How to challenge the lawfulness of decisions
Judicial review is a Supreme Court procedure that allows individuals, businesses or groups to challenge in Court the lawfulness of decisions taken by Ministers, Government Departments and other public bodies.
Delegated legislation may also be challenged. Judicial review proceedings in Bermuda normally address decisions by regulatory bodies, tribunals and the Immigration authorities. Some examples are the revocation of a work permit, the deportation of an individual, the failure to grant or renew a work permit, matters involving police review tribunals, Parole Board decisions, and decisions of review boards and panels.
Judicial review is available where a person or group of persons seek:
- an order requiring a public body to do something, known as mandamus (a mandatory order);
- an order preventing a public body from doing something, known as an order of prohibition (a prohibiting order);
- or, an order quashing a public body’s decision, known as an order of certiorari (a quashing order);
- or, a declaration.
Judicial review is not concerned with the merits of a decision or whether the public body has made the right decision. The only question before the Court is whether the public body has acted lawfully.
The early principles upon which judicial review could be commenced required a decision maker to exercise his/her discretion properly, consider matters that are relevant to the question and to exercise the discretion reasonably.
An example used by the English Courts to underline these matters is illustrative: “The red haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters.
It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.”
Today, a judicial review can be commenced based on matters that were illegal, irrational or procedurally improper.
For matters to be illegal, the decision maker may have acted beyond its prescribed powers, or unlawfully delegated power or fettered its discretion. It may also have taken into account irrelevant considerations.
Matters of irrationality would be raised where there is an obligation to act reasonably.
Procedural impropriety may arise where the decision maker has failed to give each party to a dispute an opportunity to be heard, failed to conduct a consultation properly, failed to give adequate reasons, or has exercised bias. Before issuing judicial review proceedings, a person or group of persons bringing the judicial review must have the standing or sufficient interest to do so. Any application for judicial review must be made within six months of the date of the decision complained of.
Issuing proceedings just inside the six-month time limit may not comply with the requirement to make the application promptly. Extensions of time to file an application outside of the six-month period can be made and are dealt with on merit.
The judicial review application is a two-step procedure. The first step is an application to the Court for permission to issue judicial review proceedings and the second (if the first is successful) is the issue of full judicial review proceedings leading to a hearing.
The leave stage is often referred to as the filter stage and will weed out those cases where an applicant does not have a sufficient interest or standing or where there has been delay in making the application for leave. An applicant must demonstrate an arguable case for the grant of the relief claimed.
Permission to issue judicial review proceedings may also be refused where applications are:
- frivolous, vexatious or hopeless;
- made by “busybodies with misguided or trivial complaints of administrative error”;
- misconceived;
- unarguable or groundless; or |0xb7|where there is a more appropriate alternative procedure;
- or, where an application for judicial review is an inappropriate procedure.
The application for leave is made without giving notice to the respondent party and is made by affidavit. The applicant can decide whether he wishes to have the Judge consider the application on the papers or whether there should be a formal in-Chambers hearing.
Should leave be granted, the applicant must comply with time limits to issue the judicial review proceedings, and serve the interested respondent parties and any other party who has an interest in the matter. The Court will then determine case management directions, deal with any other issue arising and set the matter down for a hearing (usually in open Court).
At the hearing there is a possibility of oral evidence being given by the parties, but affidavit evidence can be relied upon. The judicial review is more likely to be concerned with legal argument. In the event that an applicant is successful in a judicial review hearing, the Court may grant a remedy, as noted above. The respondent party must comply with the terms of any order made by the Court.
