REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL Civil Appeal No. 115 of 2011 Claim No. CV2010-00242 BETWEEN DEVANT MAHARAJ APPELLANT AND NATIONAL ENERGY CORPORATION OF TRINIDAD AND TOBAGO RESPONDENT PANEL: P. JAMADAR, J.A. N. BEREAUX, J.A. G. SMITH, J.A. APPEARANCES: Mr. A. Ramlogan, S.C. and Mr. G. Ramdeen for the Appellant. Mr. E. Prescott, S.C. and Mr. K. Alexander for the Respondent. DATE OF DELIVERY: Wednesday 26 th April, 2017. Page 1 of 25
JUDGMENT Introduction 1. This appeal primarily concerns the trial judge s decision to set aside his own earlier grant of leave to apply for judicial review, made in relation to a freedom of information request made by the Appellant and refused by the Respondent. Leave was initially granted ex parte on the 21 st January, 2011. It was subsequently set aside on the 3 rd October, 2011 after an inter parties hearing. The grant of leave on the 21 st January was a judicial act, and must be presumed to have been done after due consideration of all relevant considerations, including the requirement that applications for leave be made promptly. 2. The trial judge set aside the grant of leave on the basis that there had been unreasonable delay 1 by the Appellant in applying for judicial review of the Respondent s decision aforesaid. In the judge s opinion, the Respondent s refusal (decision) was made on the 18 th August, 2009 and the application for leave was only filed on the 20 th January, 2000 about five (5) months later. This delay was deemed undue, in circumstances where subsequent to the Respondent s refusal, the Appellant s attorney had written to the Respondent on the 8 th December, 2009, rejecting the Respondent s suggestions as to how the Appellant s requests could be dealt with without resort to litigation (made in writing on the 7 th December, 2009) and indicating that judicial review proceedings would be commenced in relation to the Respondent s (initial) refusal to provide the information sought (this letter was part of a series of correspondence that passed between the parties prior to the commencement of these proceedings 2 ). The judge thus set aside the leave on the basis that there was no proper explanation for the delay in filing the proceedings beyond the statutory three month limitation period. 3 3. It is to be noted that from August 2009 (the Respondent s refusal) to December 2009 (the Appellant s rejection of the Respondent s proposals to resolve the issues in dispute), a little less 1 Reasons; at paragraph 16. 2 Earlier, on the 30 th November, 2009, the Appellant s attorneys had rejected a request for particulars by the Respondent s attorneys, indicating at that time that if the requested information was not provided within 28 days (i.e. by the 28 th December, 2009) an application for judicial review would be filed without further notice. See also Reasons; at paragraphs 3 13. 3 Reasons; at paragraphs 15 and 16. Page 2 of 25
than four (4) months had elapsed. And, from December 2009 to the filing of the application for the grant of leave (January 2011), a little over one (1) month had elapsed. Thus the five (5) month period from the Respondent s refusal to the commencement of proceedings for leave. Analysis 4. This appeal raises two main issues: (i) What are the circumstances in which leave once granted can subsequently be set aside on the basis of undue delay? (ii) Whether in this case the judge s written reasons can justify his subsequent setting aside of leave (on the basis that there was no proper explanation put forward for the delay in filing proceedings beyond the three month injunction and therefore there was unreasonable delay in filing the claim 4 )? 5. The jurisdiction to set aside a prior grant of leave is agreed. It is a jurisdiction that is exercised before the substantive hearing with caution and usually only for good cause and where the initial granting of leave is subsequently recognized as being clearly erroneous. 5 6. In Trinidad and Tobago, in so far as delay is the basis for setting aside prior leave, this jurisdiction has its current foundations in the Judicial Review Act ( the JRA ), 6 and specifically in section 11. Section 11 states: 11. (1) An application for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. (2) The Court may refuse to grant leave to apply for judicial review if it considers that there has been undue delay in making the application, 4 Paragraph 16, trial judge s reasons. Note, the judge used the language of Rule 56.5(1), CPR, 1998; and must be presumed to have acted pursuant to that rule and consequently section 11(2) of the Judicial Review Act. 5 See, Lord Slynn, in R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 310; 341 B-F. 6 Act No. 60 of 2000. Page 3 of 25
and that the grant of any relief would cause substantial hardship to, or substantially prejudice the rights of any person, or would be detrimental to good administration. (3) In forming an opinion for the purpose of this section, the Court shall have regard to the time when the applicant became aware of the making of the decision, and may have regard to such other matters as it considers relevant. (4) Where the relief sought is an order of certiorari in respect of a judgment, order, conviction or other decision, the date when the ground for the application first arose shall be taken to be the date of that judgment, order, conviction or decision. 7. It would therefore appear that the trial judge purported to act in accordance with section 11(2), having concluded that there had been unreasonable delay by the Appellant in making the application for the grant of leave. 7 Certainly from the language used by the judge, he clearly had Rule 56.5(1), CPR, 1998 in mind; and to assume otherwise is somewhat disingenuous. 8. In my opinion therefore, this appeal focuses on the interpretation and application of section 11(2) of the JRA, recognizing that: In Trinidad and Tobago judicial review of official decision-making is regulated by the Judicial Review Act 2000. 8 9. As a matter of statutory interpretation, section 11(2) of the JRA must be read, interpreted and applied in the context of several intersecting spheres including (i) section 11 JRA, (ii) the entire JRA, (iii) the Civil Proceedings Rules, 1998 (CPR, 1998) and (iv) the Constitution. 7 This was therefore, strictly speaking, not a decision on whether or not time should be extended for the granting of leave pursuant to section 11(1) of the JRA; as was the case in Fishermen and Friends of the Sea v The Environmental Management Authority et al, H.C.A. No. 1715 of 2002; Civ. App. No. 106 of 2002; Privy Council [2005] UKPC 32. 8 Per Lord Walker, Fishermen and Friends of the Sea v Environmental Management Authority and Another [2005] UKPC 32, at paragraph 7. Page 4 of 25
10. Further, before one can understand when and/or why leave to apply for judicial review can be refused, or having been granted set aside, one must understand why judicial review of official decision-making exists in the first place. Vindicating the Rule of Law 11. In the Police Service Commission v Dennis Graham, 9 I attempted to state that purpose as follows: 10 Articulated in a more philosophical way, the underlying purpose and rationale for judicial review is to uphold the rule of law. To the extent that it is evident that judicial review is rooted in the rule of law, it is therefore rooted in the Constitution and as such bestows on the courts a constitutional duty and responsibility to exercise judicial governance over all administrative decisions that are amenable to judicial review. 12. This constitutional underpinning, 11 of vindicating the rule of law, is statutorily recognized in the JRA, where in relation to the granting of leave and in the context of public interest justification, it is stated: 12 7. In determining whether an application is justifiable in the public interest the Court may take into account any relevant factor, including (a) (b) the importance of vindicating the rule of law; (c) JRA/CPR, 1998 13. In relation to applications for leave, the JRA provides as follows: (i) Applications shall be made to the Court in accordance with this Act and in such manner as may be prescribed by the Rules of Court. section 5(1). 9 Civ. App. No. 143 of 2006 and Civ. App. No. 8 of 2008. 10 At paragraph 16. 11 The Constitution is the supreme law section 2; and is the primary lens through which all other laws must be viewed (laws inconsistent with constitutional values are void to the extent of the inconsistency). 12 At section 7(7)(b) of the Judicial Review Act, 2000. Page 5 of 25
(ii) No application for judicial review shall be made unless leave of the Court has been obtained in accordance with Rules of Court. section 6(1). 14. Thus the Rules of Court (the CPR, 1998), in so far as they are relevant, are statutorily recognized by the JRA. Both in relation to the granting of leave, and necessarily, the refusal of leave, the provisions of the CPR, 1998 are therefore material. This is because, logically and from a common sense point of view, considerations pertaining to the refusal of leave ought to directly affect the granting of leave. 15. In relation to this appeal, which is about the setting aside of a prior grant of leave on the basis of delay, which is therefore in substance and effect a (subsequent) refusal of leave, Part 56 of the CPR, 1998 and in particular Rule 56.5 are relevant. 16. Rule 56.5 states: (1) The judge may refuse leave or to grant relief in any case in which he considers that there has been unreasonable delay before making the application. (2) Where the application is for leave to make a claim for an order of certiorari the general rule is that the application must be made within three months of the proceedings to which it relates. (3) When considering whether to refuse leave or to grant relief because of delay the judge must consider whether the granting of leave or relief would be likely to (a) cause substantial hardship to or substantially prejudice the rights of any person; or (b) be detrimental to good administration. 17. In my opinion, there is no avoiding the interpretative task of reconciling section 11 of the JRA and Rule 56.5 of the CPR, 1998, in relation to the initial refusal of leave or the subsequent setting aside of leave that was already granted, when the basis for doing so is undue delay. It is Page 6 of 25
a task not without some difficulty. However, in so far as the trial judge purported to act pursuant to Rule 56.5(1) on the basis of unreasonable delay; on his own terms of reference, he was duty bound to at least consider the mandate of Rule 56.5(3). In my opinion there is no evidence from his written reasons that he did so. 18. I have already explained why this interpretative task must be undertaken through a rule of law constitutional lens. It must also be understood in the context of the specific bases on which official decision-making can be reviewed (and by whom). In this regard see sections 5(2), (3) and (4), 6(2), and 7(1) and (7) of the JRA. 13 13 Section 5(2), (3) and (4) of the JRA states: (2) 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. (3) The grounds upon which the Court may grant relief to a person who filed an application for judicial review includes the following: (a) that the decision was in any way unauthorised or contrary to law; (b) excess of jurisdiction; (c) failure to satisfy or observe conditions or procedures required by law; (d) breach of the principles of natural justice; (e) unreasonable, irregular or improper exercise of discretion; (f) abuse of power; (g) fraud, bad faith, improper purpose or irrelevant consideration; (h) acting on instructions from an unauthorised person; (i) conflict with the policy of an Act; (j) error of law, whether or not apparent on the face of the record; (k) absence of evidence on which a finding or assumption of fact could reasonably be based; (l) breach of or omission to perform a duty; (m) deprivation of a legitimate expectation; (n) a defect in form or a technical irregularity resulting in a substantial wrong or miscarriage of justice; or (o) an exercise of a power in a manner that is so unreasonable that no reasonable person could have so exercised the power. (4) An applicant is not limited to the grounds set out in the application for judicial review but if the applicant wishes to rely on any other ground not so set out, the Court may, on such terms as it thinks fit, direct the application be amended to specify such other ground. Section 6(2) of the JRA states: 6(2) The Court shall not grant such leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates. Section 7(1) and (7) of the JRA states: 7(1) Notwithstanding section 6, where the Court is satisfied that an application for judicial review is justifiable in the public interest, it may, in accordance with this section, grant leave to apply for judicial review of a decision to an applicant whether or not he has a sufficient interest in the matter to which the decision relates. (7) In determining whether an application is justifiable in the public interest the court may take into account any relevant factor, including - (a) the need to exclude the mere busybody; Page 7 of 25
19. The purpose of judicial review may therefore be summarized generally, as being the vindication of the rule of law in the context of administrative official decision-making, on any of the grounds provided for by the JRA and where a person s interests are adversely affected by the decision (who has a sufficient interest in the matter), or a review of the decision is justifiable in the public interest. Delay 20. Delay as a bar to granting leave (and/or relief) and/or as a basis for subsequently setting aside leave already granted, must therefore be seen against this backdrop of purpose and intent. Indeed, Sub-Rule 56.3(3)(g), CPR, 1998, recognizes delay as a consideration, by requiring an applicant for leave to indicate whether any time limit for making the application has been exceeded, and, if so, why. No doubt in satisfaction of the constitutional values of open justice and fundamental fairness, Sub-Rule 56.4(3), CPR, 1998, requires a hearing in open court if - (a) the judge is minded to refuse the application. The point being, in my opinion delay as a bar to leave for judicial review ought not, in the balancing of the purpose and intent of judicial review, to operate as an unnecessary stymie to the review of meritorious judicial review claims, and certainly not without giving an applicant an opportunity to be heard. What is at stake is not just the vindication of the rule of law, but also the constitutional value of the protection of the law. 14 This is especially necessary in a developing democracy such as in Trinidad and Tobago, both generally and in relation to freedom of information reviews. 15 (b) the importance of vindicating the rule of law; (c) the importance of the issue raised; (d) the genuine interest of the applicant in the matter; (e) the expertise of the applicant and the applicant s ability to adequately present the case; and (f) the nature of the decision against which relief is sought. 14 Recently, the Caribbean Court of Justice has explained protection of the law, as the right of the citizen to be afforded adequate safeguards against irrationality, unreasonableness, fundamental unfairness or arbitrary exercise of power and including the duty of the State to secure and ensure the enjoyment of constitutional rights, such as access to justice See Maya Leaders Alliance et al v Attorney General of Belize, CCJ Appeal No. BZ CV 2014/002; [2015] CCJ 15 (AJ). 15 Civ. App. No. P 218 of 2014, Dumas v The Attorney General of Trinidad and Tobago; Civ. App. No. 58 of 2007, Ashford Sankar v Public Service Commission, (per Narine, J.A.); Civ. App. No. P 200 of 2004, The Minister of Planning and Sustainable Development v The Joint Consultative Council for the Construction Industry (per Jamadar, J.A.). Page 8 of 25
21. It is essentially for these overarching reasons that the Court of Appeal, in Abzal Mohammed v Police Service Commission, 16 stated as a general principle (in relation to a statement made by Lord Woolf in R v Commissioner for Local Administration, ex parte Croydon London Borough Council 17 ): The key to Lord Woolf s dictum is that where there is no prejudice as a result of the delay, the statute and the rules ought not to be applied in a technical manner so as to deprive an otherwise worthy applicant, of relief. 18 22. Thus, while it is clear that delay can be a bar to granting leave recognized both by the statute (section 11(2)) and the CPR, 1998 (Rule 56.5 CPR, 1998), and a court should consider carefully whether or not the delay is such to justify refusing to grant leave; an overly technical or narrow approach is inappropriate and would operate to defeat the more fundamental objective of vindicating the rule of law. Moreover, if there is no demonstrated and real prejudice caused by any delay, why in principle, in the absence of say substantial hardship, or substantial prejudice, or detriment to good administration, or in the absence of any other good reasons, should an otherwise meritorious application for judicial review be turned away because of delay simpliciter? In my opinion, such an overly technical approach can have the effect of circumventing the real purpose and intent of judicial review and elevate delay to a strict legal rule that can operate to undermine the rule of law. Further and as a general principle, surely good public administration is enhanced by meritorious reviews of bad administrative decisions. In my opinion, at this time, judicial review of administrative decisions in Trinidad and Tobago requires a flexible approach to the issue of delay simpliciter as a bar to granting leave; which is not to say that leave cannot be refused for undue delay. 16 Civ. App. No. 53 of 2009. 17 [1989] 1 All ER 1033, 1046g: While in the public law field, it is essential that Courts should scrutinize with care any delay in making an application and a litigant who does delay in making an application is always at risk, the provisions of RSC Order 53, r 4 and s 31(6) of the Supreme Court Act 1981 are not intended to be applied in a technical manner. As long as no prejudice is caused, which is my view of the position here, the courts will not rely on these provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled. 18 Paragraph 18. Page 9 of 25
Section 11(2)/Rule 56 23. Against this backdrop section 11(2) of the JRA and rule 56.5(1) and (3) of the CPR, 1998 are rational, reasonable and can be construed as coherent. 24. Section 11(2) permits a court to refuse to grant leave where there is delay, provided: (i) the delay is undue ; and (ii) the granting of any relief would cause any of substantial hardship to, or substantially prejudice the rights of any person, or would be detrimental to good (public) administration. 25. Rules 56.5(1) and (3) mirror section 11(2), in that the discretion to refuse to grant leave on the basis of delay, is permitted: (i) where it is considered that there has been unreasonable delay before making the application; and (ii) when there is consideration whether the granting of either leave or relief would likely cause substantial hardship to, or substantially prejudice the rights of any person, or be detrimental to good (public) administration. 26. By reason of sections 5 (1) and 6 (1) of the JRA, these rules of the CPR, 1998 must be taken into consideration. But for the differences in language between undue and unreasonable (in relation to the quality of delay that is necessary) and the inclusion of likelihood as the evaluative standard, as well as the discretion to also refuse relief in the rules, the JRA (section 11(2)) and the CPR, 1998 (Rules 56(1),(3)) clearly have a singular purpose and intent. 27. A purposive reading and interpretation of both sets of provisions would therefore lead to the following. It is only when the delay is undue, to be understood as unreasonable, and any one of the other three section 11 (2) factors is likely to be operative, should a court refuse leave on the basis of delay; and a fortiori, should a court on the basis of delay set aside leave already granted. In my opinion, to construe section 11(2) of the JRA otherwise would be to undermine Page 10 of 25
the clear statutory intention of the subsection. At a minimum, there must at least be due consideration of the section 11(2) factors. 28. In Abzal Mohammed, this is in effect what the court of appeal, by unanimous decision, opined, when Kangaloo JA stated: 19 It is my view therefore that at the permission stage, depending on the length of the delay, where it is neither self-evident nor can it be shown that as a result of the delay there is likely to be prejudice to third parties and/or detriment to good administration, the applicant should not be deprived of permission. 29. The statement does not say that delay cannot deprive an applicant of permission to apply for judicial review. What it asserts, certainly in the context of section 11(2), is that delay simpliciter, without the likelihood of prejudice, hardship or detriment ought not generally to deprive a meritorious application from proceeding. To this extent I continue to agree that this is the correct interpretation to be given to section 11(2) of the JRA of Trinidad and Tobago. The jurisdiction and power of a judge to refuse or set aside leave on the basis of delay is to be exercised accordingly. What is necessary is both balance and flexibility, oriented around a clear sense of purpose and intent in the context of constitutional values, the functions of judicial review and the circumstances of each case. Ultimately, it is a question of an exercise of judicial discretion. [As I shall soon explain, section 11(3) of the JRA also has a direct impact on the interpretation and application of section 11(2).] The Section 11(1) Conundrum 30. One thing is certain, both section 11(2) and rule 56.5 deal explicitly with delay and do so in relation to the court s power to refuse to grant leave to apply for judicial review. However, as to what constitutes undue delay or unreasonable delay, this has not been expressly prescribed by either the JRA or Part 56 of the CPR, 1998. But there are pointers. 31. Section 11(1) mandates that applications for judicial review must be made promptly and in any event within three months from the date when the grounds for the application first arose. 19 At paragraph 20, and after considering both section 11 of the JRA and Rule 56 of the CPR, 1998. Page 11 of 25
Rule 56.5(2) appears to restrict the three month limitation rule to claims for an order of certiorari. However, the rules must be read together with the JRA and subject ultimately to the latter as primary legislation. Thus the section 11(1) three month limitation is of general application. 32. It stands to reason therefore, that there is a presumption of delay once the three month period has elapsed, which begs the question: what may render any such delay undue or unreasonable? Also, because the primary principle is promptitude, the same question arises in relation to this primary time standard. 33. Whereas it would be naïve to completely ignore the case law that preceded the CPR,1998 or the JRA, or the jurisprudential development of the expanding uses and functions of prerogative writs as a means to review administrative decisions and actions, the words of the statute (the JRA) and the rules (CPR, 1998) must be given due regard Parliament and the Rules Committee being credited with both knowledge and intentionality. 34. The relevant ordinary meaning of undue, is unjustifiable, unwarranted or inappropriate, with connotations of excess. 20 That is, more than is reasonable or necessary, exceeding or violating acceptable standards or values. 21 35. Thus, rule 56.5(1) appropriately compliments section 11(2) and the two are an aid to interpreting the relationship between the standard of promptly used in relation to the commencement of proceedings and the granting of leave (section 11(1)) and that of undue delay in relation to the refusal to grant leave (section 11(2)). In my opinion and accepting that the function of these sections is interrelated; the use by Parliament of completely different terms in relation to different judicial events (granting and refusing leave), suggests that they are not to be subsumed one into the other and that the tension between the two is also deliberately functional. 20 Undue also means not yet due. 21 From un not and due. Formed from the Old French indeu, Latin indebitus, meaning not appropriate, unreasonable, unjustified ; also excessive. Page 12 of 25
36. Indeed this understanding is supported by both the structure of section 11 itself and the preceding case law that no doubt informed Parliament s formulation of both subsections 11(1) and 11(2) of the JRA. Structure: 11(1), 11(2) and 11(3) 37. First the structure. Subsection 11(1) deals with the granting of leave and prescribes a general guideline in relation to time standards for doing so (promptitude with a maximum limitation of three months). It also provides for a discretion to extend these time standards which is simply that there is good reason for extending the period. 22 Thus, once an application for leave is found not to be prompt, a court is duty bound to go on and consider whether there is good reason to extend the time within which the application can be made. 38. Subsection 11(2) deals with the refusal of leave where there has been undue delay in making the application. In such a case, there must be both undue delay and any of the other stated elements. The Court of Appeal has consistently interpreted this and as conjunctive. 23 In relation to section 11(1), one effect of section 11(2) is that even if there is good reason to extend the time for the filing of an application for leave, leave may still be refused if there is the likelihood of prejudice, hardship or detriment. Section 11(3) 39. Importantly, subsection 11(3) provides further guidance in relation to both subsections 11(1) and 11(2). That is, subsection 11(3) is relevant in relation to both the time standards in relation to the granting of leave (promptitude and in any event within three months) and the finding of undue delay in relation to the refusal of leave. The language of subsection 11(3) is broad and expansive it is also partially mandatory. Thus if one takes a rights based interpretative approach (recognizing that the constitutional values of the rule of law, protection of the law and access to justice are involved) that is purposive, the apparent strictures and tensions of the preceding subsections fall away. That is to say, subsection 11(3) functions as a 22 Note, the section does NOT state that there must be good reason for the delay; though the reason(s) for any delay must be a consideration. 23 See for example the unanimous decision of the Court of Appeal (Archie, J.A.) in Sharma v Manning, Civ. App. No. 144 of 2005, at paragraph 27. Approved by the Privy Council [2009] UKPC 37. Page 13 of 25
sort of internal interpretative and directive section in relation to both subsections 11(1) and 11(2). 40. The consequence is, that in deciding promptitude, good reason and undue delay, the court shall have regard to the time when the applicant became aware of the making of the decision, and may have regard to such other matters as it considers relevant. What are these such other matters? That has been left by Parliament to the courts to discover and elaborate on, to judicially legislate. While it is mandatory to have regard to when an applicant became aware of an impugned decision (knowledge); the circumstances of each case will determine what other matters are sufficiently relevant to also be duly considered (on an objective standard). 41. Therefore, in relation to the refusal of leave (or setting aside of prior leave) on the basis of delay, it must be that in addition to the undueness of any delay and the consequences of granting any relief (such as prejudice, hardship and detriment), the court must also have regard to knowledge and any other relevant and material matters. Again, to construe the conjoint effects of subsections 11(2) and 11(3) otherwise, would be to undermine the clear statutory intent of the subsections. 42. One obvious other matter can be the merits of the application. Another could be the egregiousness of the alleged illegality, unlawfulness, unreasonableness, unfairness etc. of the impugned decision. And another, serious breaches of fundamental rights. 24 And another, public interest and/or policy considerations. Context matters. 24 In Police Service Commission v Dennis Graham, Civ. App. No. 143 of 2006 and Civ. App. No. 8 of 2008, at paragraph 26, I opined as follows: Finally, I think it is also worth stating that where there are allegations of breaches of the fundamental human rights provisions of the Constitution, there ought to be a policy consideration by the courts that asserts that state protection is not inviolable and intervention is permissible. One may describe this as a right to intervene that is vested in the courts to ensure that violation of the human rights provisions are exposed and appropriately vindicated. This in my opinion is the true import of section 14(1) and (2) of the Constitution. There is thus a responsibility to protect the values enshrined in the human rights provisions that falls squarely on the shoulders of the courts. Ensuring accountability and transparency through justifiable criticism and sanction, is one way the courts discharge their legitimate responsibility under the constitutional arrangements of governance that exist in the Republic of Trinidad and Tobago. Page 14 of 25
Duty to Consider/Good Reasons for Extending 43. By parity of reasoning and in relation to subsection 11(1), what must a court consider in order to determine whether there is good reason for extending the period within which the application is made? Note, the object of the exercise (a court having necessarily found a lack of promptitude) is to discover whether there is good reason to extend the period, not simply whether there is a good explanation for the delay in making the application. 44. First, there is a duty to consider. That duty cannot be overstated, as it demands due consideration of all relevant matters (subsection 11(3)) before determining whether or not there is good reason to extend time. 45. Second, reading section 11 as a whole and interpreting the entire section so that it both makes sense and gives effect to the intention of Parliament, it must be that the duty to consider includes a due consideration of the subsection 11(2) as well as the subsection 11(3) factors (to the extent that they may be relevant in the circumstances of the case). 46. Third, section 11 read as a whole therefore means, that in determining whether or not there are good reasons for extending the period within which an application for leave can be made, a court must at least consider the following: (i) Has the delay been undue (and therefore necessarily consider promptitude, the three month period from the arising of the grounds, and explanations for the delay). (ii) Will the grant of leave or the grant of any relief cause: (a) substantial hardship to or substantially prejudice the rights of any person, or (b) be detrimental to good (public) administration. (iii) The time when the applicant became aware of the making of the impugned decision (the criterion of knowledge). In relation to (ii) and (iii), consideration is dependent on the circumstances of the case. Page 15 of 25
47. In addition, and because of the section 11(3) imperative, there ought to also be due consideration of all other matters that may be relevant to whether or not time should be extended. Some of these have been identified above in relation to the refusal of leave and are equally applicable in relation to the granting of leave (and whether there is any good reason for extending the period within which the application for leave can be made). 48. Of significance in this analysis, is that this wholistic interpretation reveals that it is erroneous to treat the good reason explanation in subsection 11(1), as restricted to whether or not there is good reason for not meeting the statutory time standards or for any delay. A more purposive and expansive reading, driven by the constitutional values identified and the primary purpose and intention of judicial review in public law, permits an interpretation of good reason for extending the period, to include a broader range of considerations. Including but not limited to the subsections 11(2) and 11(3) factors, as well as matters such as the merits of the application, the egregiousness of any alleged flaws in the decision-making process, whether or not breaches of fundamental rights are implicated, and whether there are any compelling public interest and/or public policy considerations. Thus, while it is material to inquire whether there is good reason for the failure to file an application for leave within the prescribed time or for any delay, it would be wrong in principle to consider this, or even the issue of an extension of time per se, as a necessary threshold condition. 49. Indeed, Mendonca JA, in Police Service Commission v Dennis Graham 25 said exactly this, albeit in more succinct terms: In forming its opinion whether there is good reason for overriding the lack of promptness or in arriving at a decision to refuse leave on the grounds that because of undue delay the grant of relief would cause substantial hardship or substantial prejudice to the rights of any person or would be detrimental to good administration, the Court has a wide discretion to take any relevant matters into account including the time the applicant became aware of the making of the decision (11(3)) (see also Civil Appeal No. 106 of 2002 Fishermen and Friends of the Sea v The Environmental Management Authority and Another). 25 Civ. App. No. 143 of 2006 and Civ. App. No. 8 of 2008, at paragraph 64. Page 16 of 25
50. In Abzal Mohammed v Police Service Commission 26, Kangaloo JA stated in relation to section 11 of the JRA: From the legislative scheme, therefore, it is clear that it is only if there is both undue delay and prejudice or detriment that the Court may refuse to grant leave. I am therefore fortified in my opinion, that delay alone without prejudice or detriment is not sufficient to preclude an otherwise worthy applicant of permission. 51. In my opinion, this is to be understood to mean, at the very least, that for the purposes of section 11(2), there must be undue delay as well as the due consideration of hardship or prejudice or detriment, before leave can be refused (or subsequently set aside) on the basis of undue delay. It may very well be that Kangaloo JA overstated the position somewhat, but in my understanding, the position is that there must at least be due consideration of all the factors that I have identified above. In my opinion, both Mendonca, JA and Kangaloo, JA are in effect saying the same thing in relation to section 11(2) of the JRA. 52. In Abzal Mohammed, the Court of Appeal also stated, 27 in relation to Rule 56.5: Similarly, when the rules of court are looked at, Rule 56.5(3) shows that when a Court is considering whether to refuse leave on the ground of delay, it must consider whether the grant of leave would be likely to cause substantial hardship to or prejudice the rights of any person or be detrimental to good administration. The rule demonstrates that delay alone is not the deciding factor on whether to refuse leave. 53. There is in my opinion nothing erroneous that is either stated or indicated by these statements. All that is mandated is due consideration of the stated factors. And, as explained above, in so far as section 11(1) is concerned, a judge is duty bound to consider all of the section 11(2) and 11(3) factors, as well as all other relevant matters in the exercise of determining 26 Civ. App. No. 53 of 2009, at paragraph 21. 27 Abzal Mohammed v Police Service Commission, Civ. App. No. 53 of 2009, at paragraph 22. Page 17 of 25
whether or not there is good reason to extend the period within which an application for leave can be made. As I have also already explained, the effect of both sections 5(1) and 6(1) of the JRA is to statutorily recognize and give legal status to Part 56 of the CPR. The trial judge s reasons do not disclose that he, having found no good reason for the delay, went on to consider the section 11(2) and/or Rule 56.5(3) factors. It would appear that he treated the lack of good reasons for delay as a threshold requirement, and in so doing he was plainly wrong. Precedent 54. The approach set out above accords with the general approach of the courts before 2000, that is before the JRA was enacted. 28 For example, in R v Dairy Produce Quota Tribunal for England and Wales Ex parte Caswell, 29 the House of Lords considered the relationship between section 31(6) of the SCA, 1981 (UK) which is in similar terms to section 11(2) of the JRA, and the former RSC Order 53, rule 3(4) which is in similar terms to section 11(1) of the JRA, and held as follows: 1. Applications that were not made promptly or within three months, raised an inference of undue delay. 2. Consequently, even if there were good reasons for granting an extension, section 31(6) of the SCA, 1981 applied and therefore courts could either refuse to grant leave or refuse to grant relief at the substantive hearing if there were the requisite prejudice, hardship or detriment. 55. As is apparent, both section 11 and Rule 56.5 evidence knowledge and consideration of the prior case law. However, what section 11 does, by virtue of subsection 11(3), is make it explicit that Trinidad and Tobago courts must consider both the time when an applicant became aware of the making of the impugned decision, as well as all other relevant matters. As Nelson, J.A. has explained: 30 Section 11 (3) has no parallel in the UK principal or subordinate 28 Indeed, this approach is well supported by a plethora of English cases, interpreting the conjoint effects of the UK RSC Order 53, rule 4 and section 31(6) of the Supreme Court Act 1981. See also Fordham s Judicial Review Handbook, 6 th ed., P 26, pages 295 323 (in particular at P 26.2 and P 26.3). 29 [1990] 2 A.C. 738. 30 See Nelson JA in Fishermen and Friends of the Sea v The Environmental Management Authority, Civ. App. No. 106 of 2002, at paragraphs 42-50, as follows: Page 18 of 25
legislation. Subsection (3) gives the court a wide discretion to take any relevant matters into consideration including the time when the applicant became aware of the making of the decision in forming the good reason opinion for overriding lack of promptness or in arriving at a decision to refuse leave on the grounds that because of undue delay the grant of any relief would cause substantial hardship or substantial prejudice to the rights of any person or would be detrimental to good administration. 42. Until the enactment of the JRA the law on delay in judicial review proceedings was based on the Rules of the Supreme Court 1975, particularly Orders 53 rule 4(1), which was copied from the English order 53 Rule 4(1) as it existed in 1977. That rule gave the Court power to refuse preliminary leave and to refuse any relief sought on the application where there was undue delay in making the application. 43. In England rule 4(1) was revoked in 1980 and replaced by a new rule 4(1) based on lack of promptness unless there was good reason for extending the time for applying for leave to apply for judicial review. That 1980 rule has been enacted in Trinidad and Tobago as section 11(1) of the JRA. 44. Thus, in Trinidad and Tobago we have both the old Order 53 rule 4(1) and the 1980 replacement of it. However, since the 1980 UK rule 4(1) has been enacted as substantive law in section 11(1) it must prevail over our existing rule 4(1), which is subordinate legislation. 45. In 1981 the UK Parliament enacted section 31(6) of the Supreme Court Act, 1981, which reverted to the concept of undue delay but yet preserved the 1980 rule with its three-month time limit subject to extension for good reason. 46. In Trinidad and Tobago we have copied section 31(6) of the UK Supreme Court Act in our section 11(2), but with substantial changes. The effect of the changes is to disapply the concept of undue delay to applications for substantive judicial review. Section 11(2) deals only with leave applications and not substantive applications. 47. Section 11 (3) has no parallel in the UK principal or subordinate legislation. Subsection (3) gives the court a wide discretion to take any relevant matters into consideration including the time when the applicant became aware of the making of the decision in forming the good reason opinion for overriding lack of promptness or in arriving at a decision to refuse leave on the grounds that because of undue delay the grant of any relief would cause substantial hardship or substantial prejudice to the rights of any person or would be detrimental to good administration. 48. In my judgment the phrase an application for judicial review in section 11(1) of the JRA should be read as referring to an application for leave to apply for judicial review: see R v Stratford on Avon D.C. exp. Jackson [1985] 1 WLR 1319 (CA) and R v Dairy Produce Quota Tribunal exp. Caswell [1990] 2 WLR 1320 (H.L.). 49. The effect of section 11(1) was that an application for leave must be made promptly and in any event within three months of the making of the impugned decision: see exp. Caswell (supra). In such a case the court may refuse leave unless it considers that there is good reason for extending the period: see section 11(1) of the JRA. 50. When read with section 11(1), section 11 (3) gives the court the power to consider a wide range of factors in arriving at its opinion on good reason. The chief relevant factor is the time when the applicant became aware of the making of the decision. Page 19 of 25
56. The Privy Council in Fishermen and Friends of the Sea v Environmental Management Authority and Another, 31 upheld the decisions of Bereaux J (as he then was) and of Nelson JA (writing for the majority in the Court of Appeal) to refuse to grant leave to the applicant to seek judicial review, in circumstances where although the applicant had standing, it had not shown a good reason for an extension of time (section 11(1) of the JRA). 57. In exploring why the judges decisions ought not to be overturned, the Privy Council explained what was correct in the approach taken by the trial judge (as upheld in the Court of Appeal) as follows: 1. The judge first considered standing and found that there was sufficiency of interest. 2. The judge then asked whether there was good reason for extending the time for the application for leave. [The judge concluded that the applicant had not been able to justify a two month lapse before the filing of the application for leave (also finding that there was a good explanation for not taking action in relation to an earlier period).] 3. The judge then considered the section 11(2) factors prejudice to rights and/or detriment to good administration. 4. The judge then further considered (in line with the observations of Lord Geoff in Ex parte Caswell), whether he should grant leave and defer the issue of delay to the substantive hearing (on the basis that where there is doubt the issue should be deferred to the inter-parties hearing on the merits ). [The judge concluded that there would be significant prejudice to the rights of a third party and there could be detriment to good administration.] 5. Finally, the judge considered the public interest element and examined the merits of the applicant s case. 31 [2005] UKPC 32. Page 20 of 25
58. Lord Walker, in upholding the trial judge s decision not to grant an extension of time for the application for leave (there having been undue delay), summarized the Board s position as follows: 32 Their Lordships do not accept that (as Lucky JA thought) the judge, by refusing an extension of time, pre-empted the determination of the most important issues in the case. He recognised that he could have carried forward the issue of delay to a substantive hearing. But he had in the course of a six-day hearing done far more than make a "quick perusal" of the merits. As their Lordships read his judgment he expressed a definite preliminary view against granting an extension of time, because of the unjustifiable delay on the part of FFS, but then went on to test that conclusion against other issues, including the public interest and the strengths and weaknesses of FSS's case. His consideration of those other matters did not alter his preliminary view. On the contrary, they confirmed his view that an extension should not be granted. 59. In my opinion, what this analysis shows, is that Bereaux J, Nelson JA, and the Privy Council, in fact adopted the approach outlined above as applicable to a section 11(1) application for an extension of time. That is to say, even when no good reason for the delay was found, before the conclusion was arrived at that there were no good reasons for extending the time for the application for leave, the court undertook a section 11(2) and 11(3) analysis, which included a consideration of the merits of the application and any public interest factors (relevant considerations in the circumstances of that case). 60. The Privy Council decision in Manning and Ors v Sharma 33 is another example that supports the approach that I have advanced. In that case it was accepted by all the courts that there was delay in making the application for leave. The Court of Appeal, by unanimous decision, determined under section 11 of the JRA and notwithstanding the delay, that because there was no hardship, prejudice or detriment (section 11(2) considerations) and in circumstances 32 [2005] UKPC 32. 33 [2009] UKPC 37. Page 21 of 25
of a continuing breach of a continuing duty, (section 11(3) other matters) the trial judge was wrong not to extend time under section 11(1) of the JRA. 34 The Board in upholding the Court of Appeal stated: their Lordships must express complete agreement with those reasons which their Lordships have found of great assistance. 35 61. Thus in determining whether there was good reason to extend the time for filing the application for leave and in circumstances where there clearly is delay, 36 the court went on to consider the section 11(2) and 11(3) imperatives. 62. Locally, the Court of Appeal decision in Sanatan Dharma Maha Sabha of Trinidad and Tobago Inc. v Manning 37 is also another example of how the section 11(2) and 11(3) imperatives factor into a section 11(1) analysis. In that case there was a fourteen month delay, 38 yet the Court of Appeal, again by unanimous decision, accepted that the section 11(1) for good reason consideration is not limited to, although it may include, an explanation for the delay. 39 In the Court s opinion: The good reason for example, could be the public importance of the matter notwithstanding the unexplained delay. It may also include the overwhelming case of the applicant. 40 In the end, the Court of Appeal upheld the trial judge s refusal to extend time; but its explanation of what is the correct approach to section 11(1) and the analysis undertaken confirms the approach that I have articulated above. Stare Decisis 63. Finally, the following are noteworthy: 1. In Fishermen and Friends of the Sea, Part 56 of the CPR was not considered. It was in Abzal Mohammed. 2. Abzal Mohammed is a unanimous decision of the Court of Appeal that has not been overturned, and it is in line with both the Privy Council and Court of Appeal 34 Civ. Appeal. No. 144 of 2005, paragraphs 22-27. 35 [2009] UKPC 37, at paragraph 20; and see also paragraphs 13, 17, 20 21. 36 Civ. App. No. 144 of 2005, at paragraph 24. 37 Civ. App. No. 174 of 2004. 38 Civ. App. No. 174 of 2004, at paragraph 8. 39 Civ. App. No. 174 of 2004, at paragraph 11. 40 Civ. App. No. 174 of 2004, at paragraph 11. Page 22 of 25
decisions in Fishermen and Friends of the Sea, as well as with the Court of Appeal decisions in Police Service Commission v Dennis Graham 41 and in Sanatan Dharma Maha Sabha of Trinidad and Tobago Inc. v Manning. 3. Fishermen and Friends of the Sea was strictly speaking, in terms of its ratio, an extension of time case; whereas Abzal Mohammed was an undue delay case. 64. Therefore the rule in Young v Bristol Aeroplane C. Ltd. [1944] 2 All E.R. 293 applies; the Court of Appeal is bound by its own previous decisions unless: (i) it conflicts with a Privy Council decision or with another decision of the Court of Appeal, or (ii) the decision was per incuriam. 42 Conclusion 65. I am therefore constrained to disagree with my brothers with respect to the outcome of this appeal. They seem to be of the view that the trial judge was not duty bound to consider questions of hardship, prejudice and detriment, as well as knowledge and all other relevant 41 See paragraph 64, Mendonca JA: Therefore under section 11 an application for judicial review shall be made promptly and in any event within three months. Time runs from the date when the grounds of the application first arose and not when the claimant first learnt of them. If the application is not made promptly the Court may refuse leave to apply for judicial review. The Court however has a discretion to extend the time for the making of the application if there is good reason for so doing (11(1)). Notwithstanding that there may be good reason for overriding the lack of promptness, the Court may still refuse leave if it considers that the grant of the leave will cause substantial hardship to or substantially prejudice the rights of any person or would be detrimental to good administration (11(2)). In forming its opinion whether there is good reason for overriding the lack of promptness or in arriving at a decision to refuse leave on the grounds that because of undue delay the grant of relief would cause substantial hardship or substantial prejudice to the rights of any person or would be detrimental to good administration, the Court has a wide discretion to take any relevant matters into account including the time the applicant became aware of the making of the decision (11(3)) (see also Civil Appeal No. 106 of 2002 Fishermen and Friends of the Sea v The Environmental Management Authority and Another). 42 That is, whether the earlier decision, in the opinion of the reviewing court, failed to consider a relevant statutory provision. Lord Greene in Bristol Aeroplane, explained it as follows: where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the court is not bound to follow the earlier court s decision. In those circumstances, logic dictated, per Lord Greene, that the court should not be bound by a decision where a statute indicated that that decision was wrong, because the statute was the higher authority. In Morrelle Ltd v Wakeling [1955] 1 All E.R. 208, Lord Evershed explained the rule as follows: As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some feature of the decision or some step in the reasoning on which it is based is found on that account to be demonstrably wrong. The definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam, must in our judgment, consistently with the stare decisis rule which is an essential part of our law, be of the rarest occurrence." Page 23 of 25