Substantive Legitimate Expectations: Re-shaping the Boundaries of Judicial Reach in Public Law Remedies in Commonwealth Jurisdictions.

A legitimate expectation is a state of affairs established in a court of law, usually in proceedings for judicial review, in which a public authority that has made a promise or has acted in terms of a regular practice as to the conduct of public affairs is held to the promise or practice, and can only be allowed to resile from the promise or deviate from the practice if it has accorded a beneficiary of the promise or practice a prior hearing. Thus, the presence of a legitimate expectation imports an obligation on the part of an authority to accord a hearing to affected parties, the obligation to observe the audi alteram partem rule (simply the audi rule). For a long time, the only favorable result for a claimant of a legitimate expectation was the setting aside of the decision of the public authority on procedural grounds. This is what is described in this Article as the orthodox approach. With time, courts in some countries, notably England, began enforcing the promises and practices in the sense of granting relief in line with the legitimate expectations, thus granting substantive outcomes. This came amid some spirited reluctance, as it was thought that this was against principle. The main objection was that granting such relief amounted to usurpation of executive power and was judicial overreach into an area reserved for the executive, and therefore breaking the boundaries of separation of powers. Notwithstanding these objections, courts have continued to grant substantive relief. This Article argues that granting substantive outcomes is the proper province of the judiciary and does not amount to judicial overreach, and that substantive outcomes in many cases provide appropriate protection to individuals in cases of broken promises and disappointed expectations. It will be argued that the courts in many countries have in the past, without saying so, in fact granted substantive relief. It is time that an express exposition be made to the effect that substantive relief in cases of proved legitimate expectations is available as a remedy for the guidance of public administrators and the public alike. [ABSTRACT FROM AUTHOR]