The law of legitimate expectations relates to circumstances where a public body has in some way led someone to believe that the authority will act in a way that is beneficial to them.  The Court of Appeal in R (Patel) v General Medical Council [2013] EWCA Civ 327 pieced together the evolving jigsaw of case law to produce a comprehensive summary of the elements required to establish substantive legitimate expectation.

Key Points

  • Substantive legitimate expectation is an expectation to enjoy a substantive benefit or advantage promised by a public body, as distinct from a procedural legitimate expectation, for example to be consulted or in some way involved in a decision-making process.
  • Substantive legitimate expectation requires a clear, unambiguous and unqualified statement which is a pressing and focussed representation.
  • It may be possible for a decision-maker to justify frustrating an established legitimate expectation where there is an overriding public interest.
  • In such a case, the court will weigh up the expectation against the justification and decide whether frustrating the expectation would be so unfair that a new and different course would amount to an abuse of power.

Background

The appellant, Dr Patel, wanted to qualify as a doctor. Prior to beginning a course at an overseas university, he requested confirmation from the General Medical Council ('GMC') in the UK that the course would be accepted as a primary medical qualification for the purposes of his registration as a doctor in the UK. The GMC gave this confirmation based on its policy towards acceptable overseas qualifications then in force.

Subsequently, the GMC amended its policy. Based on the new criteria, the GMC told the appellant that his qualification was not acceptable.

The appellant brought judicial review proceedings on grounds including that the GMC's decision to refuse to accept his qualification was unfair because of the assurance that the GMC had given initially, which he argued gave rise to a substantive legitimate expectation that had been breached. This was rejected in the High Court. (A number of other challenges were made, including unlawful fettering of discretion, irrationality and proportionality. These were rejected by both the High Court and in the Court of Appeal.)

Court of Appeal decision

Disagreeing with the High Court, the Court of Appeal found in the appellant's favour on the substantive legitimate expectation ground. It reviewed the emerging law in this area and, in so doing, identified the requirements for establishing a substantive legitimate expectation and consolidated them in its judgment:

A clear, unambiguous statement is necessary.

  • The representation should be 'clear, unambiguous and devoid of relevant qualification' (R v IRC ex p MFK Underwriting [1990]). This is a high primary threshold, which parallels the certainty required in the test for procedural legitimate expectation, namely a "specific undertaking" to "a particular individual" by which a procedure's "continuance is assured".
  • The Court of Appeal asked the objective question, "how, on a fair reading of the statement, it would have been reasonably understood by those to whom it was made" (emphasis added). In this case, it was a question of whether the GMC's statement was reasonably understood as confirmation that the qualification was acceptable provided it was obtained in reasonable time.
  • The party seeking to rely on the representation should have "placed all his cards on the table". In the appellant's case, he had made his plans clear on a repeated basis. As such, the GMC should have been aware of the potential consequences of its assurance.
  • Context is the key factor into which all these considerations flow. Given the nature of the correspondence in this case, it was reasonable to conclude that the representation was going to be taken as unequivocal.

A pressing and focussed representation is required to uphold the expectation. Although there is no limit to the potential number of beneficiaries, the larger and more diverse the group, the more likely a public interest would supervene to defeat the expectation.

Reliance on the representation cannot be contrary to terms of a statute. In this case, the statute in question did not exclude the operation of substantive legitimate expectation. The Court of Appeal considered that any statutory duties should have been exercised in line with the principles of substantive fairness.

A decision-maker can justifiably frustrate expectations if overriding public interests are proved. The court should aim to achieve substantive fairness by weighing the established legitimate expectation against the potential justification of public interests. Central to this balance is whether denial of the expectation is so unfair that it would equate to an abuse of power. The burden of proof to displace the expectation is on the decision-maker. The standard of review applied to this balance is decided by the court, meaning that the rigour of review is case-specific. Influencing factors include the degree to which the decision is of a political nature, in which case a less intrusive standard of review would be employed. By contrast, if the facts hold fewer implications for the wider public, the standard of review may well be more intense, as in the appellant's case.

Here, the Court of Appeal considered that the GMC's justification for introducing a new policy with immediate effect without any consideration of transitional provisions for those who would lose eligibility under the new criteria was insufficient. There was no evidence that the GMC had considered the potential effects of the amendments. The GMC was aware that its officials had, on many occasions, given indications of the acceptability of qualifications without also stating that the criteria were subject to change. Nevertheless, when amending the criteria, the GMC took no account of how previous representations may have become inaccurate or misleading.

The effect of the appellant's substantive legitimate expectation was that the GMC could not refuse to recognise his qualification without this being so unfair as to amount to an abuse of power.

Comment

The Court of Appeal's decision is important for its laying out, in a consolidated way, the requirements for substantive legitimate expectation, as expressly distinct from procedural legitimate expectation.

Unfairness in failing to uphold a substantive legitimate expectation is more likely to be established where:

  • there is an express statement made by a public body which could only have been understood in one way;
  • it is given to an individual or small group;
  • the importance of reliance on the expectation to the appellant can be in no doubt (detrimental reliance, though not a necessary component, could lend weight in the balance of fairness); and
  • the subject of the decision is not macro-political so upholding the appellant's expectation is unlikely to affect more than a small group of people.

Notably, the court will apply a potentially high level of scrutiny of representations given by public bodies to individuals or small groups of individuals.

Although the court is perhaps less likely to intervene in the commercial context where the person to whom the representation has been given is a company, in principle the considerations should be equivalent where the effect of the public body reneging would have a material impact on the business concerned. However, the Court of Appeal's decision in Patel does not substantively change the position that legitimate expectation (substantive or procedural) can be difficult to prove and requires a strong evidential base (as the appellant had here with his emails with the GMC). Even with such a base, where the public body has properly considered the reasons for, and implications of, making a decision and can provide evidence to this effect, this could demonstrate a public interest justification, which may well override the expectation.