How do judicial review proceedings work?
Judicial review is a two-stage process. In the first instance, an application for “leave” must be made within the prescribed time limits, as set out above.
The applicant must prepare court documents and set out in some detail what relief he is seeking, and on what grounds, and must go on to support his application with sufficient written and sworn evidence (in the form of an “affidavit”) from one or more persons, as relevant to the case.
The must then appear before the court and apply for leave on the basis of the papers that Counsel and Solicitors have prepared on the Applicants behalf. Apart from certain exceptions, this is done without notice to the intended respondent, and without the participation of such respondent. This is called “upon and ex parte basis “ which means without notice to the other side.
The court may partially or wholly grant the leave sought, and may do so on some or all of the grounds put forward. If leave is granted, whether wholly or partly, because the case is “arguable”, the court documents (including the affidavits) will be served upon the opposing party or parties, and they will have an opportunity to file papers in opposition, including affidavits in reply.
In the case of certain restrictive types of judicial review the application for leave must also be made on notice to the respondent, and leave will not be given unless there are “substantial grounds”, rather than just an “arguable case.”
Once the exchange of affidavits is complete, and any other matters arising in the case have been dealt with, the case will be assigned a hearing date. The matter will then proceed to a full hearing, but usually without oral evidence being given by witnesses (as their evidence will have been given on affidavit). The parties’ legal representatives will draw the attention of the court to the relevant portions of the affidavits and the documents appended to them, and make arguments and submissions based on these, and on the applicable law.
Is there an appeal against the High Court’s decision?
Unless there is some statutory restriction on an appeal from the High Court decision to the Supreme Court in any particular case, any decision of the High Court on a judicial review may be appealed to the Supreme Court.