France Telecom: lessons for UK employers following 'institutional harassment' ruling
Out-Law Analysis | 16 Jun 2017 | 4:18 pm | 6 min. read
The law of legitimate expectation has been one of the more interesting developing areas of the law of judicial review in recent years. It signals a shift away from the more traditional grounds on which to challenge the decisions of public bodies, such as breaches of procedural rules and misdirection on the law.
At its most basic, a legitimate expectation claim is based on the assumption that, where a public body states that it will or will not do something, a person who has reasonably relied on that statement should be entitled to enforce it; if necessary, through the courts. For a legitimate expectation to arise, the public body's statement must be clear, unambiguous and without qualification. Interference with legitimate expectations may be justified on public policy grounds.
Types of legitimate expectation claim
The classic, and strongest, claim is one based on a clear and unambiguous promise, relied on by somebody to their detriment, in circumstances where holding the authority to that promise does not have wide-ranging political or other consequences. These are the 'almost-contract' cases, to adopt the useful definition of Rebecca Williams in a 2016 paper. An example of such is the 1999 Coughlan case, in which a severely disabled woman was promised in clear and unqualified terms a home for life if she agreed to give up her existing accommodation.
The second category is the guidance/instruction cases, in which it is claimed that the terms of published guidance, instruction or policy are so clear and unqualified as to amount to promises of particular treatment.
The third category is those cases in which it can be said that an established practice or policy gives rise to an expectation of consistent or equal treatment. Even if the terms of the policy do not amount to a promise aimed at any person in particular, the routine application of the policy to persons in the same category can give rise to an 'expectation' of similar treatment.
In the 2005 Rashid case, the Court of Appeal held there to be an enforceable legitimate expectation that the Home Office would apply its published policy on immigration to Ms Rashid, even though she was unaware of the policy.
The fact that there is no need to show reliance or detriment in this third category – or even awareness of the policy – has led to debate and uncertainty as to the underlying rationale of legitimate expectations. It has been intimated that cases relying on equal or consistent treatment should be decided on more traditional public law grounds in the future.
In the 2015 Mandalia case, Lord Wilson considered that invocation of the doctrine of legitimate expectation was "strained" in circumstances where the individual was unaware of the policy at the time or where the policy relied on is not aimed at individuals at all; for example, inter-departmental government policy or guidance.
More recently, in the 2016 United Policyholders Group case, Lord Carnwath, sitting on the Judicial Committee of the Privy Council, considered that the attempt to find a unifying doctrine to cover both procedural and substantive legitimate expectation "tended to underplay the important difference that the latter involves ... [namely] potential conflict with the discretion of public authorities to formulate and reformulate policy".
Lord Carnwath went on to say that the court's "understandable concern" in the Coughlan case to find a rational basis for the early substantive expectation cases "could have been addressed in other ways". In particular, he considered that "where there is no knowledge of the policy allegedly disregarded, inconsistency in the application of policy rather than frustration of a legitimate expectation is the appropriate ground of review". This would bring a degree of clarity to the law of legitimate expectations.
Elements of a claim of legitimate expectation
Leaving aside the 'equal treatment' cases, the elements of a claim of legitimate expectation are relatively straightforward.
A statement or promise that is 'clear, unambiguous and devoid of relevant qualification'
This wording has been approved in a number of cases. There has been little doubt about this element of the test, at least in the first category of 'almost contract' cases. It can, however, lead to difficulties in the second category of case, where the public authority provides guidance which transpires to be inaccurate.
In the 2011 Gaines-Cooper case, the claimant taxpayers considered themselves, on the basis of Revenue guidance, to be non-resident for tax purposes. That turned out to be wrong. The Supreme Court held that the guidance was expressly stated to be just that. It was for taxpayers to independently satisfy themselves as to the correct legal position. Lord Mance, however, dissented, saying that the guidance must have been "intended to be useful as well as reliable".
Claimants will therefore need to be cautious when bringing claims on the basis of guidance, manuals or other instructions, even if it appears to be clear and unambiguous. Guidance will often be qualified, or expressed as being opinion only.
Context is also important. In an immigration case in 2014, the Court of Session in Scotland held that statements made in parliament in relation to policy on immigration leave did not amount to a promise that cases would be resolved within a particular time frame. Read in their proper context, the statements were aspirational at best.
Reliance and detriment
Doubts about the need to show detrimental reliance arose as a result of the inclusion of 'equal treatment' cases within the broader doctrine of legitimate expectation. The reclassification of these cases as part of the general public law duty to treat like cases alike, rather than as true legitimate expectation cases, has clarified this. Claimants should therefore be prepared to show both reliance and detriment, save in exceptional cases.
To quote Lord Justice Gibson, in the 2000 Begbie case, it is "very much the exception rather than the rule that detrimental reliance will not be present". In the United Policyholders case, Lord Carnwath preferred a "narrow approach" to the doctrine, with successful cases tending to show a "mutuality of specific commitments".
Recognition of a promise or representation
In 2012, the Privy Council held that a public authority must "take into account the fact that the proposed act will amount to a breach of the promise" where it intends to go back on a legitimate expectation. It has been argued that this creates circularity. It effectively requires the authority to accept that the statements made gave rise to legitimate expectations at law if it is to stand any chance of lawfully going back on those expectations.
In 2015, the High Court of Northern Ireland held that representations made by the government gave rise to a legitimate expectation of a full public inquiry into the death of Patrick Finucane, a solicitor murdered in 1989. The authority was, however, held to be entitled to go back on that promise on public interest grounds, and instead to hold an independent review. Mr Justice Stephens held that it was sufficient that the fact that a commitment had been made was taken into account by the government when it came to its alternative decision.
However, in the United Policyholders case, the Trinidadian government had never accepted that a promise of support made to the policyholders of a major insurance company in the immediate aftermath of the global financial crisis gave rise to legitimate expectations at law. Nonetheless, the Privy Council held that it was entitled to go back on whatever guarantees might have been given.
Judges have debated whether a proportionality test should be applied when a public body decides to go against a legitimate expectation. Lord Carnwath endorsed this approach in the United Policyholders case, but noted that the court would also take into account "any conflict with wider policy issues, particularly those of a macro-economic or macro-political kind".
The point to identify early on is the nature and context of the promises relied upon, and whether going back on these would have any wider reaching implications. In cases involving macro-economic or socio-political considerations, such as the United Policyholders case, the standard of review will be less intense: either low intensity proportionality or bare rationality. In 'almost-contract' cases not involving broader issues of policy, the authority can expect a more intensive standard of review.
Craig Connal QC is a commercial litigation expert at Pinsent Masons, the law firm behind Out-Law.com. Rowan Pennington-Benton is a barrister at 3 Hare Court Chambers. He was junior counsel for the Trinidadian government in the United Policyholders case
France Telecom: lessons for UK employers following 'institutional harassment' ruling