What is judicial review
In Trinidad and Tobago Judicial Review is the procedure by which the High Court can review an administrative action, omission or the decision-making processes of inferior Courts, tribunals, public bodies, public authorities or persons who have been conferred with powers by Parliament to exercise public duties or functions in accordance with any law.
In Judicial Review proceedings, the High Court exercises a supervisory role which permits it to review the decision-making process to ascertain whether it was legal, fair and that the decision maker had the authority to make the decision in question. The merit of the decision is not considered by the Court in Judicial Review proceedings.
Legislation & Court Rules
Judicial Review proceedings are governed by:
- The Judicial Review Act Chapter 7:08 (hereinafter called “the Act” and
- Part 56 of the Civil Proceedings Rules 1998 (as amended) (hereinafter called “the CPR”).
Bodies subjectable to Judicial Review
- Inferior Courts
- Tribunals
- Public bodies and authorities
- Private bodies that exercise public functions
Who can Apply for Judicial Review
In accordance with Section 5 (2) of the Act the following persons can apply for Judicial Review:
- … a person whose interests are adversely affected by a decision; or
- … a person or a group of persons if the Court is satisfied that the application is justifiable in the public interest in the circumstances of the case.”
Section 5 (6) of the Act also provides:
“Where a person or group of persons aggrieved or injured by reason of any ground referred to in paragraphs (a) to (o) of subsection (3), is unable to file an application for judicial review under this Act on account of poverty, disability, or socially or economically disadvantaged position, any other person or group of persons acting bona fide can move the Court under this section for relief under this Act.”
Rule 56 (2) of the CPR also provides for an Application for Judicial Review to be made by any person, group or body that has sufficient interest in the subject matter of the Application.
Grounds upon which an Application for Judicial Review may be initiated
Section 5(3) of the Act outlines several grounds upon which an applicant may rely to file an application for Judicial Review. Some of these include:
- the decision was unauthorised or contrary to law;
- the decision maker exceeded his/her jurisdiction;
- failure to satisfy or observe conditions or procedures required by law;
- breach of the principles of natural justice;
- unreasonable, irregular or improper exercise of discretion by the decision maker;
- abuse of power;
- fraud, bad faith, improper purpose or irrelevant consideration;
- breach of or omission to perform a duty.
These grounds can be categorized under three fundamental heads highlighted by Lord Diplock in the case of Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9 as follows:
- Illegality,
- Irrationality (unreasonableness) and
- Procedural Impropriety.
Making an application for Judicial Review
Section 11 of the Act requires an application for Judicial Review to be made promptly and within three months from the date of the decision, judgment, order or conviction in question, unless the Court considers that there is good reason for extending the period within which the application shall be made.
Before you can make an application for Judicial Review of a decision, you must inquire whether there is any other written law providing an alternative procedure to question, review or appeal that decision. Section 9 of the Act makes it clear that the Court shall not grant permission to an applicant for judicial review of a decision where an alternative procedure exists, save in exceptional circumstances.
Once there is no alternative procedure, you must then seek leave of the Court to make an application for Judicial Review pursuant to Section 6 of the Act and Rule 56 of the CPR. The Application for leave must be supported by an affidavit. The Court will only grant such leave where it is satisfied that the applicant has a sufficient interest in the matter to which the application relates or in accordance with Section 7 of the Act, where it is satisfied that the application is justifiable in the public interest. The Court must also be satisfied that there is an arguable ground for judicial review having a realistic prospect of success.
Where leave is granted, the Applicant must file a substantive application for Judicial Review via a Fixed Date Claim Form, supported by an affidavit, within 14 days in accordance with Rule 56 of the CPR.
Remedies
Section 8 of the Act sets out the forms of relief that the Court may grant. These include:
- an order of mandamus (an order compelling persons to do particular things), prohibition or certiorari (an order quashing the decision and possibly remitting to the lower court);
- a declaration or injunction;
- an injunction under section 19; or
- such other orders, directions or writs as it considers just and as the circumstances warrant.
In appropriate cases, the Court may award damages and may grant in addition or alternatively an order for restitution or for the return of property, real or personal.
Submitted by: The Civil Legal Department
Legal Aid and Advisory Authority,
23 Stanmore Avenue, Port of Spain.
Contact: 638-5222
Email:
Website: laaa.org.tt
This article is not legal advice. Consult an Attorney for legal issues.
