Legal Matters – Of the principles of Judicial Review

In the recent case of United Docks Ltd (Applicant) v The Town and Country Planning Board (Respondent No.1) and others 2016 SCJ 145, it was decided that United Docks Ltd did not satisfy the test for it to obtain the leave of the court in order to proceed with a judicial review application.

The present matter was in respect of an application seeking leave to apply for a judicial review of “the decision of the Town and Country Planning Board of putting into effect the outline scheme for the declared planning Municipal City Council Area of Port Louis in accordance with the notice which it gave in the Gazette of the 23rd May 2015”.

We may here open a parenthesis to grasp the raison-d’être of judicial review and when should we be concerned with same. Judicial Review lies at the heart of administrative law. It is an important legal process through which the court evaluates the manner in which public bodies have exercised their powers. It is a challenge to the way in which a decision has been made and is designed to protect the citizens from arbitrary and unfair actions/decisions by important administrative bodies that exercise functions of public law significance, thus ensuring the application of the rule of law.

Judicial review is concerned with reviewing not the merits of the decision in respect of which the application for judicial review is made, but the decision-making process itself. It is made effective by the court nullifying an administrative decision, in case the decision-making process was flawed, without substituting its own decision on merits of the decision taken. On the other hand, in an appeal, the court of appeal replaces its own decision on the merits for that of the administrative officer.

In the English case of Council of Civil Service Unions v. Minister for the Civil Service [1985] 3 All ER 935, Lord Diplock had developed the major threefold basis for the judicial review. The first one being “illegality” wherein Lord Diplock’s words, this ground means that the decision maker “must understand correctly the law that regulates his decision-making power and must give effect to it.” The second one being “irrationality”, that is he must not reach a decision which no reasonable body would have reached nor must he abuse of his powers. Finally, the third ground is “procedural impropriety”, where a public body must not commit breach of the rules of natural justice.

The procedure for engaging a judicial review application is twofold. One must obtain leave from court, that is, permission of the court to proceed with the judicial review application. The rationale behind such stage is to eliminate any application devoid of merit for a judicial review and thus prevents the time of the court from being wasted by frivolous and vexatious applications.

Once an applicant has obtained leave of the court to proceed, the court will then proceed to hear the substantive application for judicial review.

The grounds which United Docks Ltd had raised in its application were that: (a) it has been denied a fair hearing; (b) it has legitimate expectations of developing its own lands; (c) the Board has acted irrationally and unreasonably by failing to take into account relevant considerations and taking into account irrelevant considerations including projects which had been reviewed or discarded by the policy makers at the time of the publication of the scheme.

As regards the issue of fair hearing, United Docks Ltd had asked for a visual presentation to be made by its team to the Town and Country Planning which refused to consider same. Their Lordships ruled that the fact that the visual representation was not retained, it could not mean that United Docks Ltd had missed out on a fair hearing.

As regards the issue of legitimate expectations, the defence of the Respondents was that United Docks Ltd has recourse for a claim for compensation under the Town and Country Planning Act. Their Lordships also added that United Docks Ltd has lodged claims for damages against other respondents in the matter.

The final ground raised by United Docks Ltd was to the effect that the Town and Country Planning Board acted irrationally and unreasonably by considering irrelevant considerations and failing to take into account relevant ones. The Lordships did not perceive much substance in the last leg of the submissions for United Docks Ltd and the leave was consequently set aside.

It may be apposite to end this note on judicial review by highlighting the fact that the Supreme Court has an important amount of discretion in such matters. In that respect, it was mentioned in the case of Savanne Bus Service v. RTLA [1976] MR 30 that:

The Court is vested with plenty of discretion in the matter: First the overall discretion to grant or refuse a prerogative order; secondly, a discretion, upon an application for leave to apply for the order, to direct that persons directly affected by the impugned proceeding should be served with the notice of motion; thirdly, a general discretion, which the English Court has under Order 3 r. 5, to enlarge or abridge any time appointed by the Rules. Those powers are, however, intended to enable the Court to do justice in a deserving case, not to encourage laxity in procedure. With regard to extension of time, it is settled by authority that a strong case for it must be shown. It may appositely be observed in that connection that, where a statute of limitation governs the matter, leave to join a defendant to the proceedings will, except in special circumstances, be refused if the claim against him is barred. [Braniff vs. Holland and Hannen and Cubitts (1969) 1 W.L.R. 533). Although, therefore, the Court enjoys with regard to its own rules of limitation a wider discretion, it must still ensure that a departure from them be permitted only in exceptional cases.

Misconduct on the part of the applicant, undue delay in lodging a case, or even, the insignificance or trivial nature of an application may constitute a ground for a court to reject a judicial review application. Therefore, while judicial review applications are of much administrative significance, one must not use this instrument lightly as a weapon as the Supreme Court will carefully scrutinize each application on the general basis set out in this note.

In the present case, the Court concluded that the fundamental criteria for meeting the requirements of a proper judicial review process were not satisfied. The yardsticks mentioned above may have to be carefully weighed before instituting a judicial review process of the decision-making process by a public body.

* Published in print edition on 6 May 2016

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