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Legitimate Expectation and Estoppel

Chapter · April 2017

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 LEGITIMATE EXPECTATION
ADMINISTRATIVE LAW

The doctrine of Legitimate Expectation is developed in the English Administrative Law to ensure procedural
fairness; upholding the rule of law. Originating from ECJ in the aspect of legal certainty, it is slowly replacing
estoppel as it is a private law concept which is undesirable in Public Law.

The doctrine of Legitimate Expectation initially emerged as a result of the rule of Natural Justice of the
“right to have a fair hearing” (audi alterem partem). (Ridge v Baldwin) was unclear to the application of
Natural Justice; however (Schmidt) answered this where an alien’s leave grant was revoked by Home Office.

There are two aspects of legitimate expectation:

Firstly, Substantive Legitimate Expectation arises where a representation or promise to allow certain things
raises an expectation which, if not fulfilled, would give rise to Judicial Review; (GCHQ).
Secondly, Procedural Legitimate Expectation arises where the administration announces a policy or rule
which gives rise to a reasonable belief that the policy/rule will not be changed unless given a fair hearing.
(Ag of Hong Kong)

In (ex-parte Baker) Simon J identified 4categories of cases in which the concept of L.E may be applied.

Firstly, where the applicant asserts a substantive right in the form of an entitlement (ex-parte Khan)
However, an overriding interest may disqualify the existence of L.E (ex-p Coughlan) (ex-p US Tobacco).

Secondly, in where applicant seeks to assert that a fair procedure will be followed in view of his rights
(Schmidt).
Third, where legitimate expectation is used to refer public body must act fairly.

Fourth where a body has developed an established procedure which has to be followed as result of previous
promise or course of dealing by which it acts.(AG of Hong Kong); (GCHQ); (ex-parte Liverpool Taxi)

However, difficulty arises in reconciling L.E with public bodies fettering away from their decisions which was
concerned in (ex-parte Richmond No.1). This was answered in (Unilever), where it was held that
unreasonableness/irrationality would give rise to legitimate expectation. This was affirmed in (Hargreaves).
Finally, it is the (Coughlan) decision that has application to JR, in which the court would have to-
‘weigh the requirements of fairness (Craig and Schonberg’s analysis).

The Public Law doctrine of L.E could be contrasted with Private Law doctrine of estoppel.
Estoppel arises where there is a reliance on a promise or representation & thus suffering detriment which
would stop the body from exercising its strict legal rights (Newham LBC). If the promise/representation is
beyond scope of public body’s power, ultra vires doctrine applies & no remedy is available.

“…and my success (in my task) can only come from Allah”- The Glorious Quran (11:88)
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 Two situations may arise where estoppel would apply:
Firstly, where administrative body asserts to exercise a power it simply does not possess. (Balbir Singh).
Secondly, where a powerful public body makes a representation to use that power in an unlawful or ultra
vires manner (Hodgson Ltd)

Since estoppel is a private law concept, it has very limited application in the administrative law of UK.
It is applied to an exceptional class of cases such as where:

i. Member of the public had been misled by the actions of officials in (Robertson).
ii. Relying on a representation made by an officer having ostensible authority (Lever Finance Ltd);
iii. Procedural irregularities (Wells);
iv. Public body acts in private capacity (Crabb v Arun);
v. Statute tries to invalidate an act which is ultra vires (Ejaz).

The use of the doctrine of estoppel is limited; if it was allowed, it would be the collapse of the ultra vires
doctrine (MAF v Hulkin); & it would also be harmful to the public at large as held in (Western Fish).
In (ex-parte Hamble) Sedley J pointed out that estoppel requires knowledge of reliance upon the
representation, whereas substantive legitimate expectation does not.
The concept of L.E was recognised in (Ex-parte Richmond)

In (ex-parte Reprotech) it was held by Lord Hoffman held that private concept of estoppel should not be
applied to Public Law. He agreed that there was an analogy between the two but nothing more than a mere
analogy. According to him, ‘the time has come for it to stand upon its own two feet’s’.

Professor Craig offered three crucial comments in the light of (ex-parte Reprotech):

Firstly, the shift from Estoppel to L.E does not touch the substance of the jurisdictional principle.
Secondly, we should be aware of the analogy between the two.
Finally, Estoppel cases are now considered by the courts under L.E (Flanagan)

Finally, it seems from (ex-parte Reprotech) that estoppel has almost become a dying concept in English
Administrative Law. However, the Human Rights Act1998 seems to be providing the basis for estoppels to
arise against public authorities. (Rowlan) (Stretch v UK). Nevertheless, due to the above authorities cited it
can be said that estoppel has largely been replaced by legitimate expectancy.

776 words

“…and my success (in my task) can only come from Allah”- The Glorious Quran (11:88)
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