Doctrine of Legitimate Expectation: Origin, Development and Current Trends

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Doctrine of Legitimate Expectation: Origin, Development and Current
Trends
Mangala Wijesinghe, Senior Lecturer
Faculty of Law
General Sir John Kotelawala Defence University
Abstract
The Doctrine of Legitimate Expectation has its origin in English Administrative Law as a
ground of judicial review of administrative action. It seeks to protect a person’s procedural or
substantive interests when a public authority resiles from a representation it had made. Founded
on the Principles of Natural Justice and Fairness, this doctrine aims to prevent public authorities
from abusing their powers by acting contrary to what it had induced a person to expect, and to
ensure good administration.
The criteria applicable in determining whether a legitimate expectation was present, would
be that; the representation must be clear, unambiguous, and has no qualification; the expectation
must be induced by the conduct of the public authority; the representation must be made by a
person who has actual or apparent authority; and the representation must be applicable to the
aggrieved party. Accordingly, a legitimate expectation does not arise when a representation is
made ultra vires of a public authority’s statutory powers, i.e. when the public authority lacked
legal power to make the representation. Further, expectations are not legitimate when they require
a public authority to act in breach of its statutory duty.
The English Courts have recognized both procedural and substantive aspects of legitimate
expectations. A procedural legitimate expectation rests on the presumption that a public authority
will follow a certain procedure in taking a decision, while a substantive legitimate expectation
arises when a public authority makes a lawful representation that a person will receive some
substantive benefit. In determining a claim for an alleged breach of a legitimate expectation, a
review court will examine three key aspects i.e. whether a legitimate expectation had arisen under
the circumstances; whether it would be unlawful for the public authority to frustrate such
expectation; and what remedies are available to the aggrieved person, if it is found that the
authority had done so. Although, procedural legitimate expectation has been recognized in many
common law jurisdictions, in contrast, substantive legitimate expectation has not been universally
recognized. For instance, it has been given effect to in Singapore but not in Australia.
Most cases of breach of legitimate expectation are cases where the expectation is confined
to one person. Nevertheless, the courts have found a legitimate expectation to exist when the
representation made was pressing and focused and had been made to a small group of people. But
the courts rarely find the existence of a legitimate expectation when the representation made had
been in general terms and to a large and diverse group of persons. However, there are instances
where an individual had successfully sought relief on behalf of a significant group of people.

In deciding whether the expectation held by the aggrieved party is legitimate, the courts
will consider whether the expectation was, under the circumstances, reasonable at the time it was
formed. Courts have held the person’s reliance on the representation as a relevant consideration
when determining the existence of a legitimate expectation. The role of reliance may be
distinguished between weak reliance and strong reliance, with reference to decided cases.
After determining that a person’s expectation is legitimate, the court then should decide
whether there is an overriding public interest justifying the public authority's decision to resile
from its representation, or whether the principle of fairness dictates that the representation should
be given effect to. When the court establishes that a public authority's decision had breached a
legitimate expectation, it may annul the decision and order that the authority fulfil the expectation:
The court may also order that the public authority should merely reconsider its decision, taking
into account the person's legitimate expectation. However, at present English Law does not
generally recognize paying monetary compensation as a remedy for breaches of Public Law.
A current trend with regard to Doctrine of Legitimate Expectation in certain common law
jurisdictions is that the existence of an unincorporated international treaty may give rise to a
legitimate expectation on the part of the citizens that the government will observe the terms of the
treaty in its acts affecting the citizens. In Sri Lanka where the Fundamental Rights Jurisdiction has
enlarged the scope and ambit of judicial review of administrative action, the courts have held that
a legitimate expectation may give rise to a judicially enforceable legal right in a citizen.
Key Words: legitimate expectation, judicial review, administrative action, public authority, ultra
vires, aggrieved party