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Shorter Articles And Notes

Judicial Review And The Review Of Administrative Decisions In Jersey; Flexibility Or Uncertainity?

Gillian Robinson

The question of the existence and extent of the remedy of judicial review in Jersey, has in recent times been the subject of some considerable judicial comment, not least from the Court of Appeal. The issue of the Court’s jurisdiction in judicial review may, in part, have been considered because of the lack of formal provision in the Royal Court Rules 1992, as amended, for any procedure regarding judicial review. As a result, judicial review in Jersey has proceeded on a somewhat ad hoc basis as discussed below.

In contrast, the position in England is highly regulated, by virtue of Order 53 of the Supreme Court Practice 1999 [1] . This provides, inter alia, that leave must be sought before an application can be made and that such application must be made within three months of the decision complained of.

In an article entitled "Judicial Review in Jersey", in Public Law [2] by Charles Blake and Sir Louis Blom-Cooper QC, the latter a former judge of the Court of Appeal, reform of the system in Jersey was advocated: "It is obviously not satisfactory to have to rely on improvisation, assumption and judicial creativity alone in developing judicial review in Jersey".

An alternative view was expressed by the Court of Appeal (Harman, Southwell, and Nutting JJA) in the case of the Greffier of the States v Les Pas Holdings Limited, Waterfront Enterprise Board intervening [3] . In that case, an application was made by a land-owner for leave to appeal against the refusal by the Royal Court to grant judicial review of a resolution of the States concerning the compulsory acquisition of an alleged interest in land, and for leave to appeal against certain directions made concerning the landowner’s challenge to the consequent vesting order. Southwell JA noted the similarity of the application before the Court to what was known in England as a judicial review application. He said he did "not entirely share the enthusiasm of some members of this court, expressed in earlier cases, for the introduction in Jersey of a special body of rules dealing with judicial review applications." The reasons were two-fold. Southwell JA said that "serious injustice"had on occasion been caused in England "when an applicant followed a path under the rules which was later held to have been the wrong path at a time when it was too late for him to embark on the right path". Secondly, he noted the "greater flexibility to the litigants and the courts" afforded by the system in Jersey. Southwell JA then noted the "desirability" of a system which could be adapted to suit the requirements of the particular case.

In England, as noted above, an application for leave must be made promptly and at the latest within three months. An extension of time will only be granted if the Court considers that there is "good reason". In Les Pas the Court of Appeal stated that there should not be a "delay" in bringing the application for judicial review, although no mention was made of any necessity for leave. Further, the question of what might constitute "delay" was not explored, and Jersey case law does not provide any guidance.

Whether the English three months’ time limit would be of relevance is also uncertain. It is accepted in Jersey that case law concerning the English Rules of the Supreme Court may be persuasive in cases where the wording is much the same as the Royal Court Rules. However, there are at present no rules in Jersey with which to make any comparison. As an alternative, the applicant may try to seek some guidance from the time specified for appealing against decisions of administrative bodies as specified in certain laws. This route leads only to further confusion as the time limits vary from fourteen days in the Parish Rate (Administration) (Jersey) Law 1946 to one month under the Housing (Jersey) Law 1949 or two months in the Agricultural Land (Control of Sales and Leases) (Jersey) Law 1974.

The question of the Court’s jurisdiction to entertain judicial review applications may also be an issue, depending on whether alternative remedies are available. An example of this is the decision of the Court of Appeal (Carlisle, Gloster, and Beloff JJA) in Planning & Environment Committee v Lesquende Limited [4] . That case concerned an appeal against the Royal Court’s judicial review of a decision of a board of arbitrators following the compulsory purchase of land. Before considering the merits, the Court of Appeal required counsel to address the preliminary question of whether it had jurisdiction to entertain an application for judicial review. The Court did this of its own motion, neither party having raised the point in its pleadings.

This jurisdictional issue was raised in the light of the procedure under Article 12 of the Compulsory Purchase of Land (Procedure) (Jersey) Law 1961, whereby an arbitration board may state a special case on any question of law for the opinion of the Inferior Number of the Royal Court. Article 12 (2) provides that that decision on any case stated shall be final and conclusive and not subject to any further appeal. In relation to that remedy Beloff JA said "The ability to state a special case for any question of law arising in the course of the proceedings is a useful procedure unavailable under the supervisory jurisdiction. Moreover, the Royal Court can control the Board’s exercise of discretion where such an application is made" [5] . He went on to explain that in the view of the Court of Appeal, a case could be stated either before or after an award had been made by the arbitration board. He further stated: "prima facie the Royal Court should decline to entertain a remedy by way of judicial review in the light of the provisions of Article 12 of the 1961 Law on the basis of the existence of an effective alternative remedy". However, the Court of Appeal did ultimately accept jurisdiction, but with the caveat that it did not expect any further challenges to decisions of an arbitration board to be brought before it.

However, where the alternative remedy is an appeal to a statutory appeal board, the Court will hear a judicial review application without question. See for example Fields v Parish Rate Appeal Board [6] in which a decision of the Parish Rate Appeal Board was the subject of judicial review, notwithstanding the provisions of Article 15 (1) of the Parish Rate (Administration) (Jersey) Law 1946, which provides "On an appeal under Article 14A of this Law, the Board shall have power to confirm or alter any matter in the draft list which relates to the land in respect of which the appeal shall have been made and its decision shall be final". [Emphasis added.]

The Court of Appeal in Lesquende, differently constituted from that in Les Pas, seemed to expect some legislative change: "The fact that the procedural machinery in Jersey is not developed to the extent that it is in England and Wales is no argument against the existence of the remedy, although an obstacle to its efficient exercise. We are pleased to note that work is in progress to introduce in the Island a specific regulatory regime for the remedy". Draft rules concerning judicial review in Jersey are now in the course of preparation, and perhaps they should deal not only with procedure, but also with jurisdiction.

Those charged with reform should also remember that there exists a regulatory regime dealing with appeals under specific provisions in statutes, which is contained in Part XII of the Royal Court Rules 1992 as amended. This does not contain any requirements as to leave, but sets out time limits for the relevant decision making body to provide its reasons, and for pleadings to be exchanged. In a number of the laws where such appeals are contained (notably not the Housing (Jersey) Law 1949) there is an inbuilt restriction in that the appeal is limited to cases where the decision complained of is "unreasonable having regard to all the circumstances".

The present position thus is that appeals under statute are governed by one procedural regime, but may be brought on differing grounds and with differing time limits, and applications for judicial review are dealt with on a rather more ad hoc basis. In relation to the latter, the different members of the Court of Appeal are not ad idem as to the extent of reform which is necessary and no comprehensive judicial guidance has been given.

The need for a comprehensive approach to the review of all administrative decisions is exemplified by the problem still existing in England; this is despite the "codification" in Order 53. In De Smith, Woolf and Jowell, "Judicial Review of Administrative Action" it is stated:

"The inter-relationship between the general regime of judicial review under Order 53, the two more specialist review procedures of habeas corpus and statutory application to quash and various types of appeal to the High Court is often obscure. There are also baffling differences in the rules on other matters such as time limits and standing which often have very little by way of logic or policy to commend them......... It is to be hoped that having established a single uniform procedure of remedies within Order 53, attention is now given to establishing a coherent procedural regime of Crown Office proceedings as a whole." [7]

Maybe it is time to consider not only the formulation of a body of rules to deal with judicial review, (which perhaps retains some of the current flexibility advocated by Southwell JA) but also the overhaul of the provisions regarding appeals in the various statutes, so that when it comes to the review of all types of administrative decisions, there is both certainty and consistency.

Gillian Robinson is an advocate of the Royal Court and admitted to practise as a solicitor in England and Wales, and in Hong Kong. She is employed in the litigation department of Bailhache Labesse, 14 – 16 Hill Street, St. Helier, Jersey.