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Proposal 73
Provisions should be adopted spelling out the court's powers on quashing a decision,
including a power, subject to statutory limitations, to take the impugned decision itself.
Interim Report paras 679-680, 690-691, 692.5
certiorari (or "quashing orders") made by the court. CPR 54.19 provides :-
"(1)
This rule applies where the court makes a quashing order in respect of the decision to
which the claim relates.
(2)
The court may—
(a)
remit the matter to the decision-maker; and
(b)
direct it to reconsider the matter and reach a decision in accordance with the
judgment of the court.
(3)
Where the court considers that there is no purpose to be served in remitting the matter
to the decision-maker it may, subject to any statutory provision, take the decision
itself.
(Where a statutory power is given to a tribunal, person or other body it may be the case that
the court cannot take the decision itself)"
A number of respondents opposed this, largely on the basis of the principle that judges
should not exercise powers given to the executive.
While the DOJ supported the
proposal, this was subject to the qualification that the power had to be subject to
stringent statutory limitations.
Notes
Including the Bar Association, one set of barristers' chambers and one solicitors' firm.
Others also supporting it included the APAA, the HKFLA, and the Hon Ms Margaret Ng and a firm
of solicitors. An individual respondent supported it "in spite of misgivings". The Law Society did
not consider it.
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