The multiple doctrines of legitimate expectations

Journal article

Legitimate expectations arise in a variety of different ways and yet ‘the doctrine of legitimate expectations’ is still regarded as one amorphous doctrine. Any underlying theory which attempts to unify diverse case law will thus inevitably be fairly general. For example, the case law contains references to ‘fairness’ and ‘abuse of power’ as the basis for upholding legitimate expectations, but as Schiemann and Laws L.J.J. have pointed out, such terms cannot provide specific guidance on the facts of a particular case. And in particular, the area has historically been driven principally by the remedy available (procedural or substantive protection) rather than by the cause of action giving rise to the remedy in the first place. My argument is that we should now break free of this focus on the remedy and realise that there may in fact be three different varieties of legitimate expectation which have different conceptual and normative bases, which thus require different ‘ingredients’ to be made out by the claimant and which can each be protected in a variety of ways. Some expectations are really like contracts, containing an exchange of promises between the public authority and the private party. Others fit more naturally into administrative law’s usual territory, as part of the process of monitoring the use and operation of policies by public authorities. Finally, a third category of ‘legitimate expectations’ do not in fact contain any particular expectation or reliance on the part of the claimant at all. Instead, in this third category, the public authority has been inconsistent, not over time, but across cases, so that the claimant has been treated unequally in comparison with others in the same situation. Currently these three very different situations are elided under the one very general heading of ‘legitimate expectations’, but separating out these three different kinds of claim could provide benefits both for courts and for administrative decision-makers by enhancing the clarity and predictability of the area. This thesis will be defended in two stages. Section I will separate out the three different normative bases which can be found to underlie the current unified doctrine of legitimate expectations, and the ways in which these normative differences ought to have an impact on the operation of the law. Section II will then examine potential objections to this disaggregation of the doctrine.

Authors: Williams, R

• Publication status: Published
• Peer review status: Peer reviewed
• Publisher: Sweet and Maxwell
• Journal: Law Quarterly Review
• Volume: 132
• Pages: 639-663
• Publication date: 2016-10-01
• Acceptance date: 2016-03-17
• ISSN: 0023-933X
• Language: English