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Judicial Review

Clive Lewis

Introduction

Jersey is currently considering the introduction of procedural rules regulating applications for judicial review. The importance of reviewing these rules has been recognised by the Jersey Court of Appeal in Burt v The States of Jersey where Le Quesne JA stated that there was a "dire need of review here if only to cope with the necessity for expedition in determination by the Court of the validity of governmental decisions which are under challenge". [1] One possible source of inspiration for Jersey is the rules governing judicial review in England. Judicial review in England is intended to be a speedy mechanism of enabling courts to review the legality of actions of public bodies. There are two stages, firstly, consideration of whether to grant leave, and secondly, if leave is granted, the substantive hearing. Evidence is by way of affidavit evidence and cross-examination and discovery are rarely allowed in practice [2] . Applications must be made promptly and in any event within three months of the decision under challenge.

The current rules are contained in Order 53 of the Rules of the Supreme Court and section 31 of the Supreme Court Act 1981. In addition, a considerable body of case law (not all of it reported) and practice has grown up in the nearly 20 years since the English rules were amended. I set out below the principal features of the English procedure indicating some of the issues that Jersey may wish to address when it formulates its own judicial review procedure.

Availability Of Judicial Review

Applications for judicial review may only be made in a public law matter, that is in a case involving a challenge on public law grounds to the actions or omissions of a public body. Order 53, however, achieves that result by a cumbersome route which is largely the result of history. In English law, the position is as follows. Special prerogative remedies have always been available in English law to control public bodies; these are the remedies of certiorari (to quash a decision), mandamus (to compel the performance of a public duty) and prohibition (to restrain unlawful action). These remedies can now only be sought by way of an application for judicial review: see Order 53 r.1(1). In addition, ordinary civil actions could be brought seeking an injunction or a declaration that the decision of a public body was invalid (and, in such an action, there would be automatic discovery, longer time limits, no need for leave and so forth). The current English Order 53 r. 1(2) therefore makes the civil remedies available in the Order 53 procedure and does so by linking the availability of the civil remedies to the nature of the matters in respect of which the prerogative remedies could be granted and the nature of the bodies against whom those remedies lay (i.e. they can be sought in a public law matter and against a public body).

Jersey does not have a separate system of prerogative remedies. Its judicial review procedure would therefore need to begin with a definition of the circumstances in which applications for judicial review can be made. The sensible approach, in the author’s opinion, is for the Jersey rules to provide that the new process for applying for judicial review is available where any remedy or order is sought in respect of public bodies acting in a public law matter. What is a public law matter can be determined by the nature of the matters in respect of which relief is sought (is it a public law challenge?), the nature of the persons and bodies against whom relief is being sought (is it a public body?), and all the circumstances of the case.

Leave

The requirement of leave is contained both in Order 53 and in section 31 of the Supreme Court Act 1981. The great majority of English practitioners favour the retention of the leave requirement as does the English Law Commission which recently reported on the judicial review procedure. The general belief is that the leave requirement does enable a large number of hopeless cases to be filtered out and many cases can be resolved with minimum use of judicial resources and delay. The English courts have established that the applicant must show an arguable case that a ground for review exists.

The procedure in England for seeking leave is ex parte and, at the first stage, is done way of consideration of the papers by a judge in chambers (unless an oral hearing has been requested). If refused on a consideration of the papers, it can be renewed orally. In practice, however, oral hearings are frequently requested by the applicant at the first stage (instead of a paper application). If an oral application is made, the putative respondent is usually notified (and frequently attends to make submissions) and judges often adjourn to enable a putative respondent to explain why leave should not be granted. Further, a judge may adjourn consideration of a paper application to open court and invite the putative respondent to attend [3] . These oral leave hearings can often be "mini-substantive hearings" (a practice direction limits the time for oral argument to 20 minutes unless the hearing has been specifically listed with a particular time slot). They often prove a quick and speedy means of disposing of applications. In many cases, leave is refused (so the administrative body knows that it can proceed with its decisions, rather than waiting for a substantive hearing of the application). There are cases, of course, where leave is granted even after an oral hearing. There is, then, a degree of extra cost and time involved in that there will have been an oral hearing which must now be followed by a substantive hearing. These practices have grown out of the experience of the courts rather than any specific provision in the rules. If Jersey is to adopt the English approach, however, there is much to be said for making express provision in the rules for such procedures providing that flexibility is maintained.

Standing

Order 53 and section 31 of the Supreme Court Act 1981 simply provide that an applicant must have sufficient interest in the matter to have standing to bring an application. The English courts have held, however, that consideration of standing involves whether an applicant involves a two stage test. At the leave stage, there is a threshold test intended to filter out the hopeless cases where the applicant clearly has no standing because he is a "busybody" or where existing case law makes it clear that the applicant’s interest does not generate standing [4] . If leave is granted, then, at the substantive hearing, standing may be reconsidered to see if that applicant should be granted relief on the facts of the case. In practice, standing at this stage shades into consideration of the discretion to grant or refuse relief, the courts asking whether the applicant’s interest justifies the grant of relief.

Interim Relief

Interim relief is available in judicial review proceedings. It is not normally granted ex parte in England (even though the application for leave is ex parte, and the grant of leave can operate as a stay) except in situations of urgency and then only for short periods. To avoid doubt, it may be sensible to state this in the Rules. Further, there are dicta in the House of Lords that, in urgent cases, interim relief can be granted ex parte and before leave is given [5] . The test for granting interim relief is the American Cyanamid test: firstly, is there a serious issue to be tried, and secondly, does the balance of convenience favour the grant or refusal of interim relief? That in turn requires the court to consider, first, whether damages would be an adequate remedy and secondly, whether the wider public interest favours the refusal or grant of interim relief. The test is, in my opinion, more appropriately left to be developed by case law rather than in the rules of procedure. There is also a growing body of case law on the situations in which it is appropriate to require cross-undertakings in damages whether in favour of the respondent or third party. [6]

Delay

The need for a short time limit in public law matters is generally accepted in England. The rules governing delay are not entirely consistent although the case law has clarified matters. The time limit is both a rule of practice (Order 53 r. 4 applications must be made promptly and in any event within 3 months) and provided for in section 31 of the Supreme Court Act 1981 (if undue delay, the application can be refused if the grant of relief would cause substantial hardship, substantial prejudice to the third parties’ rights or is detrimental to good administration). The courts have read the rules and the Supreme Court Act together, and also added their own case law. The position on delay is that an application for leave must be made promptly and in any event within three months unless there is good reason for extending the time limit. An application that was not made promptly or was made outside the three months may still be an application made with undue delay; relief can therefore be refused even if an extension of time was granted, if the grant of relief would cause substantial hardship, substantial prejudice to the third parties’ rights or is detrimental to good administration; this is the result of an attempt to "marry" the different wording of Order 53 with that of section 31 Supreme Court Act 1981 [7] . Further, a finding that the applicant acted within time at the leave stage may be reconsidered at the substantive hearing [8] . Irrespective of the rules on delay, the English courts have a discretion to refuse relief at the substantive hearing, even if the application was made promptly, if the grant of relief would unfairly prejudice third parties or be detrimental to good administration. [9]

My observations on the position in relation to delay are these. If Jersey adopts the English model, it will need to ensure that its provisions reflect the content of both Order 53 and the Supreme Court Act 1981; it would not be appropriate for Jersey simply to apply Order 53 not least because there are additional provisions in section 31 which need to be taken account of together with the case law that has developed. The reference to "acting promptly" is unduly vague and unhelpful and a specific time limit is preferable.

Setting Aside Leave

There is no express provision in Order 53 for setting aside leave whether it has been granted on the papers or at an oral hearing without the presence of the respondent. As a matter of practice, the courts have been prepared to entertain applications to set aside, but only where it was plain and obvious that there was no arguable case, or if the applicant had not exhausted alternative remedies or was guilty of material non-disclosure, or if the respondent was prepared to reconsider the decision. It seems sensible specifically to provide in the rules for those cases where setting aside leave is to be possible and to provide a time limit (e.g. 28 days from date of service) within which an application must be made.

Discovery, Evidence And Cross-Examination

In England, evidence in judicial review is by way of affidavit evidence only. There is no oral evidence unless the court orders that a person is to be cross-examined on his affidavit. Discovery is not automatic but can be ordered. In practice, discovery and cross-examination are rarely sought and even more rarely allowed in judicial review cases. There are two reasons. First, the rules provide that discovery may only be ordered if that is necessary for fairly disposing of the case. In theory, that is the same position as in ordinary litigation. Secondly, however, the courts themselves have developed a body of case law indicating that discovery and cross-examination will not normally be granted. It is that case law which in practice has led to discovery and cross-examination rarely being an issue in England. The courts proceed on the basis that judicial review is different from ordinary litigation and because of that they are able to confine themselves to considering the affidavit evidence. A number of principles have been laid down in the case law, for example that the discovery must go to an issue that the court could determine on judicial review. As the court is most usually concerned with errors of law interpreting statute or regulation, it can therefore refuse discovery of documents which might relate to what the parties did but cannot assist the court in resolving the issue before it. Further, the court will not allow an applicant discovery in the hope of establishing that some material in an affidavit is incorrect; there must be some material outside the affidavit suggesting this before the courts will order discovery [10] . This approach does mean, of course, that respondents have to be sure to explain their actions fully in any affidavit evidence [11]or, in theory, they run the risk that the courts might infer that there was no lawful reason for their decision. The grant of leave and the fact that the applicant may have standing are regarded as irrelevant to the question of discovery. Jersey will want to consider whether it wishes to adopt England’s relatively restrictive approach and, if so, whether to provide specifically in the rules for such an approach. The Jersey courts have considered the scope of discovery in a public law case where limited discovery was ordered as there were matters which called for explanation and the application for discovery was not a fishing expedition. [12]

Exclusivity Of Judicial Review

The next question is whether the rules are to be drafted to prevent an applicant bringing a claim by simple action (in accordance with Rule 6 under Jersey’s rules) thereby enabling the applicant to avoid the procedural limitations (leave, time-limits etc.) contained in the new rules. In English law, an applicant could formerly seek a declaration by way of an application or by bringing an ordinary civil action for a declaration. In the latter case, the usual rules on automatic discovery and longer time-limits applied, there was no need to obtain leave and so on. The wording of Order 53 does not prevent an applicant continuing to use the ordinary procedure. The House of Lords, however, has held that it would "as a general rule, be contrary to public policy, and as such an abuse of the process of the court" to allow an applicant to bring an ordinary writ action when the matter was a public law matter which should have been brought by judicial review [13] . The court will strike out the action under Order 18 r. 19. The parallel in Jersey law would be to strike out a simple action on the grounds of abuse of process under Rule 6/13(1)(d) of the Royal Court Rules 1992.

The decision in O’Reilly v Mackman has been a controversial decision. One view is that limiting access to the ordinary action procedures is a necessary corollary of having a specialised judicial review procedure with safeguards - there would be little point in having such a procedure if these safeguards could be circumvented by the simple expedient of starting an ordinary civil action. This is the view taken by the Law Commission and others and I share this view. The other view is that the decision is wrong and individuals should have a choice. Problems have, in my view, arisen for two principal reasons. First, in England it is sometimes genuinely difficult to know whether or not a body is amenable to judicial review. There are non-statutory self-regulatory bodies (e.g. Panel on Take-overs and Mergers and the Advertising Standards Authority) whose status is unclear. An applicant may reasonably but mistakenly not proceed by judicial review when in retrospect he should have done so. Second, there are situations where public and private law merge: one and the same set of facts may involve both private law rights (if a public body has entered into a contract) and public law rights (a claim that the body has acted ultra vires its statutory powers).

In the opinion of the author, it is necessary to have a general rule that public law challenges be brought by way of judicial review. In the majority of instances it will be clear that a challenge is a public law challenge and that the speedy, affidavit based procedure should be used for such challenges. Some flexibility, however, needs to be built in for those cases where the applicant reasonably believed that the matter was not a public law matter and allowing the case to proceed would not harm or prejudice third parties or the needs of good administration. A respondent/defendant would be entitled to raise the appropriateness of bringing the challenge by ordinary action rather than judicial review; the court would either allow the action to proceed or direct that the matter be dealt with as if it had been begun by the judicial review procedure thereby avoiding automatic discovery, oral evidence etc. A further instance where flexibility is desirable is where the court is satisfied that the claim ought to be allowed to proceed because it is just and convenient to do so either because the claim raises issues of public and private law or for some other substantial reason. A claim may raise public issues (was a particular public decision invalid?) and private law issues (was any duty of care owed in respect of the exercise of those powers?). Again, the sensible approach would not be to strike out such claims. Rather, the court could give appropriate directions, for example directing that certain issues be dealt with, in effect, as a preliminary issue, and (if appropriate) as if those issues had been brought by way of an application for judicial review. This would allow the court to identify any public law issue which needs to be determined before any private law claim gets fully under way and allow those public law claims to be dealt with by the speedy, affidavit based procedure of judicial review.

Clive Lewis is a barrister of 4/5 Gray’s Inn Square, Gray’s Inn, London WC1R 5AY.