The Purpose of Remedial Discretion and the Nature of Public Law Rights

Abstract

Unlike most litigation, the outcome of a judicial review is not a binary question of winning or losing. Success may involve the applicant being consulted on a decision made afresh which remains contrary to their interests. A declaration of unlawfulness may guide future actions of the public authority but leave the act complained of intact. A judicial review applicant may establish that the public authority has acted unlawfully, but the court may exercise its discretion to decline to grant a remedy.