Kirsty Hughes (University of Cambridge) has posted Coughlan and the Development of Public Law (Forthcoming in Juss and Sunkin Landmark Cases in Public Law (Hart, 2017)) on SSRN. Here is the abstract:
This paper forms part of an edited collection that examines landmark cases in public law. Taking Coughlan as its focal point it explores the development of substantive legitimate expectations, and how and why the Court of Appeal found in favour of Pamela Coughlan.
Coughlan pitted a vulnerable individual who had been promised something fundamental to her quality of life against the freedom and autonomy of the health authority to make financially robust decisions that would impact upon the provision of services to the broader public. In establishing that a balance must be struck between such interests Coughlan forms an important part of the development of fundamental principles such as fairness and abuse of power, and the proportionality standard of review as part of administrative law. It also brought the relationship between the judiciary and the executive into sharp focus. Should the judiciary enforce substantive promises and preclude the executive from defaulting, or should the judiciary defer to executive decision-making unless the decision is Wednesbury unreasonable? By electing to protect fairness and prevent abuse of power the Court afforded a greater role to the judiciary in holding the executive to account. Thus the judgment forms an important part of the development of substantive judicial review and the protection of the individual.
To fully appreciate how the Court of Appeal came to find in favour of Pamela Coughlan it is necessary to examine both the context in which the case arose and the cases that have followed. The timing of the case and the composition of the bench are an important part of the story behind Coughlan. It did not come out of nowhere; it followed a series of cases in which two prominent lawyers (and later judges) Sir Stephen Sedley and Sir John Laws sought to push or oppose the development of legitimate expectations. In a string of cases whilst they were still at the bar the two barristers went head-to-head on the question of whether authorities could be bound by their expectations, and if so whether this was limited to procedural expectations or whether it also extended to substantive legitimate expectations. As judges they played a fundamental role in developing the doctrine, and Coughlan and the development of substantive legitimate expectations provides an important illustration of the significance of individual judges to the evolution of public law, the role of different constitutional visions and how they change over time
Overall it is by examining the historical context of Coughlan and the developments that have followed that we are able to contextualize the importance of the decision, its legacy, and ultimately to determine whether it can be considered a landmark case.