Availability of Judicial Review:

AJA Bdos:

 S. 3(1): an application to the court against an administrative act/ omission may be made
by way of an application of JR in accordance with the AJA and with rules of court.

JRA TT:

 S. 5 (1): an application for JR… shall be made to the Court and in accordance with this
Act.
 S. 5 (2): people who have standing to make an application for JR. The court may grant
relief to any person whose interests are adversely affected by a decision.
 S. 5 (3): the grounds upon which the court may grant relief to a person who filed an
application for review.
 S. 5 (4): alternative grounds may be relied upon by an applicant.
 S. 5 (5) & 5 (6): public interest litigants and disadvantaged persons.

Leave of the Court:

AJA Bdos: no requirement that the applicant must first get leave of the court.

JRA TT:

 S. 6(1): no application for JR shall be made unless leave of the court has been obtained.
 S. 6 (2): applicant has a sufficient interest in the matter to which the application relates.
 S. 7: leave of the court in a matter of public interest

 CO Williams Construction Ltd v Blackman: depended on the sufficiency of the evidence,

content to assume without deciding that this was the correct approach.
 Sharma v Brown-Antoine: arguable ground for JR having a realistic prospect of success
for leave of the court. Not enough that a case is potentially arguable.

Delay:

JRA TT:
 Section 11 (1): application for JR shall be made promptly, within 3 months from the date
when grounds for the application first arose unless there is good reason for extending
the period.

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  Section 11 (2): court may refuse to grant leave to apply for JR if it considers that there
has been undue delay in making the application, 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.
 Section 11 (3): the court shall have regard to the time when the applicant became aware
of the making of the decision, and such other matters ad it considers relevant.

AJA Bdos:
 Section 8: the court may, if it thinks fit, refuse to grant any relief under this Act if it
considers that there has been undue delay in making the application for judicial review,
and that the grant of the relief sought would cause substantial hardship to, or would
substantially prejudice the rights of, any person, or would be detrimental to good
administration.

 Lloyd v Attorney General of Barbados: the language of section 8 has to be unreasonably

and excessively strained, in order to support a construction of the section as enabling a
Court to strike out in limine an application for review under the Act.

Claimants and standing:

AJA Bdos:
 s 6: the court has a discretion to grant an application for judicial review to any person
whose interests are adversely affected by an administrative act or omission; or any
other person if the court is satisfied that that person’s application is justifiable in the
public interest. (Does not specifically state ‘any individual’, so a company or any other
legal person can apply for judicial review under the AJA)

JRA TT:
 Section 5(2): the court may grant relief to: (a) a person whose interests are adversely
affected by a decision; or (b) 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.

 Section 6(1): no application for judicial review shall be made unless leave of the court
has been obtained in accordance with the rules of court.

 Section 6(2): provides that 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): 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.

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  Benjamin v Attorney General of Antigua: the matter of standing should be considered
after a determination of the substantive issues raised by the application.

 Frank v Attorney General of Antigua: If the application for the declaration or injunction
is made in proceedings for judicial review, the locus standi of the applicant is
determined by reference to whether or not the applicant has a sufficient interest in the
matter to which the application for judicial review relates.

 Trinidad and Tobago Civil Rights Association v Manning: the persons who were
aggrieved were the several villagers and the appellant acted on their behalf because of
their disadvantaged position. JRA TT 5 (6) Where a person or group of persons aggrieved
or injured by reason of any ground referred to in paragraphs (a) to (o) of subsection (3),
is unable to file an application for judicial review under this Act on account of poverty,
disability, or socially or economically disadvantaged position, any other person or group
of persons acting bona fide can move the Court under this section for relief under this
Act.

 R v IRC, ex p National Federation of Self Employed and Small Businesses Ltd: the test of
standing was whether the applicant could show a strong enough case on the merits
judged in relation to his own concern with it. The court continued that the claimants
must also show that his rights were adversely affected.

 Re Blake: the application was unmeritorious and, therefore, decided that it was
unnecessary to consider whether the applicant had locus standi, either by way of
sufficient interest or relevant interest, in the subject matter of the application.

Interveners:

JRA TT:
 Section 14(1): any person who has an interest in a decision which is the subject of an
application for judicial review may apply to the Court to be made a party to the
proceedings.
 section 14(2): court grant the application either unconditionally or subject to such terms
and conditions as it thinks just; (b) refuse the application; or (c) refuse the application
but allow the person to make written or oral submissions at the hearing.

 Re Sawmillers Cooperative Society Ltd: The court stated that, in relation to the test to
be applied as to who was a ‘proper person’ for the purposes of a judicial review
application.

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 It must include those persons whose interests are directly and adversely affected by the
decisions of the relevant body.

The interveners had demonstrated that their pecuniary and proprietary rights had been
and would continue to be directly affected by the proceedings. Persons allowed to
intervene are persons whose rights are directly affected.

Capacity:

 La Clery Football Club v St Lucia Football Association: the court considered the issue of
the effect of the absence of legal personality in the parties to the judicial review
application. Football club could only sue through its representatives.

 Sykes v Minister of National Security and Justice: It continued that it could not be the
law that any group of persons might assume a name and then seek redress against a
legal entity, unless some statute gave them that right.

Companies:

 Attorney General of St Kitts and Nevis v Lawrence: the court was of the opinion that a
corporation had a legal entity separate from that of its shareholders and that, therefore,
in the case of a corporation, whether the corporation itself or the shareholder would be
entitled to impeach the validity of the statute would depend upon the question whether
the rights of the corporation or of the shareholders had been affected by the impugned
statute.

Defendants & Decisions subject to JR: What is the source of the power of the decision?

Public Authorities

Cabinet:

 C.O. Williams Construction Ltd v Blackman: Issues: (1) Was the decision of the Cabinet
an exercise of prerogative power or of statutory power?; (2) Is a decision of the Cabinet
of the kind here in question such as to be subject in principle to judicial review?
It is trite law that when the exercise of some governmental function is regulated by
statute, the prerogative power under which the same function might previously have
been exercised is superseded’ and that, ‘so long as the statute remains in force, the
function can only be exercised in accordance with its provisions’.
When the Cabinet exercises a specific statutory function which, had it been conferred
on a Minister instead of the Cabinet, would unquestionably have been subject to judicial

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 review, their lordships can see no reason in principle why the Cabinet’s exercise of the
function should not be subject to judicial review to the same extent and on the same
grounds as the Minister’s would have been.

Amenability to Judicial Review:

 Re Jamat Muslimeen: ‘the source of the decision-making power in judicial review

proceedings must emanate from: (a) a Statute; (b) subordinate legislation made under a
statute; or (c) the prerogative i.e. the common law’.

A public right only arises where the source of the power purported to be exercised by
the decision maker is derived from statute, subordinate legislation, or the prerogative.

The proper test of whether a body was subject to judicial review was amenable to
judicial review was that it must purport to act under a statute, under subordinate
legislation or under the prerogative.

 Barbados Cricket Association v Pierce: made reference to the decision of ex p Datafin

plc: panel operated ‘wholly in the public domain’… the wide-ranging nature and
importance of the matters covered by the code, and the public law consequences of non-
compliance, the panel is performing a public duty in prescribing and operating the code.

 Sir Thomas Bingham MR in R v Disciplinary Committee of the Jockey Club, ex p Aga

Khan: the effect of ex p Datafi n was ‘to extend judicial review to a body whose birth
and constitution owed nothing to any exercise of governmental power but which had
been woven into the fabric of public regulation in the field of take-overs and mergers’.

 CCSU: Lord Diplock: the source of the power will often, perhaps usually, be decisive; if
the source of power is a statute or subordinate legislation under a statute, then clearly
the body in question will be subject to judicial review; if, at the other end of the scale,
the source of power is contractual, as in the case of private arbitration, then clearly the
arbitrator is not subject to judicial review.

But in between these extremes there is an area in which it is helpful to look not just at
the source of the power but at the nature of the power’ and, second, if the body in
question is exercising public-law functions, or if the exercise of its functions has public-
law consequences, then that may, as counsel for the applicants submitted, be sufficient
to bring the body within the reach of judicial review.’

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Statutory corporations:

 Re Mahabir Raman: the ‘true test of the Court’s jurisdiction . . . is whether the powers
and functions of the respondent are public in nature’, observing that it is that issue
‘which determines the issue of jurisdiction’.

The recent approach is to identify the type of functions performed by the public
authority and to determine whether they are functions of a public law system, are of a
public law character or have public law consequences.

Public service and other commissions:

 Nelson v Attorney General of Antigua: the applicant’s case was that ‘his termination
was unlawful since the Commission breached well established principles of natural
justice’, the court held that they ‘they fall squarely within public law and are amenable
to judicial review’.

Exclusion of JR:

Discretionary remedy:

 The court will be very guarded before exercising its jurisdiction to quash decisions of
bodies which are not inferior tribunals.

 Gulf Insurance Limited v Central Bank of Trinidad and Tobago: even if it had held that
the decisions of the Central Bank were ultra vires, it was now impractical to quash the
decisions, some eight or more years after, since to do so would affect innocent third
parties.

Non Justiciability:

 Vellos v Prime Minister of Belize: not satisfied that the requirement of a referendum
pursuant is a fetter on the Legislature or unconstitutional or that the claimants’ case is
misconceived or political and, therefore, nonjusticiable as has been argued for the
defendants’.

Actions of the executive:

 Re Blake: The court stated that ‘[t]he decision to appoint a Prime Minister or any other
Minister of Government is one of the many decisions which are made in the exercise of
prerogative powers’ and ‘which are not justiciable or subject to judicial review for the

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 simple reason that the subject matter of the decision is not amenable to the judicial
process’.

 Re Office of Prime Minister: court would have no jurisdiction if the issue raised was
wholly or very substantially a political one, which, by its nature and in reality, involved
the exercise of a political judgment, as opposed to a legal one.

National Security:

 National security considerations trump considerations of natural justice.

 Oliveira v Attorney General of Antigua and Barbuda: national security issues are not
wholly outside judicial review but the court will confine itself to deciding whether the
decision-maker, usually a minister, is acting in good faith within the language of the
governing legislation, if any.

 ‘it is not part of the Court’s function to determine who should or should not be deemed
a prohibited immigrant’. However, it noted that ‘even in cases of national security the
court has a duty to consider the circumstances and context of the case’ when called
upon to review the exercise of a discretionary power; and that ‘evidence is also needed
so that the court may determine whether it should intervene to correct any alleged
excesses or abuse of power or irrationality’.

 Lord Scarman, in the Council of Civil Service Unions v Minister for the Civil Service said:
Once the factual basis is established by evidence so that the court is satisfied that the
interest of national security is a relevant factor to be considered in the determination of
the case, the court will accept the opinion of the Crown or its responsible officers as to
what is required to meet it, unless it was possible to show that the opinion was one
which no reasonable minister advising the Crown could in the circumstances reasonably
have held.

The military and defence force:

 The courts have noted that matters concerning the internal workings of these are not to
be subject to judicial review. In other words, they are non-justiciable and the courts
would not inquire into the merits of the case where either of these is implicated on the
facts.
Re Clarke: The court noted that there was an abundance of authority of respectable
vintage and sufficient consistency to support this proposition.

 Young v Chief of Staff of the Barbados Police Defence Force: the orders of certiorari and
mandamus should not be granted under the AJA, because the High Court should not
intervene in matters relating to military law and discipline.

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Alternative Remedy:

 Barrimond v Public Service Commission: The court noted that ‘[a]n alternative remedy
or avenue of redress must be “more convenient, expeditious and effective” than that
provided in judicial review proceedings.

 Kirk Freeport Plaza Limited v Immigration Board: It was also argued that there was an
alternative remedy by way of appeal and that judicial review was not an appropriate
remedy. It was only exceptionally that judicial review would be granted before the
alternative remedy was exhausted.

 Commonwealth Trust Limited v Financial Services Commission: the court was of the
opinion that the law was well established: judicial review was a discretionary remedy
and could not be pursued without a claimant first obtaining leave of the court.

Constitutional ouster Clauses:

 Phillip v AG of Bahamas: ‘[a]n ouster clause therefore shields a determination from

appeal or review unless the person or authority empowered to make the decision
makes one which is a nullity because it goes outside the prescribed jurisdiction or fails to
obscure the rules of natural justice.’

 Re Aubrey Norton: the court was of the opinion that the import of that decision was
that there was no intrinsic difference between a constitutional ouster clause and a
statutory ouster clause, and the same principles will apply in construing them.