Mardon House

Miss Coughlan was severely ill and disabled woman in long-term care in Mardon House, a purpose- built care home managed by the health authority. She and other patients had been moved from a National Health Service hospital to Mardon House in 1993, having agreed to this upon an assurance by the health authority that Mardon House would be their home for life. In 1998 the authority decided to close Mardon House and transfer responsibility for the care of the patients to a local authority social services department.

It was accepted that this decision could not be impugned on grounds of rationality. Miss Coughlan brought proceedings for judicial review of the health authority’s decision to close Mardon House. Her case that the decision was flawed rested on a number of grounds, one of which was that the ‘home for life’ promise made to her had given rise to a legitimate expectation and that to frustrate it would be an abuse of power. 6 Judgment: The approach to be taken, said Lord Wolf, “recognizes the primacy of the public authority both in administration and in policy development but it insists…

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upon the adjudicative role of the court to ensure fairness to the individual”. Such fairness must include ‘fairness of outcome’. A promise would be more likely to have binding effect if made “to a category of individuals who have the same interest” than if “made generally or to a diverse class, when the interests of those to whom the promise is made may differ or, indeed, may be in conflict. “7 In the present case the promise was limited to a few individuals and what was promised was of great importance to Miss Coughlan.

Whether the decision could nevertheless be justified by an overriding public interest was to be determined, not by the health authority, but by the court, which was not persuaded that any such overriding consideration had been established. The Court concluded that the decision to close Mardon House constituted unfairness amounting to an abuse of power. In addition, the court agreed with the judge in the court below the decision was a breach of Miss Coughlan’s right to respect for her home under Article 8 of the European Convention on Human Rights.

This case illustrated that the courts will occasionally give substantive protection to a legitimate expectation even where the authority has not acted Wednesbury unreasonably. It also illustrates, however, that the courts will do this only exceptionally. The exceptional circumstances which were held to justify this result in Coughlan were the extraordinary importance of what had been promised, the fact that the promise was limited to a small number of individuals, and the fact that there would be no consequence other than financial consequences for the authority in holding them to their promise.

Bias: R v Bow Street Stipendiary Magistrate, ex p. Pinochet (No. 2) [2000] 1 AC 119: This case demonstrated that interests may lead to automatic disqualification for bias. The case concerned the relationship of Lord Hoffman to party (Amnesty International Charity Ltd) related to another (Amnesty International) that has intervened in litigation before him. Even though no allegation of actual bias was made against his Lordship the House of Lords held that the decision of which he had been part could not stand. The fundamental principle was that a person could not be a judge in his own cause.

The question was whether a non pecuniary interest in non financial litigation was sufficient automatically to disqualify a person from sitting as a judge in the cause. The fact that H was not a member of AI but a director of its wholly owned company, which carried on much of its work, was irrelevant if the absolute impartiality of the judiciary was to be maintained. The fundamental principle that justice should not only be done but be seen to be done had to be applied to a judge involved, either personally or as a company director, in promoting the same causes in the same organisation as a party to the action.


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