The document discusses the availability of judicial review in various jurisdictions in the Caribbean. It begins by defining administrative law and judicial review, and examining the principles that underpin judicial review in the Caribbean. It notes that judicial review proceedings are available in high courts and supreme courts. Several countries have passed specific judicial review legislation. The document then examines the process for applying for judicial review, including requirements for leave, delays, amendments, costs and determining the correct parties. It discusses claimants and standing, including the tests for sufficient interest and public interest litigation. Finally, it analyzes which decisions and authorities are subject to judicial review, such as cabinets, ministers, statutory corporations and public bodies performing statutory functions with public law consequences.

1. WS 1: availability of JR
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2.  1 Introduction:
 A) Introduction
 Admin law is
The law relating to the control of government power, to protect
individual rights.
 Rules designed to ensure that the administration effectively
performs the tasks assigned to it.
 Ensuring governmental accountability, and fostering participation
by interested parties in decision -making process
 No definite meaning but evolves from the Westminster style
constitution
 Its not about rights but rather wrongs and the abuse of power
 Examine principles that underpins AL/JR in Carib
 Examine common law principles applicable
 Examine legislative provisions relating to the duo
 B) JR Proceedings
 Tenable in HC/SC

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3. Bolstered in post independence CC by BR-ability to seek redress for
impunity
 Countries with specific legislation T&T (JRA), Barbados (AJA), St
Lucia
 Brought against arbitrary actions
 Public authority/government (people endowed with coercive
power)
 Benefits of having statute for JR: (BACONGO: integrity to the
system, clarity and easy access to a formalized process as oppose to
relying on the shifting landscape of the English law)
 HC has supervisory jurisdiction over the public authority this include:
 Principled methods of controlling the manner in which decisions are
made
 Source of decision making power statutory /CL
 Revision of the process of decision making and not the imposition of
the courts opinion on the public authority where its decision is
concerned (Leacock v AG Barbados – courts cannot substitute there
view on that of the legal competent authority)
C) JR :process or merits?
JR is concerned with the process of decision making and not the
merits of the decision (Leacock v AG Barbados )
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4.  Merits of decision should be left to an appeal
 Court operates in a supervisory capacity over inferior courts and
public authorities
 D) JR and Appeal:
 Merits of decisions left to an appeal
 HC/SC is not a public authority but has supervisory jurisdiction over
them
 Competent public authority should be made to make decision and
the courts should not impose its views (Leacock v Barbados)
 Distinction between JR/Appeal (RE Jack Tar Village – one checks
process of decision making the other checks merits)
 Pay attention to the paper from De Las Bastide.
 2. APPLYING FOR JR (AJA 3(1); JRA 5(1)
 A) Introduction:
 Reliant on legislation (Barbados AJR, T&T JRA, Civil procedures act;
CO Williams Construction v Blackman)
 Act set out the process, who qualifies, grounds, claimants alternative
grounds and even for persons who may not be able to afford it.
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5.  After leave have been granted, originating motion filed for
substantive hearing or originating summons if the court is on
vacation (BACANGO)
 Where there are no JRA, the Civil procedure act is used.
 B) Leave to the Court (JRA s 6)
 Seeking the courts permission to determine whether the matter has
merits/applicant having sufficient standing
 Barbados AJA No leave required (CO Williams construction v
Blackburn – application should be assessed on the basis of the
content capacity and not on the approach given that Barbados
does not have a leave requirement; Lloyd v AG Barbados –
English courts require that there be leave however, Barbados AJR
has no requirement which must have been intended to fetter the
adjudication of high court complaints)
 Purpose of leave: To shield the court from hopeless/groundless
proceedings
 Lapse of time (Golding V Simpson Miller – no filing of fixed date after
leave granted – court will not extend, goes against the rules and is a
waste of the courts time.
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6.  Question of appeal for refusal of JR leave application (Kemper
Reinsurance v MOF: CA has the right to hear all appeals
jurisdictionally, distinguish between appeal and jra, unlikely that such
an appeal will be denied because the merits are different-examines the
legality of the process whereas appeals examines merits of decision.
 C) Misrep & Non Disclosure
 Adjudicated at the leave stage and otherwise referred to as a duty of
candour
 Submission of application with non disclosure, may be cause for
matter to be set aside
 Effects of non disclosure (Graham V COP – claimant is deemed to
have omitted to disclosure a provision that governed the Police
subsequent actions; Rajacoomar v Magistrate Alert – untruthfulness
mode of non disclosure)
 D) Delay
 T&T JRA s 11 & Barbados AJA s 8
 Application must be made promptly or within three months
 Date is the date that the applicant became aware of grounds. Eg
after a judgment
 Court may grant extension for good and sufficient reason
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7. 

Court may deny leave
 For delay in making the application
 Application causes substantial hardship, prejudice to other
people
 Detrimental to good administration
 Evelyn v Peterson shows the effect of delay where a defendant is
guilty in HC of not setting a fixed date for a substantive order
because of another order by a trial judge that placed him in a
position under a continuing duty to comply
No hard and fast rule of what constitute a delay except for good
and sufficient reason that will be determined by the court
(Greaves-Smith v PSC- claimant matter was not lodged until 2
years 8 months and it was declared to be an undue delay; Balwant v
Stat Authorities – although there was a delay the HC did not make
a prononcement on the extension of time but granted leave thus it is
deemed to have inferred or implied the extension; Lloyds v AG
Barbados – case considered whether there was undue delay given
the fact that the claimant was not given time in the first instance to
clear her name of an allegation.
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8.  E) amendments:
 Left to the prerogative of the court (BACONGO)
 Applicable at leave stage
 Must not prejudice or cause injury to the next party
 May be us to determine contention
 F) Cost
 where process has not been followed
 Where litigation is against the government and there has been no
express authority to pay cost (Sandiford v PSC – litigation against CJ
without authority to pay cost)
 Discontinuation of proceedings, party responsible pays the cost (Carib
Info access ltd v WASA)
 G) Parties
 Who is being pursued for JR
 Hong Ping v PSC: action against PSC but decision was made by PSAB,
too much time has passed cannot correct the wrong)
 Person aggrieved by a decision can sustain an action (AJA 6 (a)(b);
JRA 5(2)
 How to determine a person aggrieved – is he directly affected by the
decision made, does it prejudicially affect his interest (Persuad v Nicholas )
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9.  Forbes v AG Jamaica-wrong party was named as the respondent,
should have been filed against the crown and not the AG.
 Third parties are allowed to join action if 1) they are affected
(Persaud v Nicholas) 2) intervener if granted permission eg
government department.
 H) Incorrect procedure
 JR brought against those with coercive powers eg, those who
perform statutory functions when making a decision
 Private contract does not have statutory function – not a subject of
JR
 Court determines the nature of the matter using certain rules (Clark
v AG T&T – incorrect process was used, claimant filed a writ of
summons in seeking JR instead of originating motion).
 3) Claimants and standing
 A) Introduction
 Persons with sufficient interest (T&T JRA s 5(1)
 Persons whose interest are adversely affected by a decision action
(AJA 6 (a)(b); JRA 5(2)
 Must have some relationship with the matter (Locus Standi)
 3rd parties
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10.  B) Locus Standi
 Any person whose interest is: adversely affected by the decision,
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administrative act, omission, or some public interest (Barbados AJA
s 6; T&T JRA s 5(2)
Civil procedures rules applies in jurisdiction where there are no JR
Act
Contractual relationship outside of private law (Pindling v Bahamas
Electrical – private person cannot bring a n action for the prevention
of public wrong. Does not have sufficient interest)
Determining sufficiency of interest (Spencer V AG A&B new
approach– 1) what is the substantive issue raised in the application;
2) nexus between the matter and the applicant 3) does it accord with
good reason)
Sufficient interest may be interpreted generously so that a person
not having it may still be granted leave if it is justified for public
interest. (Graham v COP-case where traffic restrictions were
imposed illegally and it is deemed that the COP did not have
sufficient interest. (Ventose does not agree with this judgment on
the grounds that the COP would have had to implement the
regulations; )
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11.  Francois v AG- public interest: deemed that the claimant
did not have sufficient interest to challenge the MOF who
guaranteed a loan outside of the law)
 Locus standi had gone through change from the original
regime:
 Threshold issue
 Usually decided before substantive issue raised
 New approach (Spencer v AG A&B- accords with good
reasoning)
 Liberal approach: Does the case have merit(Francois v
AG: deemed not to have merit and so he did not have
standing; Re Clegghorn- a former ban employee
impugning decision on the grounds of fraud should have
standing even though sufficient interest not proven –
decide on the merits)
 C) Interveners JRA 14
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12.  Parties interested in joining the matter
 Court has discretion to admit them (Allyene v Singh –
court has wide discretion)
 They may be adversely affected by the decision –
subscribe to the same standard
 D) Public Interest Litigants (PIL) (Trinidad JRA s 5 &
7;Barbados AJA s6)
 Courts permit application if
 Adversely affected by the decision
 Justifiable
 Persons who not a busybody (having too much time
on there hands)
 May even be granted if there is not sufficient interest
providing it is public interest.
 Factors considered by the courts:
 Need to exclude the busy body
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13. Importance of vindication of the rule of law
 Importance of issue raised
 Genuine interest of applicant in the matter
 Expertise of applicant and ability to present case
 Nature of decision and relief sought
 Note:
 Trinidad attempt to repeal the PI provision
because of a flurry of litigation (T&T Civil Rights
Association v AG T&T – was not permitted
because bill attempted to remove the jurisdiction
of the court.
 E) Capacity
 Distinction between Locus standi and capacity
 LS: having sufficient interest or being adversely
affected by the decision (Barbados AJA s6)

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14. Capacity: legal capacity to commence and continue
proceedings – must have legal personality to act eg
company being a separate legal entity (AG SKN v
Lawerence)
F) Companies: (AG SKN v Lawrence – supports the points
below)
 Separate legal entity
 Shareholders are treated different
 Raising issue depends on who has been impugned:
shareholders or company
4 Defendants and Decision Subject to JR AJA 3(1)(2);
JRA 5(1)
A) Introduction
 Is the (public) body subject to JR?
 What is meant by a decision subject to JR?
 Is the defendant a public authority




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15.  B) State Institutions:
 The following are subject to JR if they breach CL rights or
act UV
 Consist of:
 Legislature – law makers
 Executive – policy makers ( by extension public
service, statutory bodies, implementers of policy) (CO
Williams v Blackburn – Cabinet acted unlawfully in
taking into account an irrelevant consideration in the
process of awarding a contract)
 Judiciary (Maharaj V AG T&T- member of judiciary
acted contrary to rules of NJ)
 Bodies entrusted with governance ( statutory function,
coercive powers)
 TIPS determining whether the institution is subject to JR:
 1) ID who makes the decision
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16. 2) Are they performing some statutory function
 C) Public Authorities:
 1) Cabinet:
 Refers to bodies that perform statutory function:
 Cabinet empowered by Constitution (Barbados
Constitution s24)
 Note not all decision are reviewable (ouster clause;
prerogative powers) (CO Williams v Blackman–
cabinet had no prerogative powers here policy making
body, performs statutory function- subject to JR)
 Executive members (not limited to cabinet members.
See previous slide)
 How about where a committee is appointed by cabinet
(Galbarangsingh – appointed to perform public duties
in public interest subject to JR)`

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17. Amenable to JR
 Ministers considered in the plural and can mean
cabinet (CO Williams v Blackman; ALL Trinidad Sugar
& General Workers Trade Union v Minister of Planning
and mobilization – was the minister’s decision to form a
subsidiary subject to JR – yes because a public law act
and he answers to parliament and had prerogative
powers-housing scheme)
 3) Permanent Secretaries:
 They are public functionary
 Public law consequences flow from there decision
(Hector v AG A&B – decision of an acting PS was
subject to JR. Test: nature and purpose of functions
must be considered.
 4) The decision maker
 Must understand the law that governs his decision
 Must be based on facts

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18. Minister held responsible for decision ultimately
(James v MOE – ministers decisions are carried out by
functionaries and he is constitutionally responsible)
 D) Amenability to JR
 Is the matter one of public/private law
 Test:
 what's the source of the power (statute, subordinate
legislation, prerogative or CL) (Jamat Musileem-COP
entered and remained in his premise. Test was
applied; Barbados Cricket Association v Pierre did
not pass the test because although enacted by
legislation the source of the power was the
regulations that everyone had agreed to)
 What is the nature of the power (public function that
leads to public consequences in the event of non
compliance – same cases as above)

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19.  C: Statutory Corporations
 What extent will they be subject to JR in the awarding of
contract
 Was the decision made of a public element
 NH International Caribbean Ltd v Urban development
Corporation – function test must be applied to
determine if the grant of tender was subject to JR
(source, nature of the power, functions to be exercised
– fulfilled the test)
 Industrial Risks Consultant v Petroleum Co TT they
were subject to judicial review because of the nature
of the duties but the award of contract was a separate
matter.
 TAKE NOTE: SC subject to JR if the function test is fulfilled and it
results in public law consequences
 F) Public Service Commission:
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20.  Subject (PSC)to review given that they perform
constitutional functions (Thomas v AG TT)
 G) Supervisor of Insurance
 SI subject to JR (Narsham v SI – prohibited from entering
insurance and the decision was challenged)
 H) Chief Immigration officer:
 Subject to JR. Barbados Aja intends that anyone who
makes a decision will observe natural justice (Sparman v
Greaves – person whose permit to reside and work was
revoked)
 I) Employment
 Must have statutory underpinning, mere dismissal/
discipline does not suffice: (Ali v North West Regional
Health Authority – whether to end an employee contract
was subject to review – contract had statutory
underpinning an therefore subject to review)
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21.  J) Educational Institutions
 For public schools it’s a question of whether they acted
lawful in there capacity (Exp Mignot: decision to remove
employee from a post challenged. No public law element)
 K) DPP
 1) Introduction
 Powers given to DPP
 Amenable to JR although courts are reluctant to do so
because:
 DPP expected to do a balancing act considering the
political and public interest, facts, competence of the
court to assess the merits
 Availability of evidence
 Avoidance of delay in the court system
 2) Scope of the powers:
 Start, stop, intervene, continue proceedings against
any person Bze Constitution 50(2)©
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22.  3 Are the decisions subject to JR:
Tappin v Lucas: effect of exercising powers amounts to
administrative act, thus subject to JR
 Tapper v DPP Jamaica: DPP cannot just do whatever they
want
 4) JR of the decisions of the DPP
 Mohitt v DPP Mauritius: confirmed decision was reviewable
as the decisions must be exercised within constitutional
limits. If:
 In excess of constitution
 Not from an independent mind decision was fettered
 Bad faith
 Abuse of process
 Rigid policy fettering decision
 L: Circuit Court:
 forms of public authority subject to JR (Forbes v AG Jamaica

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23.  TUTORIAL 31.1.13 p66 read of cases
 5) Exclusion of JR:
 A) Introduction
 May be excluded:
 Because of an ouster clause
 Within the discretion of the court
 JR not a right in all circumstances
 Existence of alternative remedies
 B) Discretionary remedy
 CL controlled courts gives remedy of certiorari
 JR discretionary and initiated by way of leave (except Barbados AJA,
no leave necessary)
 Factors considered in granting leave: alternative remedies; all
remedies are discretionary
 Illegality present – no relief
 Counter prevailing interest – no relief (Lloyd v AG Barbados- Judy
Lloyd had suffered harm so she had to be compensated, there would
be no detriment to good administration by granting relief )
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24.  C) Non Justiciabilty (NJ)
 1) Introduction
Consideration of the role of policy and how far should
the court go whereas:
 Policy decisions
 Actions of heads of state (Re Blake: head of state
should not devolve certain sensitive informationperogative powers-NJ)
 Treaty provisions
 National security issues
 Political questions
 Alternative remedies
 2) Policy Decisions
 Executive determines policy (HMB Holdings v Cabinet
A&B-land required for public purpose and legislated is
not justicibale)

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25. Subject to JR if acted contrary to natural justice
3) Actions of the Executive
 Head of state can use perogative powers – NJ (Re Blake; Office of PM,
RE TT – PM not calling elections was a political question – NJ)
4) National Security/ ) Public Interest Considerations: AJA 6(b);
JRA5(2)(b); 7
 Generally not justiciable, but must be genuine
 Must emanate from a Minister (Olivera v AG A&B _ Immigration office
indicated that applicant was being deported for national security
reasons, IO no sufficient evidence of a Minister and it must be genuine)
 overwhelming public interest court may grant request (Nagles v
Superintendent of Prison: Prisoner in maximum security with death
sentence criminals – court determines SP need not disclose
information because of national security reasons)
5) Military and defence force:/E: alternative remedy JRA 9
 Internal workings NJ (Young v Chief of Staff Barbados Defence Force
– court should not intervene, the act has all available remedies)
(alternative remedy)
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


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26.  D) Abuse of process:
 Courts process is not allowed to be abused (Ayers v AG TT: claimant




seeking retroactive promotion after four years passed – JRA TT s11
undue delay)
F) Dispute of fact:
 Evidence must be presented to support that the adverse decision
affected you.
 Factual basis must be established (Cove v PM Bahamas – acquisition
of certain lands but no clear decision – no evidence provided that he
was not heard, but evidence that the objections had been viewed)
G) Delegated Legislation
generally not subject to review unless the subject matter is reviewable
(Nutrimex feed v Manning TT: delegated legislation may be looked into
only in exceptional circumstance – court does not intervene in
Parliament)
H) Improper forum
 Court limited to test process and not merit, tribunal may be better
suited (Cable Bahamas LTd v PUC: issues of a technical nature, court
not so skilled, tribunal better suited
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27.  I) Prematurity
 Disputes must be genuine and a decision taken (Mackintosh v
Police Service Commission TT: claimant applied for leave
because he was not promoted to inspector except no decision
had been taken in that regard).
 J) Public Interest Considerations: AJA 6(b); JRA5(2)(b); 7 see
earlier slide


K) Ouster Clauses:
 Can be statutory or constitutional
 Generally to oust the jurisdiction of the court to enquire into the
decision making process of administrative authorities
 May be reviewed where its jurisdiction have been breached
 Criticism: Parliament makes legislation that are judge proof
 Stops democracy of the law in respect of separation of powers
doctrine
2) Statutory ouster clauses:
 Clause that appears to confer final powers on PA
 Court can intervene where they have acted UV,(error of law/invalid
decisions)
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28. 


Finality clause to protect bodies from review, however not conclusive
(AG TT v Ryan courts may intervene where invalid or excessive
jurisdiction, operate outside natural justice
3) Constitutional Ouster Clause
Usually found in constitutions and fetters the discretion of the court
unless parties acts in excess of jurisdiction ( concerns head of states
etc) (Re Blake: constitution precluded court from inquiring into the
exercise of GG – prerogative powers)
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