Commentary

I11.373 Remedies other than by way of appeal against determination

IHT, trusts and estates

I11.373 Remedies other than by way of appeal against determination

I11.373 Remedies other than by way of appeal against determination

Judicial review

The remedies by way of judicial review (for a declaration, certiorari, mandamus and prohibition) are not an alternative to the statutory appeal procedure1. The courts have commented adversely upon attempts so to use them2. However, they are available, for example, where a statutory body exceeds its authority or fails to observe a statutory obligation, or where a Tribunal fails to act judicially. They are discretionary remedies3.

The following are illustrations of occasions where orders have been made:

  1.  

         Declaration—(the court makes an order declaratory of the law or rights in issue). HMRC issued notices requiring returns which were outside the authority of the statute; these were declared to be invalid4.

  2.  

         Mandatory order (formerly known as mandamus)—(an order of the court in the form of a command requiring a person or Tribunal to perform its duties). Where a body of General Commissioners exceeded its jurisdiction by wrongly allowing the inspector to be present when they were privately considering their determination, the Crown consented to an order that the Commissioners rehear the case5. (In the same case it was also agreed that their original decision should be subject to an order of certiorari to quash their decision).

  3.  

         Quashing order (formerly known as certiorari)—(an order of the court to quash an order made by an inferior Tribunal in excess of its jurisdiction). An order of certiorari was upheld in the House of Lords where General Commissioners gave the Crown no

To continue reading
View the latest version of this document, as well as thousands of others like it, sign in to TolleyLibrary or register for a free trial