Judicial Review Overview

Reliefs

An application for judicial review is made in a manner prescribed by Order 84 of the Superior Court Rules.  The remedies sought may be certiorari, mandamus, prohibition or quo warranto.  See the chapters on judicial review in this regard.

The court may grant a declaration or injunction in an application for judicial review if having regard to the nature of the matters in respect of which relief is sought, the nature of the persons or bodies against whom relief sought, and all the circumstances of the case, it would be just and reasonable for such to be granted.

Any relief above may be requested in the alternative.

Leave

No application for judicial review shall be made unless the leave of the Court is first granted.  An application for leave generally by motion ex parte i.e.a unilateral application in a prescribed form.  Many pieces of legislation require the application for leave to be on notice.

The Court shall not grant leave for judicial review, unless the applicant has a sufficient interest in the matter to which the application relates.

Where leave is sought to quash any judgment, order or conviction subject to an appeal the Court may adjourn the application until the appeal is determined or the time for appealing has expired.

If the Court grants leave for appeal, it may impose such terms as to costs as it thinks fit and may require an undertaking as to damages.  Where leave is granted, the Court should if it considers just and convenient to do so, grant interim relief as could be granted in an action brought by plenary summons.

Where relief is sought, it may make an order staying the proceedings, order or decision to which the application relates until determination of the application for judicial review or until the Court otherwise decides.

Applying for Leave

An application for leave for judicial review shall be made within three months of the date when the grounds for the application first arose.  Other shorter time limits may apply in the context of particulars statutes.  When the relief is for an order challenging any judgement, order , conviction or proceedings, the date when the grounds for the application first arose is be taken to be the date of that judgement, order, conviction or proceeding.

The Court may on application for that purpose, extend the time period within which an application for leave for judicial review may be brought. It may only extend such period if it is satisfied that there is good and sufficient reasons, so that the circumstances which resulted in failure to make the application for leave within the period were either outside their control or could not reasonably have been anticipated by the applicant for such extension.

In considering whether good and sufficient reason exists for the above purpose, The court may have regard to the effect which the extension of the period shall have for a respondent or third-party.  The Court may dismiss an application for judicial review on the ground that the applicant’s delay in applying for leave for  judicial review even if within the general period or an extended period has caused or is likely to cause prejudice to a respondent or third party.

The Application

An application for judicial review shall be made by originating a notice of motion save in certain limited number of cases or where the Court directs that it shall be by way of plenary summons.

A notice of motion must be served on all persons directly affected.  Where it involves a Court or Tribunal decision, it must be served on the relevant Clerk or Registrar, where objection to the conduct of a Judge is to be made. An affidavit of service of the notice of motion or summons must be filed before the motion or summons is heard.

A notice of motion or summons, must be served  within seven days after perfection of the order granting leave, or such other period as the Court may direct.  If service is not effected within this time limit, the stay on the proceedings concerned, shall lapse.  The motion is returnable to the first motion day after the expiry of seven weeks after the grant of leave, unless the Court otherwise directs.

A respondent who intends to oppose an application for judicial review by way of motion on notice shall within three weeks of service of the notice on the respondent concerned or such other period as the Court may direct, file a statement setting out the grounds of such opposition.  If facts are relied on therein, an affidavit , verifying facts, shall be served on the party.

Setting Out Claim

It is not sufficient for the applicant to make an assertion in general terms. He or she  must state precisely each such grounds, giving particulars where appropriate and identifying each ground, acts and matters for that ground.

On hearing an application, Court may allow the applicant’s statement to be amended, whether by specifying different or additional grounds or where it thinks fit require the applicant’s statement to be amended by setting out further and better particulars of the grounds on which relief is sought.

It is not sufficient for the respondent to deny generally the grounds alleged.  The respondent must state precisely each ground of opposition, giving particulars where appropriate, identifying in respect of each ground the matters or facts relied on as supporting that ground, dealing specifically with each matter or fact relied on in the statement grounding the application which he does not admit the truth (except damages, were claimed).

A copy of the statement in support of an application for leave together with a copy of a verifying affidavit must be served with the notice of motion or summons.  No grounds shall be relied on or any relief sought at the hearing except the grounds and relief set out in the statement.

The Court may, at the hearing, allow the respondent to amend his statement, whether by specifying different or additional grounds of relief or opposition, on such terms, as it thinks fit and may allow further affidavits to be used if they deal with new matters arising out of an affidavit of another party to the application.

This applies both to the applicant or respondent who seek to amend.  Where the applicant or respondent intends to apply for leave to amend or to use further affidavits, he must give notice of his intention and any proposed amendment to every other party.

Court Directions

The Court may on the return date of the notice of motion, or any adjournment give directions whether it shall require oral submissions at the hearing of the application for judicial review in respect of any of the written submissions on points or issues of law.

The Court hearing the application for leave, having regard to the issues arising, and the likely impact on the respondent or other party, or other good reason may direct that the application for leave should be heard on notice and adjourn the application for leave on such terms as it may direct.  It may give directions as to the service of notice of application for leave, copies of the statement of grounds, affidavit and exhibits on the intended respondent or any other person.

The Court may with the consent of all parties, or on the application of a party or of its own motion, where there is good and sufficient reason, treat an application for leave as if it were the hearing of the application for judicial review.  It may adjourn the hearing of the application on such terms as it may direct.  It may give directions as to the time within which submissions in writing of the parties on the points or issues of law shall be exchanged between the parties and filed in the Central Office.

It may give directions as to whether it shall require at the hearing of the application for judicial review oral submissions in respect of any submissions in writing on points of law.  It may give direction and make any order above of which provision is not made in the rules.

On the hearing of an application for leave directed to be on notice or for judicial review, the Court may give direction and make orders for the conduct of the proceedings as appear convenient for the determination of them in a manner which is just, expeditious and likely to minimise the costs.  It may include

• directions as to service of notice of the application;
• directions as to the filing and delivery of further affidavits;
• order fixing time limits;
• directions as to discovery;
• directions as to exchange of memoranda between the parties;
• directions as to the furnishing of written submissions;
• directions as to the publication of notice of the hearing of the application and giving of notice in advance of such hearing to any other party who desires to be heard on the hearing of the application.

Court Orders

In an application for judicial review, the Court may award damages to the applicant if he has included in the statement in support of his application for leave, a claim for damages arising from any matter to which the application relates.  The Court is to be satisfied that, if the claim had been made in a civil action against the respondent, it would award damages.

Where relief is sought to remove any proceedings for the purpose of quashing them, the applicant may not question the validity of any order, warrant, committal, conviction, or record, unless before the hearing of the motion or summons he has lodged in the High Court, a copy thereof verified by affidavit or accounts for his failure to do so to the satisfaction of the Court.

If necessary, the court may order that the person against whom an order of certiorari be directed, to make a record of the judgement, conviction or decision complained of.  Where the order is made, such order shall direct that the proceedings shall be quashed forthwith on their removal into the High Court.

Where relief is sought and the Court is satisfied there are grounds for quashing the  decision to which the application relates, it may, in addition to quashing it, remit the matter to the Court, tribunal or authority concerned with a direction to  reconsider it and reach a decision in accordance with the findings of the Court.

Where the relief sought is a declaration, an injunction or damages, the Court considers that it should not have been granted on an application for judicial review but might have been granted in a civil action against the respondents, the Court may, instead of refusing the application, order the proceedings to continue as if they had been begun by plenary summons.

Where the relief sought or includes an order to compel something to be done, the proceeding shall not abate by reason of the death, resignation or removal from office of the respondent.  They may be continued in the name of successor in office or right of that person.