16 November 2017

What is judicial review?

It is an action brought against:

  • a public body; or
  • a body exercising a public function

(together referred to as a "public body" in this document)

to apply to the courts for a review of the lawfulness of an enactment, decision, action or failure to act in relation to the exercise of a public function.1

The courts are not concerned with the merits of a decision, but rather the way in which it has been made. The process seeks to ensure that public bodies act in accordance with their legal obligations and do not abuse their powers. Failure by a public body to act lawfully or fairly in making a decision may render that decision invalid.

Who may be the subject of a judicial review?

The range of decision-makers whose decisions can be challenged may include government authorities and departments, statutory bodies (including the legislature), various courts and tribunals. These sorts of decision-makers may exercise legislative, judicial or quasi-judicial powers.

However, it is important to note that the courts will examine the nature of the act or decision in question to determine whether it involves a body exercising powers with a sufficient "public element".2 In certain circumstances, decisions by schools established by statute, trade associations, and commercial organisations contracted to carry out a public function have all been held to be reviewable.

Judicial review does not extend to private acts carried out by public bodies. For example, the court held that, in determining whether to modify covenants in Government leases or Conditions, the Government is acting in its private capacity as landlord and its decision is not subject to judicial review.3 The key question is whether the public body makes the decision in exercise of its public function.4

Who may apply for a judicial review?

To bring a judicial review, an applicant must have a "sufficient interest" in the matter to which the claim relates.5 This is often referred to as "standing".

It may be the case that an applicant has a direct and obvious financial or legal interest in the outcome of the application which will make it easier to show "sufficient interest". However, the courts have generally adopted a liberal approach when determining whether a party has "sufficient interest" at the "leave" (i.e. permission) stage as it is desirable that claims in the public interest are brought before the courts. For example, campaign groups acting in the public interest may be able to demonstrate sufficient interest if the issues they promote are affected.

Whether an applicant has "sufficient interest" is considered at the preliminary leave stage. This is a filtering mechanism that takes place in advance of a full hearing on the grounds of review and remedies.

Interested Parties to judicial review

If "directly affected" by a judicial review claim, a third party will be deemed to be an "interested party" and can participate in the proceedings, rather than bringing separate judicial review proceedings themselves.

The notice of application for leave to apply for judicial review ("Form 86")6 should set out the name of any person the applicant considers to be an "interested party". It must be noted that the court loses jurisdiction to hear them as interested parties if they cease to be "directly affected", whether by reason of the main claim changing, or by reason of them advancing different claims. If the court loses jurisdiction, it cannot make any decisions in relation to the interested parties.

The courts also have the power to permit any person to file evidence or make representations at the judicial review hearing.7

Grounds for judicial review

The main grounds for judicial review are:

Illegality

The decision-maker must understand, and comply with, the law that regulates his decision-making power. A decision-maker may act illegally where it:

  • commits an error of law;
  •  acts ultra vires by exercising powers beyond those prescribed to it;
  • misdirects itself in law by taking account of considerations outside those it may lawfully consider or by failing to take into consideration relevant factors which it is required to consider;
  •  uses a power given to it for an improper purpose;
  •  either abdicates or unlawfully delegates responsibility for its decision to another; or
  • fetters its discretion e.g. by rigidly following policy guidelines when exercising a discretionary power instead of maintaining an open mind and addressing itself to the particular facts at hand.

Since the courts must ensure that legislation does not contravene the Basic Law or the Hong Kong Bill of Rights Ordinance (Cap.383), any legislation (or subsidiary legislation) which contravenes these constitutional enactments or decision made under such contravening legislation shall be quashed on the illegality ground or be declared as unlawful.8

Irrationality or "Wednesbury unreasonableness"

It is unlawful for a public body or decision-maker to make a decision which is so unreasonable that it is perverse or irrational. A decision is irrational if it is "so unreasonable that no reasonable authority could ever have come to it".9 This applies to a decision which is "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."10

The threshold for this test is very high, the rationale being that judicial review's function is not to assess the merits of a decision but to review the process by which a decision was made. As a result, irrationality remains a difficult ground on which to bring a successful judicial review.

Procedural impropriety

Procedural impropriety covers a failure to act within the minimum standards of procedural fairness and natural justice imposed by law. Procedural unfairness arises if the decision-maker has shown bias (or where there was a real possibility of bias)11 or where the decision-maker fails to observe the relevant statutory
procedures in relation to the exercise of its powers, such as an obligation to give reasons for a decision or an obligation to carry out a consultation.

An increasingly common ground for judicial review is where a flawed consultation process has restricted a party's right to be heard.

An adequate and lawful consultation process should:

  • be undertaken when proposals are at an early stage;
  • provide sufficient information to allow respondents to engage and respond in an informed way;
  • allow adequate time for consultees to respond; and
  • take into account responses in a fair and open-minded way.

Although there is no general duty on public bodies or decision-makers to give reasons for their actions or decisions, there is an increasing trend for them to do so and a failure to provide reasons for a decision may render the decision vulnerable to challenge.

Legitimate Expectation

A legitimate expectation arises where a public authority has represented that it will conduct itself in a particular way.

It may be either:

  • procedural - for instance where a promise of notice or consultation before a change of policy has been
    made; or
  • substantive - for example where the expectation is that the public authority will provide a certain benefit
    or commodity.

It may arise out of a clear promise, past practice, or (more rarely) previous policy. The public body may be required to act in the relevant way if a legitimate expectation is found by the court.

The courts have had little difficulty in recognising that procedural legitimate expectations do arise, yet substantive legitimate expectations will be upheld only in exceptional circumstances. The courts are more wary of requiring a public body to confer a substantive benefit upon an individual because of the discretion that public authorities must have to change their practice and policies.

The courts have indicated that the promise must have been clear, with a pressing and focused impact. Adhering to the promise must not fetter or damage the ability of the public authority to continue its business, and to frustrate it must constitute unfairness amounting to an abuse of power.12

 

Remedies

If a judicial review claim is successful there are a number of types of remedy available:

  • Prohibition: the body under review is restrained or prevented from doing something;
  • Mandamus (i.e. mandatory order): the body under review is required to do something;
  • Certiorari (i.e. quashing order): the original decision is set aside as invalid and returned to the initial decision-making body for reconsideration. It is important to note, however, that the court cannot replace a decision with its own. Once the decision returns for reconsideration, it will not necessarily result in a different outcome, unless the original outcome was held to be unreasonable or unlawful;
  • Declaration: the court may set out the rights or legal position of the parties; and/or
  • Injunction: the decision-maker is restrained from acting in a specified office in which he is not entitled to act.

It is important to be aware that the above remedies are discretionary and, even if the applicant is successful in showing that a decision-making body has acted unlawfully, the court may not be inclined to grant the remedy sought.

In addition to the above, damages may also be available but only where there is another established cause of action separate to the ground for judicial review, such as misfeasance in public office, breach of statutory duty, or a private action in tort.

Prior to a full hearing, the court may also grant an interim injunction to protect the position of the parties where there is an imminent risk of damage or loss, and other remedies would not be sufficient.

Costs

As with other types of proceedings, the general rule is that the loser pays the winner's costs in judicial review.

However, the court has a degree of discretion in the costs award it makes. In exceptional circumstances – particularly in cases concerning issues of general public importance – the court may make a protective costs order in favour of an applicant which provides that the applicant will not be liable for the costs of the respondent if the respondent succeeds or that the applicant will be liable for the successful respondent's costs only up to a certain specified amount.

Key Points

1. Judicial review is not concerned with the merits of decisions, but rather whether decisions have been made lawfully and fairly.

2. All alternative remedies must generally first be exhausted (time permitting).

3. Proceedings must be commenced promptly and in any event no later than three months after the grounds to make the claim first arose.

4. Applicants must demonstrate that they have a "sufficient interest" in the decision being challenged.

5. Decisions of public bodies and other bodies or persons performing a public function may be subject to judicial review.

6. Applicants must prove one or more of the grounds for judicial review.

7. Remedies are discretionary and even where an applicant successfully demonstrates grounds for judicial review, the court may decline to grant the remedy sought.

 Bird & Bird & Judicial Review

We offer clients knowledge and expertise in administrative law backed by a formidable dispute resolution practice. Our recent experience includes:

Government department: acting as an interested party in judicial review proceedings brought by various claimants in relation to the decision of local authorities to levy fees in relation to local land searches.

Audit firm: acting on an appeal to Hong Kong's Court of Final Appeal in respect of the judicial review of a decision of a Hong Kong regulator.

Leading UK-based supplier of traffic control systems: acting in a dispute with liquidators concerning the nature and extent of their liability to the Traffic Department and entitlement to past and future payments.

Wharf T&T (fixed line services provider): in judicial review proceedings taken out by PCCW against the Office of the Telecommunications Authority (OFTA), in which Wharf intervened as an interested party.

Monarch Airlines: judicial review in relation to a decision by HMRC regarding air passenger duty.

Easyjet: judicial review in relation to a decision by the Civil Aviation Authority (CAA) regarding the airport charges at London Gatwick Airport.

Green group member: acting in a judicial review, the subsequent appeal and the current intended appeal to the Court of Final Appeal, in relation to the decisions of the Director of Environmental Protection and the Chief Executive in Council in refusing to suspend, vary or cancel an environmental permit for a government construction project for an artificial bathing beach in Tai Po, Hong Kong.

 

The information given in this document concerning technical legal or professional subject matter is for guidance only and does not constitute legal or professional advice.

 

1. Order 53, Rule 1A, the rules of the High Court (Cap.4A) ("RHC")

2. R v Panel on Takeovers and Mergers, ex parte Datafin plc [1987] QB 815

3. Canadian Overseas Development Co Ltd v Attorney General [1991] 1 HKC 288

4. Hong Kong and China Gas Co Ltd v Director of Lands [1997] 3 HKC 520

5. RHC Order 53, Rule 3 (7)

6. Form No.86 (notice of application for leave to apply for judicial review) in the Appendix A to RHC

7. RHC Order 53, Rule 5B

8. A & Ors v Director of Immigration [2008] 4 K.B 223

9. Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 K.B. 223

10. Council of Civil Service Unions & Others v Minister for the Civil Service [1985] A.C. 374

11. Porter v Magill [2001] UKHL 67

12. R v North and East Devon Health Authority ex p. Coughlan [2000] 2 WLR 622