R. v. North and East Devon Health Authority, ex parte Coughlan

The Court of Appeal clarified the position of the doctrine of legitimate expectation in the common law by examining its nature and the different strains of legitimate expectations. A claim for a public authority to act according to a legitimate expectation arises when the authority promises a member of the public that he or she will be treated in a certain manner, but the authority is instead inclined to act in contravention of that promise or in breach of the legitimate expectation created. Cases where a legitimate expectation will be found to exist can take three forms, the first and third being substantive in nature:[7]

• Category (a): substantive legitimate expectation – change of policy. The first form is a person's legitimate expectation that only extends to an expectation that the individual is entitled to be treated in a manner consistent with the authority's policy in force at the time. In this situation, the authority is only compelled to take into account its previous position or the representation made to the applicant before coming to a conclusion on how it should proceed. If it has done so, the court's power to review the decision is limited to the classic ground of judicial review known as "Wednesbury unreasonableness" or irrationality[7] – in other words, that it is "so outrageous in the defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it".[8] (In a subsequent case, R. v. Secretary of State for Education and Employment, ex parte Begbie (1999),[9] the Court of Appeal clarified that cases fall into this category where a sizeable part of the population is affected and the change of policy involves "what may inelegantly be called the macro-political field".[10])
• Category (b): procedural legitimate expectation – no consultation. The second form occurs when a public authority's promise or practice has induced a legitimate expectation of a procedural nature. An illustration of such a legitimate expectation would be an expectation to be consulted before an authority reaches a conclusion, arising from a representation made by the authority. In such a situation, the court is bound to hold that the procedure be conducted as legitimately expected unless there are overriding reasons to justify abrogating the procedure.[7]
• Category (c): substantive legitimate expectation – promise having the character of a contract. The third form manifests itself when a public authority's promise or practice has resulted in a legitimate expectation of a substantive benefit or a particular outcome of a situation. This type of case is likely to arise when the promise is confined to a few individuals, and thus has the character of a contract.[11] For situations in this third category, such as the present case, the court must determine whether frustration of the expectation would be so unfair as to amount to an abuse of power by the authority. Unless sufficient justification is present, the authority is obliged to act in accordance with what is legitimately expected of it.[7]

Lord Bingham of Cornhill who, as a Lord Justice of Appeal, held in a 1989 case called ex parte M.F.K. Underwriting Agents Ltd. that "[t]he doctrine of legitimate expectation is rooted in fairness"

In adjudicating questions of legitimate expectations, the court has two essential roles. First, it has to determine whether a legitimate expectation exists, and the nature of this expectation. Secondly, it has to determine whether sufficient justification is present to allow the public authority to depart from its expected obligations. The court is the sole judge of these questions. In Ex parte Coughlan the Court of Appeal observed that this role is defined by the requirement for procedural and substantive fairness in public law. The court plays a role of ensuring that such fairness is observed in dealings between public authorities and members of the public, since "reneging without adequate justification, by an otherwise unlawful decision on a lawful promise or practice adopted towards a limited number of individuals" can be considered an abuse of power by an authority.[12] As Lord Justice of Appeal Thomas Bingham held in R. v. Inland Revenue Commissioners, ex parte M.F.K. Underwriting Agents Ltd. (1989):[13]

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. ... The doctrine of legitimate expectation is rooted in fairness.

As a result, the court's role should not be limited to reviewing such cases on the classic Wednesbury ground of review because to limit the review to the rationality of the decision would make the public authority the judge of its own decision. Ordinarily, a justification for acting against a legitimate expectation would often be sufficient and rational from the position of the authority regardless of objective judgment. In Ex parte Coughlan, the Court of Appeal also held that the Wednesbury ground of judicial review is not compromised by the doctrine of legitimate expectation. Rather, the latter complements the classic doctrine by providing a further benchmark where public authorities are held accountable to good standards of public administration.[14]

The Court of Appeal's decision in Ex parte Coughlan left a number of questions unanswered. For one, several commentators have said that the idea of abuse of power is rather vague.[15] Søren Schønberg and Paul Craig posit that while abuse of power was the base the Court of Appeal used in reaching their decision, it is not "an unequivocal guide as to the standard by which the Court will judge the sufficiency of those reasons" given by the public authority.[16] Instead, they suggest that the true rubric for substantive legitimate expectation is proportionality because it is:[17]

... a more precise, structured test of review than the notion of abuse of power applied in Coughlan. When faced with a conflict between a legitimate expectation and an administrative decision purporting to achieve some objective, the court would check whether that action was necessary and suited to attain the objective, and whether it imposed excessive burdens upon the individual.

Iain Steele goes so far as to say: "In Coughlan, proportionality is the test that dare not speak its name".[18]

In her discourse on Ex parte Coughlan, Melanie Roberts opined that the requirement of abuse of power could apply in cases of ultra vires promises as well. In deciding whether to allow a public body which had made a promise beyond its power to renege on its promise, the court would need to balance the public interest and the private interest, legality and certainty. If the private interest outweighs the public interest then the court should hold that it would be an abuse of power for the public body to resile from the representation.[19]

Under category (a) in Ex parte Coughlan, in order to act lawfully the decision-maker must merely have treated the applicant's legitimate expectation as a relevant consideration.[7] However, David Pievsky notes that when coupled with the court's refusal to determine the weight that should be given to the promise as a relevant consideration,[20] the result could be that "in practice a legitimate expectation could well have no effect". Should the decision-maker attach little weight to the promise, thereby ultimately choosing not to honour it, "the decision can only be attacked on Wednesbury grounds. The legitimate expectation appears to have added very little."[21] Steele argues against this, stating that the "very status of an expectation as 'legitimate' necessarily entails that it should be accorded a more than minimal weight".[22]

Instead of Wednesbury unreasonableness as a standard of review for substantive legitimate expectation, some commentators have strongly encouraged the use of proportionality because it is "particularly appropriate where ... conflicting interests must be weighed against one another".[23] While this view is generally accepted amongst academics, Mark Elliott argues that "[t]he rationality and proportionality doctrines are not competitors" and are, in fact, "complementary".[24] On the other hand, Philip Sales and Karen Steyn have observed that the proportionality approach is only appropriate where the public body has "specified legitimate objectives". However, at present, "there is no instrument which defines rights or which specifies legitimate objectives in a way that would lead to the conclusion that application of the proportionality approach would promote conceptual clarity in this area".[25]

Schønberg and Craig have propounded the use of a "balancing approach" should the courts not choose to acknowledge the proportionality test. This would entail the balancing of "the requirements of substantive fairness against any overriding interest relied upon for taking an action". However, they note that this approach is "lacking in precision" and does not state "if judicial intervention presupposes a significant, serious or even extreme imbalance in the individual's expectation".[26]

Melanie Roberts has argued that substantive legitimate expectations are easier to uphold in respect of a promise, in contrast to a policy. This is because an unequivocal representation in the form of a promise made to a person carries "a particular moral force" and because holding the public body to that representation is less likely to have serious consequences for the administration as a whole. Ex parte Coughlan is an ideal substantive legitimate expectation claim precisely because it involved a promise to a few individuals.[27]

On the contrary, since "it is in the nature of general policy that it may be changed", a change in "general policy statements addressed to the world or large numbers of people" are more unlikely to result in legitimate expectations.[28] Although the main difference between promises and policies are that promises are specifically directed to one or a few individuals stating what the public body will do in their particular cases, Roberts has acknowledged that "[t]he difficulty which may arise however is in the categorisation of cases; the difference between a policy and an individual promise may not always be clear ...".[27]

• R. v. North and East Devon Health Authority, ex parte Coughlan [1999] EWCA Civ 1871, [2001] Q.B. 213, Court of Appeal (England and Wales).
• R. v. Secretary of State for Education and Employment, ex parte Begbie [1999] EWCA Civ 2100, [2000] 1 W.L.R. 1115, C.A. (England & Wales).

• Roberts, Melanie (January 2001), "Public Law Representations and Substantive Legitimate Expectations", Modern Law Review, 64 (1): 112–122, doi:10.1111/1468-2230.00312, JSTOR 1097141.
• Sales, Philip; Steyn, Karen (2004), "Legitimate Expectations in English Law: An Analysis", Public Law: 564–653.
• Schønberg, Søren [J.]; Craig, Paul [P.] (Winter 2000), "Substantive Legitimate Expectations after Coughlan", Public Law: 684–701.
• Steele, Iain (April 2005), "Substantive Legitimate Expectations: Striking the Right Balance?", Law Quarterly Review, 121: 300–328.

• Clayton, Richard (March 2003), "Legitimate Expectations, Policy, and the Principle of Consistency", Cambridge Law Journal, 62 (1): 93–105, doi:10.1017/S000819730300624X.
• Forsyth, C[hristopher] F. (December 2011), "Legitimate Expectations Revisited", Judicial Review, 16 (4): 429–439, doi:10.5235/108546811799320754.
• Hilson, Chris (2006), "Policies, the Non-Fetter Principle and the Principle of Substantive Legitimate Expectations: Between a Rock and a Hard Place?", Judicial Review, 11 (4): 289–293, doi:10.1080/10854681.2006.11426493.
• Knight, C. J. S. (January 2009), "Expectations in Transition: Recent Developments in Legitimate Expectations", Public Law: 15–24.
• Pandya, Abhijit P. G. (June 2009), "Legitimate Expectations in English Law: Too Deferential an Approach?", Judicial Review, 14 (2): 170–176.
• Reynolds, Paul (2011), "Legitimate Expectations and the Protection of Trust in Public Officials", Public Law: 330–352, SSRN 1689518.
• Stewart, Cameron (2000), "Substantive Unfairness: A New Species of Abuse of Power?", Federal Law Review, 28 (3): 617–636.
• Vanderman, Yaaser (January 2012), "Ultra Vires Legitimate Expectations: An Argument for Compensation", Public Law: 85–104.
• Ventose, Eddy D. (October 2009), "Legitimate Expectations in English Public Law after Ex p. Bhatt Murphy", Law Quarterly Review, 125: 578–583.
• Watson, Jack (December 2010), "Clarity and Ambiguity: A New Approach to the Test of Legitimacy in the Law of Legitimate Expectations", Legal Studies, 30 (4): 633–652, doi:10.1111/j.1748-121X.2010.00177.x.

• Aronson, Mark I.; Dyer, Bruce; Groves, Matthew (2009), "Procedural Fairness: The Scope of the Duty", Judicial Review of Administrative Action (4th ed.), Sydney: Thomson Reuters (Professional) Australia Ltd., pp. 403–517 at 433–451, paras. 7.120–7.165, ISBN 978-0-455-22557-9.
• Craig, Paul [P.] (2008), "Legitimate Expectations", Administrative Law (6th ed.), London: Sweet & Maxwell, pp. 647–691, ISBN 978-1-84703-283-6.
• Jones, David Phillip; de Villars, Anne S. (2009), "The Duty to be Fair: Audi Alteram Partem", Principles of Administrative Law (5th ed.), Toronto, Ont.: Carswell, pp. 253–393 at 294–301, ISBN 978-0-7798-2126-6.
• Leyland, Peter; Anthony, Gordon (2013), "Legitimate Expectations", Textbook on Administrative Law (7th ed.), Oxford: Oxford University Press, pp. 353–372, ISBN 978-0-19-960166-0.
• Schønberg, Søren J. (2000), Legitimate Expectations in Administrative Law, Oxford; New York, N.Y.: Oxford University Press, ISBN 978-0-19-829947-9.
• Thomas, Robert (2000), Legitimate Expectations and Proportionality in Administrative Law, Oxford: Hart Publishing, ISBN 978-1-84113-086-6.
• Wade, H[enry] W[illiam] R[awson]; Forsyth, C[hristopher] F. (2009), "The Right to a Fair Hearing", Administrative Law (10th ed.), Oxford; New York, N.Y.: Oxford University Press, pp. 402–470 at 446–457, ISBN 978-0-19-921973-5.
• Lord Woolf; Jowell, Jeffrey; Le Sueur, Andrew (2007), "Legitimate Expectation", De Smith's Judicial Review (6th ed.), London: Sweet & Maxwell, pp. 609–650, ISBN 978-0-421-69030-1.