim of this article is to provide an analytic framework for the governance of suspended declarations of invalidity in Canadian constitutional law. A suspended declaration is a remedial device by which a court strikes down a constitutionally invalid law, but suspends the effect of its order such that the law retains force for a temporary period. While introduced to Canadian law under circumstances of exigency, suspended declarations have grown to be used liberally by the courts, and the principles that previously confined them have been abandoned. As a result, constitutional rights — including those protected in the Charter of Rights and Freedoms — have sometimes been suspended without just basis. I propose a means to reverse this trend: by adopting proportionality, a core feature of the analytic method used to adjudicate limitations on Charter rights, as a remedial principle guiding the use of suspended declarations. Proportionality analysis is capable of navigating the features of remedial discretion engaged by suspended declarations, while reconciling the latter with Canada’s constitutional principles.