Legit Expec and Proc Imp

• What is a legitimate expecation?

  • A legitimate expectation may arise from an express undertaking, a policy or by previous practice - A public body has said or done something that created an expectation that they will act in accordance
  • Relates to the act of decision-making
  • Where a legit expec. is claimed on representation or promise, these must not conflict with applicable statutory provisions
  • Representations must be clear
• What type of expectations are there?

  • Substantive - If some1 has a legit expec. of a substantive benefit then there may be a requirement that the benefit be respected
  • Procedural - If some1 is given a legit expec. as to the procedure to be followed, then that procedure must be followed
• GCHQ Case

  • Union claimed a legit expec had been set that they would be consulted about proposed changes to the T&Cs for civil servants (Procedural)
  • Substantive - IF unions had expectations that no changes would be made to the T&Cs of their member's employment
• What were the facts of R v North & East Devon Health Authority, ex parte Coughlan [2001] ?

  • Coughlan was a woman who required extensive care at a long-term care facility
  • The local health authority wanted to move Coughlan to a new facility and in order to try and persuade her to do so, promised her and some others that they would have a home for life in the new facility and because of this they moved her
  • Five years later, the health authority decided to close that facility, concluding it had become too expensive to run
• What was the decision in R v North & East Devon Health Authority, ex parte Coughlan [2001]?


  • The Court concluded that a legitimate expectation had arisen:
  • The authority had made a clear and unambiguous promise to Coughlan
  • Coughlan was part of a readily identifiable group.
  • Coughlan relied upon that promise, by moving into the new facility
  • There was not an overriding public interest, in all the circumstances, to justify frustrating the legitimate expectation
• Enforcement

  • The Courts are more willing to enforce procedural expectations by requiring the public body to go through the procedure promised
  • Substantive legitimate expectations are more difficult, these being cases where a definitive, substantive outcome has been promised
• What does the Coughlan test ask?

  • Was a promise or representation made to the affected party?
  • Does that party form part of a defined group?
  • Did that party rely upon that promise to their detriment?
  • Is there an overriding public interest which would justify frustrating that legitimate expectation?
• What are the requirements for procedural impropriety?


  • Statutory procedural requirement
  • Common law duty of fairness
• Statutory Procedural Requirement

  • Has Parliament set down a particular procedure for the public body to follow in making a decision
  • If a procedure is specified but the body doesn't follow it then there's a break of statutory requirement
  • If there's no procedure, consider the common law rules of natural justice
• What are the elements of a common law duty of fairness?

  • Existence of the duty of fairness
  • Level of duty owed
  • Content of duty
• Existence of the duty of fairness?

  Since Ridge v Baldwin [1964] AC 40, and Re HK (an infant) [1967] 2 QB 617, a duty to act fairly applies to all public law decision-making
• What are the elements of the level of duty owed?

  • Level of fairness owed
  • Right to receive such treatment depends on the level of duty owed
• What factors are necessary for level of fairness as set down by Durayappah 1967 and Lloyd 1987?


  • The character of the decision-making body
  • The statutory or other framework in which it operates
  • The nature of its powers and the kind of decision being made
  • The seriousness of allegations or sanctions which can be imposed
  • The impact or repercussions for the individual
• What rights are available in terms of the level of duty owed?

  • The right to know the case against one
  • The right to a hearing/to be heard
  • The right to a decision maker free from from bias
  • The right to reasons for decision
• Content of duty

  • There may be a difference between a new applicant and an applicant who has held a position/license or received funding before
  • In McInnes 1978, the Court made a distinction between application and revocation and with a licence the level of fairness requires was less than that of revocation
  • But Abbey Mine Ltd 2008, set out that when there's competition fairness requires “each applicant be treated like every other"
• How has legitimate expectation been developed by the courts since 1985?

  • Courts expanded the scope of legitimate expectation beyond procedural fairness to encompass substantive rights
  • Courts introduced a threefold test to determine the protection of legitimate expectations:
  • Was there a promise or representation by the public authority?
  • Did the individual reasonably rely on the promise or representation?
  • Would it be unfair for the authority to act contrary to the expectation?
  • Balances public interest against legitimate expectations