Share
In Bermuda, our superior court of first instance, the Supreme Court of Bermuda, has the power to judicially review the determinations of public decision makers. That jurisdiction is substantially similar to that exercised by the courts of England and Wales. Bermudian courts follow the jurisprudence of England and Wales in deciding matters concerning judicial review. By and large, the availability of judicial review in Bermuda provides applicants with a flexible and nimble means of challenging the decisions of public authorities in a timely manner.
Before judicial review proceedings can be issued, the applicant must first seek leave from the Supreme Court of Bermuda on an ex parte basis. Such applications must be “prompt” and in any event must be filed no later than six months after the decision in issue has been made. While it is possible to obtain an extension of time from the Court in filing a leave application, such discretion will only be exercised in exceptional cases.
To make a leave application, the applicant must file a Form 86A, which summarizes the decision in issue and the grounds upon which the application for judicial review is based. The Form 86A also requires the applicant to identify the relief that is being sought, namely:
- an interlocutory injunction (if applicable, as the grant of leave may act as an automatic stay of the decision in issue;
- a declaration;
- an order of prohibition;
- an order for certiorari;
- an order of mandamus; and / or
- damages.
The Form 86A must also be filed with an affidavit which provides the evidential foundation for the application.
It is open to an applicant to file a leave application “on the papers”, meaning that the Court is asked to grant leave without the need for an oral hearing. Where applicants choose to seek leave “on the papers”, it is best practice to file a brief written submission citing authorities establishing that the case is “arguable”, which is the required threshold for the grant of leave.
Where there is an issue as to whether leave should be granted, the applicant should file the application on an ex parte on notice basis. This means that the applicant will be heard in chambers and the opposing party will be notified of the date and time of the hearing. The opposing party will then be able to attend the hearing, but will generally only be able to speak if questioned by the judge. If the leave application is not dismissed at the ex parte stage, the judge will then afford the opposing party the chance to be heard fully at an inter partes hearing, which is normally held within 14 days of the initial appearance.
The Court may issue an ex tempore order granting leave at the conclusion of the inter partes hearing. At that time, it is also standard practice for the Court to issue directions in relation to the substantive hearing. Such directions normally include filing the notice of originating motion setting the timetable for the filing of affidavit evidence, setting the date of the substantive hearing, and filing written submissions.
If leave has been granted on the papers, it is open to the respondent to apply to the Court to have the grant of leave set aside. Grounds justifying such an application may include material non-disclosure or failure to cite case law that would justify a denial of the leave application or other material error that would have affected the grant of leave at first instance.
Should either party desire to cross-examine an opposing witness at the substantive hearing, leave must be sought from the Court in advance. Although the Court has the discretion to grant leave to cross-examine a witness, permission will only be given where the justice of the case requires it.
It is also possible for Bermudian courts to grant declarations where the relief sought engages the Bermuda Constitution Order 1968 (“Constitution”) which ratifies and guarantees most of the protections afforded by the European Convention on Human Rights (“the Convention”). In rare cases, judicial review may also be used as a means of enforcing protections afforded by the Convention that have not been ratified in the Constitution, such as Article 8 rights.
Bermuda