The test for administrative appeals: JT (Jersey) Limited v Jersey Competition Regulatory Authority JRC23804 Dec 2013
The judgment issued on 29 November, 2013 in JT (Jersey) Limited v Jersey Competition Regulatory Authority JRC238 ("JT v JCRA") provides some much needed clarity with regard to the legal test for administrative appeals. The case relates to an appeal under the Telecommunications (Jersey) Law 2002 ("the Telecoms Law"). However, the guidance provided is of wider interest to anyone contemplating an appeal against a public body in Jersey, to a statutory body that may be facing an appeal against one of its decisions, or indeed to the legal practitioners advising those parties.
JT v JCRA involved a successful challenge by JT, represented by David Cadin of Bedell Cristin, against a decision of the JCRA which aimed to introduce a new system of line rental, namely wholesale line rental ('WLR') via a modification to JT's licence. The decision was quashed on the grounds that the JCRA did not comply with a fair procedure and also that their decided timescale for implementation of WLR was unreasonable.
In reaching its decision, the court considered in detail preceding cases on administrative appeals in order to establish the correct test for appeal under the Telecoms Law. Traditionally in Jersey an administrative appeal would be considered on the following three grounds; a) whether the decision was ultra vires, i.e. a decision that the authority was not empowered to make; b) whether the procedure followed was fair and correct; and c) the merits of the decision. Historically, it has not been clear to what extent the court can consider the merits of a decision. The narrow test which had been applied previously was very restrictive in that a decision could only be overturned if it were Wednesbury unreasonable, meaning so irrational that no reasonable decision maker could have come to that decision. However, there was also authority stating that a decision could be overturned if the decision were simply unreasonable rather than irrational and indeed authority to the effect that the court could overturn the decision if, in its view, it was wrong.
JT v JCRA provides clarity in relation to the third limb of the test which has been subject to varying interpretation in previous case law. While relating specifically to appeals under Article 12 of the Telecoms Law, it also provides useful guidance in relation to other administrative appeals including appeals under the Housing (Jersey) Law 1949 ("the Housing Law"), and its successor the Control of Housing and Work (Jersey) Law 2012 the Island Planning (Jersey) Law 1964 and its successor the Planning and Building (Jersey) Law 2002 (each "the Planning Law"), and the Financial Services (Jersey) Law 1998 ("the Financial Services Law").
The historic position
The court considered the wording of the legislation to be of key importance when deciding how the third limb of the test should be approached. No appeals under the Telecoms Law have previously come before the court, but there have been numerous appeals under the Housing Law, the appeal provisions of which are drafted on similar terms, i.e. an aggrieved party 'may appeal'. Other statutes such as the Planning Law and the Financial Services Law are drafted on much narrower terms and require a decision to be 'unreasonable' before an appeal can be allowed.
In a carefully reasoned judgment the court considered the many conflicting decisions on appeals and provided a cohesive and comprehensive narrative of these decisions.
The correct approach for appeals under the Telecoms Law
Ultimately, the court concluded that there was no requirement of 'unreasonableness' and an appeal under the Telecoms Law should be allowed if the court is satisfied that the decision is wrong. It came to this conclusion for three main reasons.
The first reason was the lack of qualification or restriction on the right of appeal contained in the Telecoms Law. In particular, unlike with the Planning Law and the Financial Services Law, there is no reference to any need for the decision of the JCRA to be unreasonable. The Bailiff considered this to be a conscious decision of the States when drafting the legislation, and had they wished to include this requirement in the Telecoms Law then logically they would have done so. The court concluded "the fact that there is no such provision [i.e. in relation to reasonableness] must suggest that there is a lower threshold for an appeal than in those Laws where the requirement of unreasonableness is specified".
The court also looked in further detail at the statutory provisions of Article 12. It referred in particular to the specific wording at Article 12(4) that meant that on appeal the court "is not restricted to a consideration of questions of law or to the facts contained in an application, or other information before the Authority" when it made its decision. It was concluded that the court was clearly free to receive further evidence, and this pointed to the court being entitled to reconsider the matter on its merits and to decide whether it would have come to the same decision. The fact that the statutory provisions meant the Court had the power to exercise a specified regulatory function in the same way as the JCRA also pointed to a wider test for appeal.
The court also considered overall that the trend in court decisions was moving towards allowing wider grounds of appeal, "not least to ensure compliance with Article 6 ECHR where this is applicable".
The court stressed that while it could intervene if satisfied the decision of the JCRA was wrong, the burden would be on the appellant to satisfy the court that this is so, and that when considering whether the burden had been satisfied "the Court will have due regard to the nature of the decision under appeal". As telecommunications is a complex and technical area it was acknowledged that there are many competing considerations requiring a high level of expertise. For this reason "the Court will accord a considerable level of respect to the judgment of the JCRA".
The court summarised its approach on appeals under the Telecoms Law as a consideration of the following three aspects:
"i) It will consider whether the decision was one which the JCRA was empowered to make i.e. was the decision ultra vires?
ii) It will look at the correctness and fairness of the procedure in order to decide whether the proceedings of the JCRA were in general sufficient and satisfactory.
iii) It will look at the merits of the decision (as well of course as considering matters such as whether the JCRA took into account any irrelevant factors or failed to have regard to relevant factors) and decide whether the appellant has satisfied it that the decision was wrong. In reaching its conclusion, it will give due weight to the decision of the JCRA bearing in mind its expertise and experience".
The court distinguished between the potential remedy for a grave procedural error or unfairness, where it would be likely that the decision be quashed and the matter remitted to the JCRA for reconsideration, and where a decision is found to be wrong. Where the court considers a decision to be wrong, it may make such an order as it thinks fit, which includes exercising the specified regulatory function itself.
The deliberations of the court are interesting in this case, in that they indicate the potential for the test on administrative appeal to be widened, not just in relation to the Telecoms Law, but also under the Housing Law. However, it should be noted that the Housing Law has recently been repealed. Its successor imposes a specific requirement for a decision to have been unreasonable and therefore may serve to limit the scope for appeal in the context of a housing decision.