Knowledge

Judicial review proceedings in Guernsey provide a means of redress to challenge administrative decisions that have been made by States of Guernsey departments and regulatory bodies, in situations where appeal tribunals and review board services are not available or have been exhausted. These proceedings are generally rare outside planning cases, but the courts have seen a relatively recent rise in cases where decisions made by the Island's financial services regulator and competition regulator are being judicially reviewed by the Royal Court (the "Court").

The Court is focussed on the process by which the decision was made (i.e. procedure and legality) rather than the merits of the decision itself. Remedies are discretionary (the Court doesn’t have to make any award at all) and can include quashing, prohibiting or mandatory orders, declarations, injunctions and even damages, in limited circumstances. 

Core requirements (that apply to all cases):

• Standing - an applicant must have sufficient interest in the decision itself (judicial commentary has suggested that courts should alert to improper motives).
• Promptness - case law and local practice direction dictates that proceedings should be brought within three months; 28 days for the Guernsey Financial Services Commission (the "GFSC") statutory appeals.
• Last resort - all alternative avenues of appeal, such as appeal tribunals and review board services, should be exhausted.
• Grounds of challenge - must be established.
• Arguability - there must be a realistic prospect of success.

An application for judicial review must be arguable, with a realistic prospect of success and be an appropriate case for judicial review, in that there must be an appealable decision. The traditional grounds are:

• illegality or ultra vires – authorities acting outside of powers;
• irrationality – a decision so unreasonable it is considered irrational or perverse;
• procedural impropriety – concerning bias and the fundamental right to be heard; and
• legitimate expectations – for example from statements and/or prior conduct.

If a statutory route of appeal is available as above, it is rare that the Court will permit an application for judicial review.

GFSC statutory appeal grounds are similar to those for judicial review:

• ultra vires/error of law;
• unreasonableness;
• bad faith;
• disproportionality; and
• material error of fact or procedure.

In Guernsey, the Court has been known to grant permission to apply for judicial review in exceptional circumstances, rather than relying on a discrete and established ground for review, such as circumstances where judicial review proceedings would be particularly appropriate.

Further appeals from the Court to the Court of Appeal and thereafter the Judicial Committee of the Privy Council are available where appropriate, subject to the usual requirements of applying for leave.

With strict procedural hurdles and discretionary but powerful remedies available in limited cases, early legal advice on judicial review or statutory appeal routes in Guernsey is crucial. Bedell Cristin has practical hands-on experience in judicial review cases, most recently in current and long-standing litigation regarding a decision taken by the Island's competition regulator. For more information, please get in touch with one of the contacts listed.