Judicial review

Locus Standi
The Court may, on an application for judicial review, grant relief in accordance with this Act—
(a) to a person whose interests are adversely affected by a decision; or
(b) to 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.
 Standing serves to:
 Prevent frivolous/vexatious litigation
 Prevent abuse by mischief makers
 Prevent abuse of court process
 Increase efficiency in the administration of justice
Who has standings?
AG v Antigua Times Ltd [1976] – Yes, standing. Whether a Newspaper (incorporated
company), claiming that it is a “person” under the Constitution is capable of enjoying the
fundamental rights and freedoms protected by the Constitution and has standing to bring a
judicial review application.
Collymore v AG [1969]
Individuals can bring a claim on behalf of an association or trade union

Grounds for Judicial Review

CCSU v Ministry for the Civil Service [1984]
Lord Diplock suggested that the different grounds for judicial review could be
compressed into three main categories:
Illegality
Irrationality
Procedural impropriety
Fiadjoe identifies a fourth category to Lord Diplock’s list: Unconstitutionality
Improper delegation
Glasgow v Cadogan (1931-37)
Facts – The person so appointed by the Governor delegated his power to his nephew ‘with the
permission’ of the Commissioner.
Findings – The delegation of power even with the permission of the Commissioner of Mines was
completely outside the grant of powers. From the ordinance it is quite clear that no one has
power to register unless he is directly appointed by the Governor in that behalf.
Abuse / fettering of discretion
De Smith’s Judicial Review: “A decision-making body exercising public functions which is
entrusted with discretion must not, by the adoption of a fixed rule or policy, disable itself from
exercising its discretion in individual cases.”
Ultra vires
Tappin v Lucas (1973)
Per Bollers CJ: “If the authority or body strays beyond its proper bounds, then its actions can be
controlled by the supervisory power of the courts. If, however, it acts intra vires, it is immune
from judicial review.”
Attorney-General of St Christopher v Reynolds [1980]
Facts – The Governor General on May 10 1967 proclaimed a state of emergency and
subsequently detained Reynolds. Reynolds was released August 10 1967. In January 1968, a
retroactive Indemnity Act 1968 was passed to indemnify acts done in the public interest during
the state of emergency.
Findings – Because the provisions of the Indemnity Act 1968 that sought to block Reynolds’
claim was in contravention of the Constitution, the Act was unconstitutional and void. As such,
the application of the law was ultra vires.
Where laws contravene the Constitution they will be held to be ultra vires.
Natural Justice
• Promotes fairness in the administration of justice
• Increases trust and confidence in the judicial system – especially with respect to rules
about bias and automatic disqualification
• Provides for the protection of several constitutional rights, such as due process, right to
representation, right to hear particulars of the charge etc
Two types of Natural Justice that may be breached
1. Right to a fair hearing – Audi Alteram Partem – Both sides must be heard. Thus, a
fair opportunity to present one’s case must be provided, which may, for example,
require access to legal representation.
Ridge v Baldwin [1964]
In 1956 the appellant was appointed chief constable of a borough police force, the
appointment being subject to the Police Acts and regulations. Appellant was acquitted
from charges on two different occasions. After his acquittal the appellant applied to be
reinstated, but on March 7 1958, the watch committee at a meeting decided that he had
been negligent in the discharge of his duties as chief constable and, in purported exercise
of the powers conferred on them by section 191(4) of the Act of 1882, dismissed him
from that office.
Findings – The decision of the respondents to dismiss the appellant was null and void and
that, accordingly, notwithstanding that the decision of the Home Secretary was ‘final and
binding on the parties’ by section 2(3) of the Police Appeals Act, 1927, that decision
could not give validity to the decision of the respondents.
Per Lord Reid, Lord Morris and Lord Hodgson: they were bound to observe the
principles of natural justice by informing the appellant of the charges made against him
and giving him an opportunity of being heard, and that they had not done so.
2. The rule against bias – Nemo judex in causa sua – No man should be a judge in his
own cause. This principle invalidates any judgment where there is bias or conflict of
interest or duty.
 Actual
Apparent
Types of Bias Automatic
disqualification

Real danger
Test for bias Fair minded and
informed observer

The King v Sussex Justices ex parte McCarthy [1924]

Lord Hewart CJ: “...but while that is so, a long line of cases shows that it is not merely of some
importance but is of fundamental importance that justice should not only be done, but should
manifestly and undoubtedly be seen to be done.”

Actual bias is straight forward.

Automatic disqualification: applies where the person or body has a pecuniary or proprietary
interest in the outcome of the subject matter of the decision. If that interest exists, that person
cannot participate or in any way attempt to influence the actual decision made. Moreover, even if
there is no actual influence, the law presumes bias in such cases, and that person is automatically
disqualified because of the existence of that interest.
Howell v Millais [2007]
There was bias where a judge refused to recuse himself, after it was alleged that he submitted a
job application to the firm that came before his court in another matter.
Apparent bias
Meerabux v AG of Belize [2005]
The appropriate test of apparent bias in such a case was to ask whether a fair-minded and
informed observer would consider that there was a real possibility of bias.

The legal principle concerning legitimate expectation stipulates that the power of public
authorities to change policy is constrained by the legal duty to be fair. This principle seeks to
resolve the conflict between the desire to protect the individual’s confidence in expectations
raised by administrative conduct and the need for administrators to purse changing policy
objectives. Procedural legitimate expectation concerns a representation that a hearing,
consultation, notice or other appropriate procedure will be afforded before the decision is made.
On the other hand, substantive legitimate expectation concerns cases where a representation is
made that a benefit of a substantive nature will be granted or if the person is already in receipt of
the benefit that it will be continued and not be substantially varied.
Caribbean Court of Justice (CCJ) has also found that a claim for substantive legitimate
expectation was made in Attorney General v Joseph and Boyce. The CCJ carried out a thorough
analysis of conflicting case law on this area and concluded that the two death row applicants had
a substantive
legitimate expectation to sit out proceedings before the international human rights body. The
CCJ relied on factors such as positive statements made by representatives of the executive
authority evincing an intention or desire on the part of the executive to abide by the international
treaty, statements made in parliament during the debate on the Constitution Amendment Act,
together with the practice of the Barbados government to give an opportunity to condemned men
to have their petitions to the international human rights body processed before proceedings to
execution.
More recently, in Paponette v Attorney General of Trinidad and Tobago,37 the Privy Council
found in favour of the appellants, maxi-taxi owners and operators, that a substantive legitimate
expectation had arisen. The Board held that the maxi-taxi owners and operators would be
permitted to operate from City Gate and would not be under the control or management of the
state-owned corporation; and the government had not proved that there was an overriding public
interest that justified the frustration of this legitimate expectation. Sir John Dyson SCJ, speaking
for the majority of the Board, recognised the relevant factors to consider where: first, the
representations were clear, unambiguous and devoid of relevant qualification; secondly, the
representations were made to a defined class, namely the maxi-taxi owners and operators;
thirdly, the representations were relied upon by the appellant; and fourthly, the critical
representation was that they would not be under the control and management of the state-owned
corporation.

RECAP NOTE

Procedural Legitim ate Substantive Legitim ate

Expectation (AG of Hong Kong v
Ng Yuen Shiu)
W hen a public authority has prom ised to
follow certain procedures, it is in the interest
of good adm inistration that it should act
fairly and should im plem ent its prom ise
Expectation (Paponette)
(i) the representations w ere clear,
unam biguous and devoid of relevant
qualification;
(ii) the representations were m ade to a
defined class;
(iii) the representations were relied upon by
the appellant;