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What is the doctrine of 'legitimate expectation'?

The doctrine of legitimate expectation is one of the Court’s controls over the exercise of a decision-maker’s powers. The general principle is that the Court will intervene to prevent a decision-maker from making a particular decision (or will quash a decision that is already made) where the decision-maker’s prior actions or inactions would make it unfair for that decision to stand (R (on the application of Bhatt Murphy) v The Independent Assessor [2008] EWCA Civ 755 at para 50).

 There are two broad categories of legitimate expectation:

  • procedural legitimate expectation. This arises where the decision-maker makes an express promise to do particular things during the decision-making process (e.g. a promise to consult) or where the decision-maker has consistently done those things in the past (see, in the context of procedural legitimate expectations Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 HL 401, and R v Inland Revenue Commissioners, ex p Unilever Plc [1996] STC 681 CA for substantive legitimate expectation). The Court will find a procedural legitimate expectation where the practice is so well established that it would be unfair or inconsistent with good administration to allow the public authority to depart from that practice.
  • substantive legitimate expectation. It arises where the decision-maker  has promised to keep an existing policy in force, or to do a particular thing,  for a specific party or group, and that particular party or group would be substantially affected by a decision to go back on that promise (e.g. a decision to go back on a promise made to a care home resident that he or she can stay there for the rest of their life).

A substantive legitimate expectation will only be found in exceptional circumstances (R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755, para 41) – where allowing the public authority to go back on its word would be so unfair so as to amount to an abuse of power. This is a high threshold for claimants to satisfy (R (Godfrey) v Southwark LBC [2012] EWCA Civ 500, para 51)  and a substantive legitimate expectation  will only be found where the promise is “pressing and focussed”, directed at a particular individual or group, and is clear, unambiguous and without relevant qualification. Ordinarily, the person to whom the promise was made must also have taken action in reliance on that promise which has placed them in a worse situation than they would have been had they not taken that action (R (Bibi) v Newham London Borough Council [2001] EWCA Civ 607 paras 29 and 30).

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