Assignment

Judicial review

COURSEWORK ASSIGNMENT

INTRODUCTION TO THE LAW AND MAURITIAN

LEGAL SYSTEM

BA (Hons) Law and Management

Lecturer: MR L TULSI

Learner: Mr M. R. ELLYEBACCUS

OU LEARNER ID NO: 201903232

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 Assignment
Judicial review

Year 1/ Semester 1

Table of contents

Contents
1.0 INTRODUCTION.......................................................................................... 4
2.0 Scope of Judicial Review..............................................................................4
3.0 Importance of Judicial Review.....................................................................5
4.0 Grounds for Judicial Review........................................................................6
5.0 Remedies available through Judicial review...............................................8
5.1 Prerogative Order/ Writs............................................................................8
5.1.1 Order of Mandamus................................................................................8
5.1.2 Certiorari................................................................................................ 9
5.1.3 Prohibition......................................................................................... 10
5.2 Equitable Remedies....................................................................................10
5.2.1 Declaration.................................................................................... 10
5.2.2 Injunction...................................................................................... 10
6.0 Damages.................................................................................................... 12
6.1 Negligence........................................................................................ 12
6.2 Breach of statutory duty...................................................................12
6.3 The tort of misfeasance in a public
office……………………………………..12
7.0 Conclusion.................................................................................................. 13
8.0 Bibliography............................................................................................... 14

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Judicial review

Assignment Question

INTRODUCTION TO THE LAW AND MAURITIAN LEGAL SYSTEM 3

 Assignment
Judicial review

1.0 INTRODUCTION
Judicial review is a procedure through which a person can seek to challenge a decision, act or
failure to act of a public body. This could be a government department or local authority, or
another body exercising a public law function. It is the process by which the Supreme Court,
exercises its supervisory jurisdiction over the proceedings and decisions of inferior courts,
tribunals and other bodies or persons who carry out quasi-judicial functions or who are
charged with the performance of public acts and duties. Application for judicial review must
be made into stages, by way leave from the Supreme Court and an application on the merits
after leave has been granted

As stated by Lord Diplock in the Privy council case of Council of Civil Service Unions v.
Minister for the Civil Service 1:

“it provides the means of exercising judicial control over administrative actions”

Judicial review is part of the jurisdiction of the Supreme Court. Judicial review however is
not an appeal but rather a re-examination of the decision making process of a public body.
Unlike in an appeal case the Court in a judicial review process does not substitute the
judgment of the lower court, was observed by the Court in the case of Ramdin Vs PSC2:

"the Court's function is not to substitute itself for the respondent in determining what is the
appropriate punishment to be meted out to an erring public officer"

The scope, importance, ground, procedures and remedies of judicial review are examined in
this document.

2.0 Scope of Judicial Review

Scope may defined as to what extent something can be accomplished. The scope of judicial
review means the extent to which the review may carried out.
The scope of judicial review is limited both in its availability and function: the role of the
court is not to re-make the decision being challenged, or to inquire into the merits of that

1
Council of Civil Service Unions v. Minister for the Civil Service [1985] 3 All ER 935
2
1990SCJ26

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decision, but to conduct a review of the process by which the decision was reached in order to
assess whether that decision was flawed and should be revoked.  The process of bringing a
claim is streamlined, and 'interested parties', who are neither applicants nor defendants, are
often included in the proceedings when they have an interest in the outcome. Judicial review
is only applicable when the dispute is against a question of public law as was decided by the
case of O’Rielly Vs Mc Mackman3. Therefore, an application for judicial review under
private law will not be entertained by the Supreme Court, as was mentioned in the case of
Mohall Vs Government of Mauritius 4, where it is ruled that the case was matter private
law and the Court did not intervene and so leave for Judicial review was not granted .
Application for judicial review is only applicable to Public bodies created under an act of
parliament and the decision subject to review must be of public interest otherwise it will not
be entertained. For instance, the case of Islam Vs Mauritius Housing corporation 5 was
not granted leave as the Court did not find any element of public law to embrace remedies by
judicial review. Judicial review aims at looking at lawfulness of the decision making process
not at the merits of the case. Judicial review can only initiated against decisions making
process of statutory bodies instituted under the Constitution. So, for leave for judicial review
to be granted the body must a public body created under an Act of Parliament and exercising
in public law. The case of Sham and Mauritius Turf Club 6 , is an example where leave
was refused by the Supreme as it was found that the disciplinary of committee was not
created under Statute and was a private body. Thus judicial review is an important process in
Public law domain. Its importance is canvassed in the following section.

3.0 Importance of Judicial Review

Judicial Review lies at the most important part of administrative law. It acts a deterrent to
prevent abuse and arbitrary use of powers by public bodies. Thus, it ensures that the rule of
law\ one of the three pillars of a democracy is adhered to. Judicial review is the only way by
which check and balances can be applied among the three organ of a democratic country; is
Legislature, Executive and Judiciary. It also ensures that that administrative decision
3
1983 2AC237 (Appeal cases)
4
1992 SCJ 203 - Lallah ACJ, Boolell J
5
1992 SCJ127
6
1985 MR 217- Glover ACJ

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making is fair and rational according to powers conferred by parliament( Lord Hoffman) 7.
Hence, it helps to prevent that all powers of the state to be concentrated to only one organ of
the Republic and consequently, prevents tyranny.

4.0 Grounds for Judicial Review.

In an application for judicial review the court will examine the facts of the case and then
leave will be granted only if any of the grounds satisfies the Court. The grounds on which
judicial review can be sought are three fold as pointed out by the Lord Diplock in the Privy
Council case of Council of Civil Service Unions -19858

a. Illegality
b. Irrationality

c. Procedural impropriety/unfairness

4.1 Illegality
A decision of a public body may be illegal if the decision maker has acted outside or beyond
its powers, also known as ‘ultra vires’ and has misdirected itself in law - for example the
decision maker does not understand and apply the law correctly; or has made an excessive
use of power to reach the decision. Not all the facts of the case have been considered before
reaching a decision. In the case of Jandoosing9, the Court quashed a sentence of the District
Court of Curepipe as it found that the sentenced issued by the District Magistrate exceeded
the amount provided by law.

4.2 Irrationality

A decision may be irrational if :

It is so unreasonable that no reasonable person could have would have reached. This is also
known as ‘Wednesbury unreasonableness’ . The decision maker may have considered
7
R (Alconbury) v Secretary of State UK HL 23-[2001].
8
Council of Civil Service Unions v. Minister for the Civil Service [1985] 3 All ER 935,
9
Jandoosing Vs District Magistrate of Curepipe 1993 SCJ324.

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irrelevant facts in the process and failed to have considered relevant facts. Moreover, he have
acted in bad faith or dishonestly or in abuse of power.  

4.3 Unfairness/Procedural impropriety

This applies where the public authority did not adhere to procedural requirements or breached
Convention rights. Public Authorities must act fairly and without bias (either actual or
suspected).

As mentioned by Lord Diplock in the case of Council of Civil Service Unions10, a decision is
unfair if the decision maker breaches the rule of natural justice whilst making it, that is all
prodecures duties are not complied with and shows biasness on the decision making and fails
to consult or support the decision with reasonable facts. Also, if the accused has not been
given ample to prepare his case and has not been communicated relevant information about
the facts of the case, this can result to an unfair trial and therefore breaches the rule of natural
justice. In case the of Riviere Du Rempart Bus Service -197911, case for unfair dismissal of
an employee. It was held that the employee was not given ample time to prepare his defence
as he was given only one day notice to attend a disciplinary committee. Also, a suspect has
the right to be represented by a counsel of his choice at any trial or disciplinary committee, if
this condition is not fulfilled, there can be an unfair process and if any person subjected to a
legal proceeding is refused this right , then again there is unfairness. The cases of Harel
frere -198612 and Retreaders Ltd13- 1989, are examples where accused party was denied his
right of representation by legal advisor and hence the Supreme Court ruled that there was
unfair dismissal in these cases.

After these grounds are established by the Court and the case is sent for review by the Court,
remedial action need to be taken to restore justice to the aggrieved party. The next section
discusses the available remedies.

10
Council of Civil Service Unions v. Minister for the Civil Service [1985] 3 All ER 935
11
Riviere du Rempart Bus Service Co ltd Vs Ramjan -1979 SCJ 347.
12
Harel Frere vs Sophie -1989 SCJ306.
13
Retreaders Ltd Vs Marie - -1989 SCJ 389.

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5.0 Remedies available through Judicial review

According to Black's Law Dictionary Free Online Legal Dictionary 2nd Ed.
“Remedy is the means by which the violation of a right is prevented, redressed, or
compensated.”

A judicial review remedy is therefore, seeking a redress the decision making process of the
public body and that is of public interest. It is essentially asking the Court to quash the
decision of a public body. The remedies available are limited in effectiveness since the courts
are concerned as they challenge only the legality of the process rather than whether the
decision under challenge was the correct one. Furthermore, all the remedies are discretionary.
The court may take into account such factors as delay in seeking the remedy, the futility or
usefulness of granting it, and the hardship caused to others by granting it.

The Judicial review remedies may be divided into two categories namely: Prerogative
orders / writs and equitable remedies.

5.1 Prerogative Order/ Writs

It is the action of bringing the decision of an inferior court or administrative body before the
Supreme Court or higher court for the quashing of the decision. There four types of
prerogative order / writs under the common law

5.1.1 Order of Mandamus

It is a command issued by the High Court or Supreme Court to any person, corporation or
lower Court requiring them to perform some duties therein specified which appertains to his
or their office and is in the nature of a public duty.

Mandamus applies to any person or body, whose duty are public in nature and it is not
limited to or concerned only to bodies whose office is judicial in nature or who have to act
judicially. The 1968 case of Padfield14 is an example where the High Court of England
issued a mandatory order for the Ministry of Agriculture in the U.K to reconsider the issue of
the price paid per litre of milk to farmers as set by the respondent under statutory discretion.

14
Minister of Agriculture, Fisheries and Food [1968] 1 All ER 694 (HL)

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The breach of duty may be a failure to exercise a statutory discretion, or a failure to exercise
it according to proper legal principles as in the above case.

5.1.2 Certiorari
It is an application before for the review of decision made by lower Court or Public body by
a Higher court or the Supreme Court. The Supreme Court will determine whether the
decision should be quashed and eventually quash such decisions. The order of certiorari is
applied for whenever it is thought that there has been an abused alleged error or abuse of
process by the decision making body. Then, hearing is carried out anew before a Higher
Court and the decision of the lower court is quashed. Certiorari can be sought where there has
been absence or excess of jurisdiction, jurisdictional error or error of law on the face of the
record, failure to observe the requirements of procedural fairness or fraud.

According to section 116 of the Courts Act -1945, in case of recognizance for a certiorari
order for the removal a judgment , order or conviction, the magistrate may require a signed
certificate from the Registrar the appeal or has not been prosecution under section 93 of the
Courts Act or that the conviction order has been affirmed, issue an order against the principal
and sureties for the recovery of the amount due without further process as if a judgment has
been obtained under the civil side against the latter.

Hence, it is both retrospective and negative in nature. The case of Regina Vs Governor of
Brockwill Prisons15 is an example of this issue, where the applicant sought the judicial
review against the decision of the Governor of Prisons in the U.K as the latter did not deduct
the time he spent in remand on his term of imprisonment. The Court, ultimately quashed the
decision of the Governor of Prison after a correct interpretation of statute of law and hence
reduced the sentence of the convict by the amount spent in custody.
15
Regina vs Governor of Brockwell Prison , ex parte Evans 1997 1 All England report 439 Queen’s Bench
Division.

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Mandamus and Certiorari actions can be undertaken together that is the seeking for the
Higher Court to quash the decision and to require that body to go through the decision-
making process again.

5.1.3 Prohibition
Prohibition is an order from a Higher Court or Supreme Court to an inferior court or tribunal
or public authority which forbids them to act in excess of its jurisdiction or contrary to law.
This could prevent the latter to make decision that could be quashed by certiorari. Therefore,
prohibition is concerned with future action.

5.2 Equitable Remedies

Moreover, other remedies also exists in a judicial review process, these are known are
equitable remedies. They are mainly :

5.2.1 Declaration

A Declaration describes the legal rights of the parties to the judicial review. A declaration is
not order and cannot be enforced and is not binding on the parties . It will nullify the previous
decision incompatible with a law, when issued. However declaration is not issued by
Courts in Mauritius.

5.2.2 Injunction

It is an application to the Supreme Court to issue an order to prevent a public body, Minister
or Admistrative body from acting unlawfully. Moreover, injunctions can be issued by District
and Intermediate also. This remedy is also available in Private and Civil law also.
Injunctions are normally applied to and granted by the Judge in Chambers. It has to be
applied forthwith as the case occurs.
Injunctions are usually classified by the nature of the obligation imposed on the party. These
are namely:
(a) mandatory/ positive injunction, imposing an act to be done on the party.

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(b) Prohibitive injunction/negative, is order that prevents a public or private entity

from doing act. An example, is the prohibitive injunction against a hotel
construction in La Cambuse.

Injunctions may be interlocutory, temporary and perpetual, which determines the time
periods for which the injunction remains in force. An interlocutory injunction is issued after
hearing both parties. It is issued pending the determination of the case, by the relevant Court.

Temporary injunction is a provisional measure and may last a few days. It is usually done
prevent an event from happening. In the case of P. Khulpateea-199616, the applicant sought
an interlocutory judgment against the seizure of his car by the respondent, same was granted
by the Supreme Court pending the determination of the main action.

Perpetual Injunction is a judgement issued after the trial has been completed in Court. In the
case of Fishmongers And Fishermen Association -197717 , a perpetual injunction was
granted to the applicant against the Government of Mauritius on an Ultra vires order that the
condition for the issue of netting licence , the fisher must attend all netting session.

Temporary and Interlocutory injunctions are issued by the judge in chambers based on
affidavit evidence.

Injunctions are discretionary and the Court has the exclusive power to grant or refuse an
injunction. They decision are binding on the parties and amount to contempt of Court if not
adhered to.

In application for injunction the applicant must be honest, have a legal right in the matter and
show that he would severely affected in injunction is granted. The cases of Gujadhur-1970 18,
is an example of a case where the motion for interluctory injuction was set aside upon the
applicant failing to prove that it will be prejudicial to him. This also applies to a declaration.
16
P Khulpateea v Banque Nationale de Paris Internationale 1996 SCJ 379
17
Fishmongers And Fishermen Association And Anor, Vs Government Of Mauritius -1977 MR 361
18
Gujadhur Vs Gujadhur Ltd. And Gujadhur And Ors. 1970 Mr 101

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6.0 Damages
Damages are awarded only exceptionally when a decision smacks of bad faith and
Malice. It appears that there are only three torts, which may be directly involved in ultra vires
decision-making. These are negligence, breach of statutory duty and misfeance of public
office.

6.1 Negligence
Negligence are of two types namely: negligence in policy-making (which attracts no liability
in private law) and negligence in operation of policy (which does attract liability). Damages
are not awarded for loss caused by an ultra vires decision resulting from negligent policy-
making as in the case of Home Office v Dorset Yacht Club19. Unless, possibly, the
negligence is of such an extreme character as to render the decision totally unreasonable in
the Wednesbury sense as sated by , Lord Browne-Wilkinson in X v Bedfordshire County
Council20 (1995).
6.2 Breach of statutory duty
Damages for breach of statutory duty are awarded only if the particular statutory duty was
designed to confer private rights of action for compensation for breaches of that duty. Since
many statutory duties are designed for the benefit of the general public rather than for
particular individuals, it may be difficult to establish this point.

6.3 The tort of misfeasance in a public office

Misfeasance in a public office is a tort usually committed intentionally by public officials in
the exercise of their duty by an ultra vires decision or action, causing prejudice to another
entity. This is difficult to prove and hence damages are rarely awarded.

7.0 CONCLUSION

Therefore, it cannot be concluded that although judicial review offers solutions to wrong
decisions making process by public bodies, it is not an appeal as the decision of the Statutory
of public body is not substituted by a Court’s decision. It offers various remedies to initiate
action for redress, the final decision will have be taken by a Court of law after the decisions
making process has been reviewed. Some of the remedies are not binding on the parties. All
19
Home Office v Dorset Yacht Club (1970) AC 1004 (HL)
20
X v Bedfordshire County Council (1995) 3 All ER 353 (HL).

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grounds must be solidly proved for leave to be granted. Judicial review can only be resorted
to when all other means for redress, such as appeal, have been tried and failed.

8.0 Bibliography

1. Black's Law Dictionary Free Online Legal Dictionary 2nd Ed.- accessed from
https://thelawdictionary.org on 22.04.19
2. Dr Gunputh R.P (2018)-Constitutional Law and Administrative Law –Open
University of Mauritius, 2018.

3. Dr Gunputh R.P (2018) - Foundation of law and The Mauritian Legal System –Open
University of Mauritius, 2018.

4. Fordham M. (1997).- The Judicial Review Handbook, 2nd Edition, Wiley

5. Judicial review Grounds, an overview-accessed from

https://www.saunders.co.uk/news/judicial-review-grounds-an-overview.html-on
22.04.19

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6. Law Reform Commission Discussion Paper Judicial Review [November 2009]

accessed from http://lrc.govmu.org- on 23-04-19

7. Prerogative and Writs- The Online Legal Dictionary- accessed from https://legal-
dictionary.thefreedictionary.com/Prerogative+Writ on 21.04.19.
8. Supreme Court Judgments- accesed from www.supremecourt.govmu.org-Jugments –
on 23.01.19

9. UK Supreme Court Judgments accessed from https://www.supremecourt.uk on

23.04.19

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