L. JUDICIAL REVIEW
| 679. |
Judicial review is an area which has been and
remains subject to rapid development through case-law. Questions regarding the
availability of judicial review remedies, who is entitled to bring proceedings or to be
heard, and so forth, straddle issues of substantive and procedural law. The case-law
remains important and indispensable. |
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| 680. |
In relation to procedure, the policy in
respect of judicial review has generally been to require claims to be brought (i) only
with the court's leave; and (ii) promptly after the cause for complaint has arisen. This
is so since the institution of judicial review proceedings may itself interfere with the
execution of important public duties. Features of the present rules(Note 589) giving effect to such policy have been preserved by the CPR, the court's
permission to bring judicial review proceedings being still required,(Note
590) with the application having
to be made promptly and in any event not later than 3 months after the grounds for the
claim first arose.(Note 591) |
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| 681. |
Where changes have been made in the CPR, they
aim first to provide some simplification. For example, CPR 54.1(2)(a) crisply identifies
the scope of judicial review claims as follows :- |
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"a 'claim for
judicial review' means a claim to review the lawfulness of - |
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(i) |
an enactment; or |
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(ii) |
a decision, action or
failure to act in relation to the exercise of a public function. " |
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This may be contrasted with the circumlocution
used in the existing rule in the HCR (O 53 r 1).(Note 592) |
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| 682. |
The terms used for the remedies are also made
more accessible, "mandamus" becoming "a mandatory order",
"prohibition" becoming "a prohibiting order" and
"certiorari" becoming "a quashing order".(Note
593) |
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| 683. |
The CPR spell out those cases where judicial
review procedure must be used (by reference to the relief sought being relief of
the types mentioned in the previous paragraph)(Note 594) and also cases where it may be used (where certain classes of
declaration, injunction or damages are sought).(Note 595) |
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| 684. |
The CPR aim also to clarify the position and
to facilitate participation of persons interested in the proceedings. |
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| 684.1 |
The rules create a category of
"interested parties" defined as including "any person (other than the
claimant and defendant) who is directly affected by the claim".(Note
596) |
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| 684.2 |
Where a claimant knows of such persons, he
must name them in his claim form (Note 597) and also serve them (as well as the defendant) with the proceedings.
(Note
598) |
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| 685. |
Next, the CPR make the important change
(Note
599) of requiring defendants who
wish to contest the claim to acknowledge service and to serve such acknowledgment on the
claimant and other persons named in the claim, setting out "a summary of his
grounds" for contesting it. This must be done within 21 days of being served with the
claim, this time limit not being capable of being extended by agreement. If a person
interested is served with the claim form and wishes to take part, he must also acknowledge
service, serving the document on the claimant and other interested parties named in the
claim. |
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| 686. |
This change provides the court with a summary
of the defendant's position, when considering the question of whether to grant leave to
pursue the judicial review. It helps the court to deal with matter without an oral
hearing. (Note 600) |
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| 687. |
The other rules on the application for leave
are not much different from those existing in Hong Kong. If the court refuses leave
without a hearing, it can be asked to reconsider the matter at an oral hearing. An appeal
against refusal lies to the Court of Appeal. |
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| 688. |
Where leave to proceed is given, the defendant
and any other person served who wish to participate in the proceedings must serve detailed
grounds, including any additional grounds, for contesting or supporting the claim together
with any written evidence relied on. (Note 601) |
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| 689. |
Where someone wishes to take part in the
proceedings but has not been made an interested party by either claimant or defendant, the
CPR allow him to apply for permission to file evidence and to be heard, if the application
is made promptly. (Note 602) |
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| 690. |
Finally, note may be taken of CPR 54.19(2) and
(3) relating to the court's powers upon quashing a decision. These paragraphs provide as
follows :- |
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(a) |
remit the matter to the
decision-maker; and |
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(b) |
direct it to reconsider
the matter and reach a decision in accordance with the judgment of the court. |
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(3) |
Where the court
considers that there is no purpose to be served in remitting the matter to the
decision-maker it may, subject to any statutory provision, take the decision itself." |
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| 691. |
Sub-rule (2) is uncontroversial. However, the
utility of sub-rule (3) has been questioned in the White Book.
(Note 603) It is thought likely to
be of extremely limited value in the light of substantive principles of administrative
law. |
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| 692. |
Readers are consulted as to whether reforms
along the lines of the CPR rules discussed above should be adopted:- |
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| 692.1 |
For simplifying description of the scope of
judicial review and the terminology for forms of relief: Proposal 69. |
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| 692.2 |
To make provision for the participation of
persons interested in the proceedings, other than the claimant and defendant:
Proposal 70. |
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| 692.3 |
To require claims to be served on defendants
and other persons known to be interested: Proposal 71. |
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| 692.4 |
To require defendants who wish to contest the
proceedings to acknowledge service and to summarise the grounds relied on: Proposal
72. |
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| 692.5 |
To spell out the court's powers on the
quashing of a decision, including power, subject to statutory limitations, to take the
decision itself: Proposal 73. |
Notes
| 589 |
In Hong Kong, HCR O 53
rr 3 and 4. <back> |
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| 590 |
CPR 54.4. <back> |
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| 591 |
CPR 54.5(1). The time
limit is not extendable by agreement: CPR 54.5(2). <back> |
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| 592 |
"O 53 r 1(1) An
application for (a) an order of mandamus, prohibition or certiorari, or (b) an injunction
under section 21J of the Ordinance restraining a person from acting in any office in which
he is not entitled to act, shall be made by way of an application for judicial review in
accordance with the provisions of this Order. |
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(2) An application for
a declaration or an injunction (not being an injunction mentioned in paragraph (1)(b)) may
be made by way of an application for judicial review, and on such an application a judge
may grant the declaration or injunction claimed if he considers that, having regard to-
(a) the nature of the matters in respect of which relief may be granted by way of an order
of mandamus, prohibition or certiorari, (b) the nature of the persons and bodies against
whom relief may be granted by way of such an order, and (c) all the circumstances of the
case, it would be just and convenient for the declaration or injunction to be granted on
an application for judicial review." <back> |
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| 593 |
CPR 54.1(2)(b) to (d).
<back> |
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| 594 |
CPR 54.2. <back> |
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| 595 |
CPR 54.3. <back> |
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| 596 |
CPR 54.1(2)(f). <back> |
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| 597 |
CPR 54.6(1)(a). <back> |
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| 598 |
CPR 54.7. <back> |
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| 599 |
CPR 54.8. <back> |
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| 600 |
White Book 54.8.2.
Power to make a determination without a hearing is in CPR 54.12 (as in HCR O 53 r3(3)).
<back> |
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| 601 |
CPR 54.14 to 54.16.
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| 602 |
CPR 54.17. <back> |
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| 603 |
White Book 54.19.2.
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