Order 40 — Application for Judicial Review

(1) An application for:

(a) an order of mandamus, prohibition or certiorari; or

(b) an injunction restraining a person from acting in any office in which the person is not entitled to act, shall be made by way of an application for judicial review in accordance with the provisions of this Order.

(2) An application for a declaration or an injunction (not being an injunction in rule (1)(b) of this Rule) may be made by way of an application for judicial review and the court may grant the declaration or injunction if it deems it just and convenient to grant it by way of judicial review, having regard to:

(a) the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition or certiorari;

(b) the nature of the persons and bodies against whom relief may be granted by way of such an order;

(c) all the circumstances of the case.

On an application for judicial review, any relief mentioned in Rule 1 of this Order may be claimed as an alternative or in addition to any other relief so mentioned if it arises out of, relates to or is connected with the same matter.

(1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this Rule.

(2) An application for leave shall be made ex parte to the Judge and shall be supported by:

(a) a statement setting out the name and description of the Applicant, the reliefs sought and the grounds on which they are sought;

(b) an affidavit in support of the application for leave.

(c) a written address in support of the application for leave.

(3) A Judge hearing an application for leave may allow the Applicant’s statement to be amended, whether by specifying different or additional grounds of relief or otherwise, on such terms, if any, as the Judge deems fit.

(4) A Judge shall not grant leave, unless the Judge considers that the Applicant has a sufficient interest in the matter to which the application relates.

(5) Where leave is sought to apply for an order of certiorari to remove for the purpose of being quashed any judgment, order, conviction or other proceedings which is subject to appeal and a time is limited for the bringing of the appeal, the Judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

(6) Where leave to apply for judicial review is granted, then:

An application for judicial review shall be brought within 3 months of the date of occurrence of the subject of the application.

(1) Where leave has been granted, the application shall be made by motion or by summons.

(2) The notice of motion or summons shall be served on all persons directly affected, and where it relates to any proceedings before a Judge and the object of the application is either to compel the Judge or an officer of the Court to do any act in relation to the proceedings, or to quash them or any order made therein, the notice or summons shall also be served on the Clerk or Registrar of the Court and, where any objection to the conduct of the Judge is to be made, on the Judge.

(3) Unless the Judge granting leave has otherwise directed, there shall be at least 7 days between the service of the notice of motion or summons and the day named therein for the hearing.

(4) A motion or summons shall be entered for hearing within 14 days after the grant of leave.

(5) If, on the hearing of the motion or summons, the Judge is of the opinion that any person who ought to have been served, whether under this Rule or otherwise, has not been served, the Judge may adjourn the hearing on such terms, if any, as the Judge may direct in order that the notice or summons may be served on that person.

(1) Copies of the statement in support of an application for leave under Rule 3 of this Order shall be served with the notice of motion or summons and, subject to sub-rule 3 of this Rule, no grounds shall be relied upon or any relief sought at the hearing except the grounds and relief set out in the statement.

(2) The notice of motion or summons shall be supported by an affidavit and shall be accompanied by a written address in support of the relief sought.

(3) The Judge may, on the hearing of the motion or summons allow the Applicant to amend the statement, whether by specifying different or additional grounds of relief or otherwise, on such terms, if any, as the Judge deems fit and may allow further affidavits to be used if they deal with new matters arising out of an affidavit of any other party to the application.

(4) Where the applicant intends to ask to be allowed to amend the statements or to use further affidavits, the Applicant shall give notice of such intention and of any proposed amendment to every other party.

(5) Each party to the application shall supply to every other party a copy of every affidavit which the party proposes to use at the hearing including, in the case of the Applicant, the affidavit in support of the application for leave under Rule 3(2) of this Order.

On an application for judicial review, the Judge may, subject to Rule 2 of this Order, award damages to the Applicant if:

(a) the Applicant has included in the statement in support of the application for leave under Rule 3 of this Order a claim for damages arising from any matter to which the application relates and

(b) the Judge is satisfied that if the claim had been made in an action begun by the Applicant at the time of making the application, the Applicant could have been awarded damages.

Any interlocutory application in proceedings on an application for judicial review may be made to the Judge.

(1) On the hearing of any motion or summons under Rule 5 of this Order, any person who desires to be heard on the motion or summons, and appears to the Judge to be a proper person to be heard, shall be heard notwithstanding that the person has not been served with notice of the motion or the summons.

(2) Where the relief sought is or includes an order of certiorari to remove any proceedings for the purpose of quashing them, the Applicant may not question the validity of any order, warrant, commitment, conviction, inquisition or record unless, before the hearing of the motion or summons, the Applicant has filed a copy thereof verified by affidavit or accounts for the failure to do so to the satisfaction of the Judge hearing the motion or summons.

(3) Where an order of certiorari is made in any such case as is referred to in sub-rule 2 of this Rule, the order shall, subject to sub-rule 4 of this Rule, direct that the proceedings shall be quashed forthwith on their removal into Court.

(4) Where the relief sought is an order of certiorari and the Judge is satisfied that there are grounds for quashing the decision to which the application relates, the Judge may, in addition to quashing it, remit the matter to the Court, tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the Judge.

(5) Where the relief sought is a declaration, an injunction or damages and the Judge considers that it should not be granted on an application for judicial review but might have been granted if it had been sought in an action begun by Writ by the Applicant at the time of making the application, the Judge may, instead of refusing the application, order the proceeding to continue as if it had been begun by Writ.

No action or proceeding shall begin or be prosecuted against any person in respect of anything done in obedience to an order of mandamus.

Where there are two or more applications pending against several persons in respect of the same matter and on the same grounds, the Judge may order the applications to be consolidated.