Leave for Review
Leave for judicial review is required in every case. The purpose is to filter out cases which have no substance, are frivolous vexatious and would waste court time.
An application for leave to appeal as made in the unilateral “ex parte” application. There is to be a statements of grounds setting out specified information and the relief requested. This must be verified by an affidavit. The affidavit is to set out the facts on which the application is made. Generally the affidavit should be by the applicant personally rather than his representative.
The statement of grounds are to be such as inform the other party of the matters in issue. It is analogous to pleadings in other forms of cases. The statement of grounds are to be met with a statement of opposition by the respondent.
The statement grounds should be succinct and provide sufficient and precise information to justify the application. They are to clearly and precisely set out the grounds on which relief is sought. The case is to be based on those grounds.
The court hearing the application for leave may allow the grounds to be amended by specifying different or additional grounds on such terms as it sees fit. An order for amendment of the grounds is required.
Courts have been somewhat indulgent of lay litigants where their grounds are insufficient. They have in practice sought to amend them so that there is a stateable case so that the real matters in dispute are identified.
The application for leave is made to the designated judge on the unilateral ex parte application. If it is urgent it can be made to another judge, assigned to the same list.
The person taking unilateral application has a duty of good faith to put all the relevant facts before the court, even if they do not support the application. The applicant is under a duty to make full and fair disclosure of all the relevant facts, which he knows. Where the supporting evidence contains a material misstatement of fact, the applicant has failed to make sufficient or candid disclosure, leave may be set. An application may be made to set aside leave. There is an obligation to draw the judge’s attention to the rules and any case law that may be relevant in this context.
In order to succeed in an application for leave to appeal, the following must be shown
- the applicant has a sufficient interest in the subject matter of the application
- the facts and affidavits are sufficient to show a stateable ground for relief in the terms sought
- on those facts there is an arguable case in law that the applicant is entitled to the relief that the application has been made in time
- that the only effective remedy would be an order of judicial review or judicial review is the more appropriate procedure.
- there are no grounds to warrant refusal of leave
The case is arguable in this sense if by the standards of rational preliminary analysis, it ultimately has a prospect of success It must be such that in the absence of arguments to the contrary, it has a reasonable prospect of success.
Where leave is sought to quash a decision which is subject to an appeal and time limited for the appeal has not expired, the court may adjourn the application until the appeal is determined or the time for appealing has expired.
Where an application for leave for judicial review is granted, the court may where it is just and convenient, grant interim relief including by way of injunction, if necessary. The same principles as apply to ordinary proceedings apply. An order may be made staying the the order challenged.
If the Court grants leave, it may impose such terms as to costs as it thinks fit and may require an undertaking as to damages. Where leave to apply for judicial review is granted then the Court, should it consider it just and convenient to do so, may, on such terms as it thinks fit:
- grant such interim relief as could be granted in an action begun by plenary summons,
- where the relief sought is an order of prohibition or certiorari, make an order staying the proceedings, order or decision to which the application relates until the determination of the application for judicial review or until the Court otherwise orders.
The court considers the competing legitimate interests of the parties concerned. The principles are similar to those for an injunction. The court shall determine whether the applicant has established an arguable case. It should consider where greater risk of injustice would.
In so doing it should give appropriate weight to the orderly implementation of measures which are presumptively valid. It should give weight as may be appropriate if any to the public interest in the orderly operation of the particular scheme. It should give appropriate weight of any to any additional factors arising on the facts of the case which would heighten the risk to the public interest of the specific measure under challenge.
It should give due weight to the consequences for the applicant of being required to comply with the measure under challenge. It should in limited cases where it may be relevant consider whether damages are available and whether damages would be an adequate remedy, arising from an undertaking as to damages. In addition where the issue does not involve investigation of complex investigation of facts and complex questions of law. the court can place due weight on the strength or weakness of the applicant’s case.
Where a court grants leave for judicial review it may apply such terms as the costs as it sees fit. It has a considerable discretion. It may require security for costs. This is in addition to the general principle in relation to costs in cases taken by companies. That provides that where it appears by credible testimony that there is reason to believe that the company will be unable to pay the costs of the defendant if successful, security for costs may be required.
If in substance the effect of the application has a similar effect to that of an interlocutory injunction, the court may approach the matter and adopt the principles applicable in injunction cases. An undertaking may be required as to damages.
This would require the applicant to give an undertaking to make good any loss if it is found that the case is ultimately unsustainable, The test is whether it is necessary in the interest of justice or whether it is necessary to mitigate injustice.
The public law nature of the action may be such that an undertaking for damages is not appropriate. An undertaking for damages may be more appropriate where a public law decision impinges direct directly on private rights.
There is a right of appeal to the Court of Appeal from the refusal of an application for leave for judicial review. Notice of expedited appeal must be lodged with a copy of the order within 10 days of the order being finalised.
Contested hearing
The court may convert the application for leave to appeal into a bilateral hearing between the parties. It may having regard to the issues arising, the likely impact of the proceedings on the respondent and whether there are good and sufficient reasons, direct the application should be conducted on an inter partes (bilateral) basis. In doing so, it may give directions for service of documents on the other party and other matters that follow.
In planning cases, papers may be served in practice on the respondent authority notwithstanding that the application for leave remains unilateral, unless converted.
There have been different approaches to the question of the standard to which the case must be put forward, in order to obtain leave to appeal, when it is a bilateral case. On one view, the same standard that applies to a unilateral application should apply . Another approach requires a more exacting standard; that there should be reasonable arguable and weighty and not trivial reasons.
Order 84 rule 24 allows the court with the consent of all parties where there is good and sufficient reason and it is just and equitable in the circumstances to treat the application for leave to appeal as if it was the application for the judicial review itself. They may adjourn the application on such terms and give further directions for this purpose.
The court would usually require submissions to be filed in the Central Office. It may make such orders as appear convenient for the determination of the proceedings in a manner which is just expeditious and likely to minimise the cost of the proceedings.
An application may be made to set aside leave for judicial review. This will not be readily granted other than in a very clear case. It is more likely that the matter will be dealt with in the substantive “inter partes” hearing itself. However particular factors such as culpable nondisclosure may justify leave for judicial review being set aside.
Application for judicial review