Maharaj v National Energy Corporation of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judge | Lord Lloyd-Jones |
| Judgment Date | 30 January 2019 |
| Neutral Citation | [2019] UKPC 5 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0085 of 2017 |
| Date | 30 January 2019 |
[2019] UKPC 5
Lord Reed
Lady Black
Lord Lloyd-Jones
Lord Briggs
Lord Kitchin
Privy Council Appeal No 0085 of 2017
Privy Council
Hilary Term
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellant
Michael Fordham QC
Anand Ramlogan SC
Jessica Boyd
(Instructed by Alvin Pariagsingh)
Respondent
Kendell S Alexander
(Instructed by Charles Russell Speechlys LLP)
Heard on 29 October 2018
This appeal concerns delay in the making of an application for leave to apply for judicial review and, in particular, the precise significance of the presence or absence of prejudice to the rights of any person or detriment to good administration resulting from the grant of leave or any relief.
On 28 July 2009 the appellant, Mr Devant Maharaj, submitted a request for information to the respondent, the National Energy Corporation of Trinidad and Tobago (“the NEC”), under the Freedom of Information Act 1999 (“ FOIA”) by which he asked for the curriculum vitae and qualifications of the Chief Executive Officer of the NEC. By letter dated 18 August 2009 the NEC refused the request, pointing out that it had a President and not a Chief Executive Officer and asserting that the information sought was exempt from disclosure under section 30 of FOIA. Between 18 October 2009 and 13 January 2010, representatives for the appellant and the NEC engaged in pre-action correspondence in the course of which the NEC made and the appellant rejected a proposal for alternative dispute resolution. In letters dated 6 and 13 January 2010 the parties confirmed that, were the appellant to issue proceedings, the parties would be bound, in respect of the substantive outcome, by the decision of the court in parallel judicial review proceedings already before the court which raised similar issues (namely Case CV 2009-004428, Devant Maharaj v Education Facilities Co Ltd) (“the parallel proceedings”).
On 20 January 2010 the appellant issued an application for leave to apply for judicial review of the NEC's refusal to supply the requested information. With regard to the question of delay, the appellant maintained that there had been no undue delay in circumstances where he had been exploring alternative remedies, that any delay was justified and that, if the court were to find that there had been undue delay, time should be extended. By order dated 21 January 2011, following an ex parte application, Boodoosingh J granted the appellant leave to apply for judicial review. On 22 February 2011 the NEC applied for an order setting aside the grant of leave on the grounds that the appellant's application had not been made promptly and there had been unreasonable delay. By letter dated 29 April 2011 the parties informed the court that on 7 April 2011, in the parallel proceedings, Rajnauth- Lee J had held that the documents requested were not exempt documents and had ordered that they be disclosed. They confirmed to the court that the NEC would not pursue its submissions of 24 March 2011, that the appellant would make no submissions on the substantive merits of his application and that the only issues for the court's determination were the issues of delay and costs. It was, as a result, common ground that the appellant would succeed on his claim for judicial review if it were permitted to proceed. Following a hearing on 3 June 2011, Boodoosingh J granted the NEC's application and set aside the grant of leave. In a written judgment dated 3 October 2011 he stated that there was no proper explanation for the delay in filing the application beyond 7 December 2009 and concluded that there had been unreasonable delay in filing the application for judicial review. He made no order for costs in light of the fact that the substance of the matter had been determined in the appellant's favour.
The appellant appealed to the Court of Appeal (Jamadar, Bereaux and Smith JJA). The issues on the appeal were, having regard to section 11 of the Judicial Review Act, 2000 and rule 56.5 of the Civil Proceedings Rules 1998, as follows:
(1) Whether the judge erred in concluding that there had been unreasonable delay in the filing of the appellant's application for leave to apply for judicial review;
(2) If not, whether he erred in declining to exercise his discretion to extend time for judicial review and in refusing leave on this basis alone without consideration of other factors including whether the delay was such as to “substantially prejudice the rights of any person” or to be “detrimental to good administration”; and
(3) If not, whether he had in any event erred in setting aside his prior grant of leave on this basis.
The appeal was heard on 29 July 2016. On 26 April 2017 the Court of Appeal (Jamadar JA dissenting) dismissed the appeal on the grounds that:
(1) There had been unreasonable delay in bringing the application for leave to apply for judicial review;
(2) The judge had not erred in declining to extend time on the sole ground of unreasonable delay;
(3) Since the objection was to delay, that did not require consideration of prejudice or detriment to good administration;
(4) The judge's exercise of his discretion to set aside a prior grant of leave on the basis of the perceived unreasonable delay had not been plainly wrong.
Final leave to appeal to the Judicial Committee of the Privy Council was granted by order dated 24 July 2017. At the hearing of the appeal we were informed by counsel that, following the grant of leave by the Board, the information sought by the FOIA request has now been provided by the NEC to the appellant, but that the appeal and the judicial review proceedings have not been conceded by the NEC.
Section 11 of the Judicial Review Act provides in the relevant part:
“(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, 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.
…”
The Civil Proceedings Rules 1998 (“CPR”) provide:
“Delay
56.5(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.”
In this judgment the term “prejudice” is used to refer to substantial hardship or prejudice to the rights of any person and “detriment” to refer to detriment to good administration.
In the recent decision of the Judicial Committee in Fishermen and Friends of the Sea v Environmental Management Authority [2018] UKPC 24, [2018] PTSR 1979 (“ Fishermen 2”) Lord Carnwath (paras 23– 25) drew attention to the conflicting lines of authority in this jurisdiction, including the decision of the Court of Appeal in these proceedings, in relation to the treatment of prejudice and detriment resulting from delay in applying for judicial review. It is convenient to start by examining the leading decisions.
In Fishermen and Friends of the Sea v Environmental Management Authority (unreported) 30 August 2002 (HCA No 1715 of 2002) (“ Fishermen 1”), the applicant sought leave to bring judicial review of a decision to grant a certificate of environmental clearance to BP Trinidad and Tobago (“BPTT”). Objection was made on grounds of delay, the application having been filed more than three months after the decision was made. 1 Bereaux J, sitting at first instance, drew attention to the judgment of Ackner LJ
in R v Stratford-on-Avon District Council, Ex p Jackson [1985] 1 WLR 1319, which was approved in the House of Lords in R v Dairy Produce Quota Tribunal for England and Wales, Ex p Caswell [1990] 2 AC 738, decisions which, although not binding, he considered highly persuasive. His summary of the law as stated in those cases included the following:“(4) If there is good reason shown for extending time, the court may grant an extension. But even if the court considers that there is good reason, it may still refuse leave if the granting of the relief sought would be likely to cause hardship or prejudice or be detrimental to good administration.”
The judge then followed a structured approach. First, he considered whether good reason had been shown for extending the time for issuing proceedings. There was no contest that the application was outside the three-month period and that therefore there had been undue delay. Having considered the submissions of the parties, he concluded that no good reason had been put forward for the grant of an extension of time. Prejudice and detriment were not considered at this stage. Secondly, he considered whether the extension of time or the grant of...
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