What is judicial review?
Judicial review is the principal mechanism used by the courts to police the exercise of public law functions. This is a constitutionally important aspect of the law. It seeks to ensure that bodies exercising public law functions act lawfully and fairly and do not abuse their powers.
There are a number of common misconceptions about judicial review. It is important to be aware that:
- judicial review is not concerned with the merits of decisions. It focuses on the process by which decisions were made and actions taken;
- judicial review is not confined to reviewing the decisions of public bodies. Any party exercising a "public function" may be subject to judicial review proceedings; and
- judicial review is a remedy of last resort. It is only available where all alternative avenues of challenge or appeal have been exhausted.
Why is judicial review relevant to my business?
Judicial reviews are ever increasing, largely due to constitutional matters, however judicial review is increasingly used in the commercial sphere. This trend is likely to continue as businesses face greater regulation and administrative oversight.
Businesses may wish to challenge decisions by means of judicial review, intervene in judicial review proceedings which are of relevance to them, or may even be subject to an application for judicial review.
Who may be the subject of a judicial review?
The first question that is likely to emerge when judicial review proceedings are under consideration is whether the party which has done something which may give rise to a challenge is susceptible to review.
Examples of cases in the Cayman Islands include:
- Same sex marriage
- Caymanian prisoners being sent overseas to serve sentences
- Mandatory vaccinations
- Decisions of the planning committee
- Decisions of the Ministry of Education
Who may apply for judicial review?
No application for judicial review may be made unless the court has granted leave. The court will only grant leave if it considers that the applicant has sufficient interest in the matter to which the application relates.
The courts have adopted an increasingly liberal approach to the "sufficient interest test". This is in recognition that it is desirable that the courts allow, in appropriate cases, responsible citizens to bring claims for the benefit of the public.
However, it should be remembered that the purpose of the test is to ensure that frivolous and vexatious litigation against public bodies is avoided. The applicant's interest will be assessed in the context of all factual and legal circumstances in the case.
What can be judicially reviewed?
The most common target for judicial review is a "decision", often communicated in a decision letter. However the scope of "targets" for judicial review is very broad. There have been successful applications for permission to bring judicial review in respect of primary legislation, subordinate legislation, policies and schemes, proposals, guidance, and opinions.
A claim will often involve several potential connected targets. An example of this would be a planning resolution and consequential planning permission.
What are the grounds for applying judicial review?
There have traditionally been three grounds for judicial review. These are illegality, irrationality, and procedural impropriety. These categories are not exhaustive nor mutually exclusive.
Illegality
The most obvious example of illegality is where a body acts beyond the powers which are prescribed for it.
Decisions taken for improper purposes may also be illegal.
Irrationality/Unreasonableness
One of the most well known grounds of challenge is on the basis that a decision is irrational or unreasonable.
The courts have raised the bar for irrational or unreasonable behaviour. This is because they do not want to stray into territory which requires them to pass judgement on the merits of decisions rather than the process by which they have been made.
Procedural impropriety
Cayman law imposes minimum standards of procedural fairness. This concept is founded upon the principle of natural justice. The "twin pillars" of procedural impropriety have been described as "the rule against bias" and "the right to be heard". The right to be given reasons for a decision is also an integral element of procedural fairness.
The right to be heard is fundamental in criminal and asylum cases, but also extends to commercial situations. A flawed consultation process restricting the right to be heard is now a common ground for judicial review. In many situations, a decision maker will be required to consult by statute, and any flaw in that process may vitiate the final decision.
Legitimate expectation
Allied to the ground of procedural impropriety is the notion of "legitimate expectation". This is sometimes considered as a discrete ground for judicial review and arises where a party has been given an expectation that a body will act in a certain way, either because of express statements from the authority, or from prior conduct.
It is likely that for a legitimate expectation to arise there will need to have been a clear promise or evidence of a regular practice
If you would like further advice or to discuss a possible claim for a judicial review, please contact Prathna Bodden at pbodden@samsonlaw.ky