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Can legitimate expectations be defeated?

The question of whether a legitimate expectation has arisen will depend on a number of factors. This is particularly true of substantive legitimate expectation, where the threshold that the claimant must satisfy is especially high. The factors that the Court will consider include:

  • whether the promise was clear and unequivocal.
  • whether the decision-maker had the power to make the promise (see R v North and East Devon Health Authority ex p Coughlan [2001] QB 123). If not, it is unlikely that a claim for legitimate expectation will succeed, although there are exceptions where human rights are engaged.
  • whether the promise was made by a person with sufficient authority to commit the decision-maker to the proposed course of action (R (Bloggs 61) v Secretary of State for the Home Department [2003] EWCA Civ 686).
  • whether the person to whom the promise was made acted upon that promise and is in a worse position as a result of those actions (R v Secretary of State for Education and Employment Ex p. Begbie [2000] 1 WLR 1115).

Where the Court is satisfied that a legitimate expectation has arisen, it may still allow the decision-maker to go back on its word (i.e. to defeat the legitimate expectation) where there is an overriding public interest in allowing the public authority to do so.

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