Matters of fact

The recent Court of Appeal case of Connolly & Havering LBC v Secretary of State for Communities & Local Government [2009] EWCA Civ 1059 is a rare example of a decision being quashed on the basis of unfairness arising as a result of a mistake of fact, adding to the possibility that this could become an important ground in the future.

Traditional wariness

The court has long been reluctant to allow an application for judicial review on the basis of a mistake of fact, considering factual questions to be the domain of the public body in question. There is, however, some evidence (to which Connolly adds) that, as the court’s scrutiny of administrative decisions has become more intense, some of that reluctance has also begun to diminish.

The difficulty with allowing applications for judicial review on the basis of mistake of fact was usefully summarised in E v Secretary of State for the Home