Ian Le Marquand

Introduction

The very first issue of the Jersey Law Review[1] contained an excellent article by Clive Lewis on Judicial Review in England in which he also made suggestions as to the possible way forward in Jersey.  He subsequently came to Jersey and met with the members of a working party and produced the initial form of the proposals for the Jersey procedures in the Royal Court.

I became involved in seeking to turn these English-style proposals into Jersey style draft rules and, thereafter, together with the then Attorney General, Mr. Michael Birt, Q.C. in seeking to pilot these draft rules through the necessary consultation process so that they could finally be considered by the Superior Number of the Royal Court.  During the consultation process it became apparent that the existing Court of Appeal Rules would not be adequate to deal with the various appeals to that court which would be required.  Accordingly, I produced the first draft of the required Rules for the Court of Appeal.

The outcome of all this was that the Royal Court (Amendment No. 15) Rules 2000 (R & O 10/2000) were made by the Royal Court on 20th January 2000 and came into force on 3rd April 2000 and that the Court of Appeal (Civil) (Judicial Review) (Jersey) Rules 2000 (R & O 11/2000) were made by the Court of Appeal on the 26th January 2000 and also came into force on 3rd April 2000.

To assist readers of this article in understanding the whole picture and, in particular, in relating this article to that of Mr Clive Lewis, I am following the subject headings introduced by him as far as I am able.  Where there is a right of appeal to the Court of Appeal I have dealt with this in the section to which the right of appeal relates.

Availability of judicial review

There was a very real difficulty in defining the ambit of the availability of judicial review under the new procedures.  The difficulty was that, unlike England, Jersey did not have the well developed remedies of certiorari, mandamus and prohibition as points of reference.  It was decided that the new procedure would only operate in civil proceedings (Rule 12A/ 1(3))[2] and that it would not be available in a case in which a right of appeal already existed against the decision of a public body (Rule 12A/1(1)).[3]  It was correctly pointed out by the Law Society that the statement in Rule 12A/1(1) that “an application is made in a public law matter where the application relates to the validity of a judgment, decision, order or other action of a public body, or seeks relief to compel a public body to perform a duty owed by it in public law or seeks to restrain a public body from acting in a way that would be invalid” was partly circular because of the lack of further definition of “a duty owed by it in public law”.  However, as nobody involved in the consultation procedure could come up with a better definition of an “application made in a public law matter” than that which was originally offered by Mr. Clive Lewis and which is set out above, that definition remained.  Rule 12A/1(2) provides some assistance by setting out some criteria but clearly the Bailiff will have to decide as to whether or not any particular matter falls within the definition.

The question will no doubt arise as to the procedure to be followed in civil proceedings which are of a judicial review nature but which do not fall within the terms of Rule 12A/1.  One example might be an attack upon the decision of the committee of a private club to expel a member.  If such a dispute is open in Jersey to challenge before the Royal Court by way of a type of judicial review, then it will have to be brought under the procedure, with all its defects, which existed prior to these rules.

Leave

The lack of any requirement for the obtaining of leave was one of the major defects of the previous system.  That is now rectified by Rule 12A/2(1).[4]

Under the terms of Rule 12A/2(2)[5] the application for leave is made ex parte to the Bailiff, sitting as sole judge and constituting the Inferior Number of the Royal Court, by filing the appropriate notice together with an affidavit setting out the facts relied on.  The Bailiff can deal with the matter ex parte without a hearing unless a hearing is requested, and can direct that any person against whom relief is sought be present at a hearing to make representations (Rule 12A/2(3)).[6]

Rule 12A/2 confers other powers upon the Bailiff at this stage including:-

(a)        the power to grant leave in relation to only part of the application (Rule 12A/2(4));

(b)        the power to allow amendment of the applicant’s statement (Rule 12A/2(5));[7]

(c)        the power to adjourn the application for leave until after a period for appeal has ended (Rule 12A/2(7)); and

(d)        the power to impose terms as to costs and security for costs and the power to specify the person on whom documents shall be served (Rule 12A/2(8)).[8]

One of the issues which arose during consideration of the new procedures was whether any application for leave which was refused or granted upon conditions unacceptable to the applicant should be capable of being renewed to the Inferior Number of the Royal Court.  It was decided that it would be better for the Bailiff to sit as sole judge and constituting the Inferior Number so that there could then be a direct right of appeal to the Court of Appeal.  It then became clear that new rules would have to be drafted for the Court of Appeal in order to deal with such appeals.  There are two rights of appeal which are contained in Rules 3 and 4[9] of the Court of Appeal (Civil) (Judicial Review) (Jersey) Rules, 2000.  Rule 3 relates to an appeal against a decision made by the Bailiff ex parte and Rule 4 relates to an appeal either by the applicant or by a respondent against a decision made by the Bailiff inter partes.

Standing

Rule 12A/2(2)(a)(ii) requires that the notice of an application for leave contain a statement of the interest of the applicant in the matter to which the application relates.

Under the terms of Rule 12A/2(6)[10] the Bailiff shall not grant leave unless he considers that the applicant has a sufficient interest in the matter to which the application relates.

Interim Relief

Under the terms of Rule 12A/2(9)[11], where leave to apply for judicial review is granted, the Bailiff may direct that the grant operate as a stay of any proceedings to which the application relates or the Bailiff may at any time make such interim order on such terms and conditions, including conditions as to the giving of cross-undertakings in damages whether in respect of any person against whom relief is sought or any other person, as he considers appropriate.

Under the terms of Rule 12A/2(10)[12] notice of the application for a stay or interim order has to be given to any person against whom relief is being sought and to any other person who would be directly affected by the grant or stay or interim order two days before the hearing of the application, except in cases of urgency.

Under the terms of Rule 12A/2(11), in cases of urgency where the application has not been served upon all interested parties, the Bailiff may grant a stay or make such interim order for such period and on such terms and conditions as he thinks fit.

Delay

There was significant discussion about the form of the provisions in relation to delay which are now contained in Rule 12A/3.  Rule 12A/3(1)[13] provides that, subject to paragraphs (2) and (3), an application for leave to apply for judicial review shall be made promptly and in any event not later than three months from the date when grounds for the application first arose.  However, it is not safe for an applicant to conclude that he has three months in which to make the application because under the terms of Rule 12A/3(2), the Bailiff may refuse an application made within the period of three months if he is satisfied:

(a)that the application is not sufficiently prompt; and

(b)        that if the relief sought were granted, on an application made at this stage, it would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or be detrimental to good administration.

On the other hand, Rule 12A/3(3)[14] allows an application to be made after the end of the three month period in certain circumstances.  Rule 12A/3(4) allows the court which hears the substantive application for judicial review to reconsider whether there was good reason for extending the period of three months under Rule 12A/3(3).

Discovery, evidence and cross-examination

Early in the drafting process, there was a separate rule which dealt solely with these matters.  However, subsequently it was decided that this should be combined with a provision for a summons for directions and the result of this is Rule 12A/7.

Under the terms of Rule 12A/7(1)[15] the applicant shall, within fourteen days from either the date on which the time limited for the filing of the respondent’s affidavits shall expire or the date by which every respondent shall file his affidavit, whichever date is the earlier, apply to the Bailiff in Chambers for a day to be fixed for the hearing of a summons for directions, for the hearing of such interlocutory applications as the applicant may wish to make and for the fixing of the day for the hearing in relation to the application for judicial review.

Under Rule 12A/7(2), (see also footnote 15) any respondent who intends to make any interlocutory application in relation to the application for judicial review shall, within the period of fourteen days mentioned in paragraph (1), apply to the Bailiff in Chambers for a day to be fixed for the hearing of a summons for the hearing of such interlocutory applications.

Interlocutory applications are defined in Rule 12A/7(3).[16]

Under Rule 12A/7(4)[17] all the parties shall, at least two clear days before the hearing of the summons for directions, furnish to the other parties and file their estimate of the length of the hearing of the application for judicial review.

Rule 12A/7(5)[18] provides a high test in relation to the making of any interlocutory order.  That test is that no order shall be made unless the Court considers that, for some substantial reason, the application cannot be disposed of fairly unless such an order is made.

Exclusivity of judicial review

This issue is dealt with in Rule 6/13A of the Royal Court Rules.

Rule 6/13A(1) deals with the situation in which proceedings which ought to have been brought by way of judicial review are brought by action or representation.  Any person against whom relief is sought in such a case may apply to the Court for an order striking out the action or representation as an abuse of process.  The Court will normally order striking out but there is a saving provision under sub-paragraphs (a) and (b) where the Court is satisfied that leave would have been granted to move for judicial review if such an application had been made.

Under Rule 6/13A(2), the application for a striking out must be brought within 28 days and notice of the application for striking out must be served on all other parties.

Under Rule 6/13A(3), where the action is not struck out by reason of sub-paragraph (a) or (b) of Rule 6/13A(1), the Court can convert the original action or representation into an application for judicial review under part XIIA.

Rule 6/13A(4) deals with the situation in which an action or representation contains both matters which can properly be brought in that way and matters which would normally be dealt with by way of an application for judicial review and the Court can strike out the part which would normally be brought by way of judicial review.  Again the application must, under Rule 6/13A(5) be brought within 28 days and all other parties must be served with notice of the application.

Under Rule 6/13A(6), where matters which have been improperly brought as part of an action or representation are not struck out, the Court may give a variety of procedural directions as to the way in which the part of the action which would normally be brought by judicial review can be dealt with.

Setting aside of leave

Under the terms of Rule 12A/6[19], any party who did not appear before the Bailiff to make representations prior to the granting of leave may, within fourteen days from the date upon which he is served with notice of the application for judicial review, apply to the Bailiff, sitting as sole judge and constituting the Inferior Number of the Royal Court, to have the leave set aside.  The notice of application for setting aside of leave is accompanied by an affidavit verifying the facts relied upon and both the notice and the affidavit are served on the applicant and on any other person who has been served with the application for judicial review.

Again, the device of the Bailiff sitting as sole judge and constituting the Inferior Number of the Royal Court has been used so that the right of appeal lies directly to the Court of Appeal.  That right of appeal is dealt with under Rule 5 of the Court of Appeal (Civil) (Judicial Review) (Jersey) Rules, 2000[20].  The appeal can be brought either against an order setting aside or against an order refusing to set aside leave.

The general procedure after the granting of leave

This is dealt with under Rules 12A/4, 12A/5 and 12A/10.

Under Rule 12A/4(1)[21] and (2)[22] the notice of the application for judicial review together with supporting documents must be served through the Viscount within fourteen days from the date on which leave was granted on all persons directly affected and, where they relate to proceedings in or before a court, upon the Greffier and, where any objection to the conduct of the judge is to be made, upon the judge.

Under Rule 12A/4(3)[23], unless the Bailiff has otherwise directed, there must be at least ten days between the service of the document and the hearing and under Rule 12A/4(4), the applicant shall, within two days after service, furnish a copy of the documents served to the Greffier with a copy of the record of the Viscount.

Under Rule 12A/4(5)[24], the Court may, at the hearing, direct that additional parties be served.

Under Rule 12A/5(4)[25], any respondent who intends to use an affidavit at the hearing shall file it with the Greffier and furnish a copy to every other party as soon as practicable and, in any event, unless the Bailiff or the Court otherwise directs, within 56 days after service upon him of the documents.

The matter then proceeds to trial upon the basis of the documents, including the supporting affidavit which were filed on the part of the applicant and upon the basis of the affidavits filed by the respondents.

The powers of the Court at trial are dealt with under Rules 12A/9 and 12A/10.

Rule 12A/9[26] deals with claims for damages and Rule 12A/10[27] deals with matters at the hearing.

Rule 6 of the Court of Appeal (Civil) (Judicial Review) (Jersey) Rules, 2000[28], creates a special procedure for appeals against the substantive order made at the hearing.  The notice of appeal has to be served upon all the parties who appeared before the Royal Court and who are directly affected by the appeal within fourteen days from the date on which the Royal Court made the order.  Generally speaking, the provisions of the Court of Appeal (Civil) (Jersey) Rules 1964 apply to such an appeal but with the four month time periods mentioned therein being reduced to one month.

Dismissal of application for non-prosecution

This is dealt with under Rule 12A/8.  Where the applicant does not apply to the Bailiff in Chambers for a date to be fixed for the hearing of the summons for directions within the time period set out in Rule 12A/7(1), dismissal can occur in two ways.  Any respondent may, after giving not less than four days’ notice to the Greffier and to the applicant, apply to the Royal Court for the application to be dismissed, and the Court may dismiss the application.  Alternatively, the Court can give notice to the applicant and to every respondent that, if a date is not fixed for the summons for directions within a further 14 days, the Court will order, of its own motion and without further notice, that the application be dismissed and the applicant condemned to pay the costs of and incidental thereto.

General points

It should be noted that because the provisions dealing with judicial review in Part XIIA of the Royal Court Rules have been added to the First Schedule to the Royal Court Rules, all the references therein to the Court do not include the Judicial Greffier.

It should also be noted that each of the catagories of appeal set out in Rules 3, 4 and 5 of the Court of Appeal (Civil) (Judicial Review) (Jersey) Rules, 2000 include appeals against conditions imposed by the Bailiff in relation to the granting of leave.  The term “conditions” is defined in Rule 1 of the Court of Appeal (Civil) (Judicial Review) Rules as meaning “any terms or conditions imposed on the applicant or any stay or other order granted to the applicant upon the grant of leave to apply for judicial review”.

The various forms relating to notice for application for leave to apply for judicial review, application to have leave to apply for judicial review set aside and notice of application for judicial review are set out in the Sixth Schedule to the Royal Court Rules as amended.

Rule 7 of the Court of Appeal (Civil) (Judicial Review) Rules contains wider powers to enlarge or abridge time than those which were previously contained in the Court of Appeal (Civil) (Jersey) Rules 1964.

CONCLUSIONS

An enormous amount of work over a number of years has gone into these new Rules and, inevitably, it will take some time for the local profession and judges to appreciate fully their implications.  However, I have no doubt that within the next few years it will clearly be seen that they represent a substantial improvement to the previous system.

One remaining matter is the need for a review of the rules and procedures in relation to administrative appeals where there is a statutory right of appeal.  The working party which was set up initially to consider these matters also considered the need for such reform.  However, it was decided that the judicial review rules should be dealt with first.

However, it would not at all surprise me if it were eventually decided that similar procedures, although without the requirement for leave, should be applied to such appeals so that these are effectively dealt with on affidavit rather than in the current manner.

Ian Le Marquand was Judicial Greffier between March, 1990 and June 1997, Greffier Substitute between July 1997 and October 1999, and was appointed Juge d’Instruction or Magistate in November 1999.

The footnotes for this article were prepared by Gillian Robinson, an advocate of the Royal Court with Bailhache Labesse, 14 – 16 Hill Street, St. Helier, Jersey, JE1 1BD.