In Search of a Doctrine: Mapping the Law of Legitimate Expectations
Groves and Weeks (eds), Legitimate Expectations in the Common Law World, Hart, 2016, Forthcoming
26 Pages Posted: 12 Feb 2016 Last revised: 11 Mar 2018
Date Written: February 11, 2016
Over the last 45 years legitimate expectations has emerged as a significant field of English administrative law. However, despite this long history courts remain actively engaged in a search for principle. The nature and bounds of this field are steeped in intolerable uncertainty, the field is in a perpetually unsettled state, and answers to foundational questions remain unresolved. This paper seeks to answer the most basic question facing the field: what is the doctrine of legitimate expectations? It does so through a process of legal categorisation, mapping the different types of cases in which the concept of legitimate expectations has been deployed. Through this process the paper reveals that many categories of cases commonly analysed as legitimate expectation cases are not properly categorised as such. This lack of discipline over deployment and application of the doctrine, ie when the doctrine should “bite”, is a principal reason for the present state of the jurisprudence. This paper works towards identifying the paradigm case of legitimate expectations. Once the paradigm case is pinned down, we may develop a series of legal tests to govern legitimate expectation cases. Identification of a set of generally applicable tests holds out the prospect of bringing consistency, predictability and coherence to the field, and saving it from its current unsatisfactory state.
Keywords: administrative law, public law, judicial review, legitimate expectations, estoppel, legal categorisation, promises, policy, taxonomy
JEL Classification: K23
Suggested Citation: Suggested Citation