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The Judicial Review 'Filter' and need for Open Justice

In a recent unreported decision (FSD No. 30 of 2019), Justice Kawaley explored the important issues of the ‘filter’ deployed by the judiciary in judicial review applications and the concept of ‘open justice’, i.e. the general need for justice to be conducted in public unless exceptional circumstances apply.

In his judgment, Justice Kawaley recognised that the dominant purpose of the remedy of judicial review was to promote the interests of good public administration. The necessity for the Courts to ‘filter’ cases via the requirement for applicants to formally apply for leave to seek judicial review was, in the Judge’s view, clearly necessary to “ensure that the process of judicial review does not itself undermine the interest of good administration”. Without a leave to appeal filter, Justice Kawaley clearly saw a danger for the harassment of public bodies through irresponsible or vexatious applications, echoing the decision of the House of Lords in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd.

Justice Kawaley stated:

“It seems quite obvious that if public bodies had to respond to every judicial review application which was filed, no matter how frivolous, their work would not only be interrupted by dealing with the complaints. Their work might also have to be placed on hold because of anxieties as to their ability to carry on with it while a challenge is pending.”

Such paralysis would clearly be contrary to efficient public administration.

Separately, Justice Kawaley also considered the need to balance the requirement in some cases to maintain the confidentiality of parties (and the issues litigated by them) by excluding matters from the public register with the need to adhere to the open justice principle. He cited with approval two decisions of the Chief Justice in Cayman Islands (Re Sphinx and Ahmad Hamad Algosaibi & Bros Co v Saad Investments Co Ltd) which addressed the principle, together with a famous passage from Lord Shaw in the House of Lords 1913 case of Scott v Scott:

“Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity…”

In the context of this case, Justice Kawaley was satisfied that the open justice principle was not engaged at all in relation to an application for leave to seek judicial review. Further he found that even if the principle had been engaged, the confidential nature of much of the material justified a sealing Order in any event.

Harneys previously blogged about other issues examined by Justice Kawaley in the same judgment, namely the issue of maintaining confidentiality in proceedings with the Court’s leave.

The Judicial Review 'Filter' and need for Open Justice

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