The Doctrine of Legitimate Expectation

In one line

Where a public authority has led somebody to expect a benefit or a procedure, it cannot simply disappoint that expectation without at least hearing them and giving a reason.

In the words a student can write in an exam: the doctrine of legitimate expectation holds that where an administrative authority, by an express promise or by a settled and consistent past practice, has led a person to expect either a substantive benefit or a particular procedure before a decision is taken, that person acquires an interest which the law will protect, so that the authority may not depart from the expectation without giving him an opportunity of being heard and without a reason that is rational and in the public interest; the expectation does not create an enforceable right to the benefit itself, and it yields to a change of policy made in good faith and in the public interest.

The gap the doctrine fills

Consider Sadhana Kale, who has held a licence renewed every year for fifteen years, always without objection. This year the authority refuses renewal without notice and without explanation.

• She has no legal right to renewal, because the statute gives a discretion.
• She has no contract with the authority.
• She cannot rely on estoppel, because no representation was made to her personally on which she altered her position in the technical sense: [Estoppel and Waiver against the Government].
• She may not fall within natural justice on the older view, because nothing of hers is being taken away; a renewal is a fresh grant.

And yet it is obviously unfair. The doctrine of legitimate expectation exists to close exactly that gap: she expected renewal because of fifteen years of consistent practice, and the authority must at least hear her before disappointing the expectation.

How an expectation arises

Two routes, and both must be given.

1. An express promise or representation. The authority publishes a scheme, announces a policy, gives an assurance, or issues a circular stating how applications will be dealt with. A person who comes within its terms may expect it to be applied to him.

2. A settled and consistent past practice. The authority has, over a period, dealt with a class of case in a particular way, and the person could reasonably expect the same treatment.

The expectation must be legitimate, not merely a hope. It is not legitimate if:

• it is contrary to a statute, because no expectation can be founded on an illegality;
• the practice was irregular or unauthorised;
• the person knew the policy was under reconsideration;
• the representation was made by an officer without authority to make it; or
• it is founded on a mere wish rather than on any promise or practice.