RAISING THE BAR

• Author: WONG Huiwen Denise LLM (New York University), MA (University of Cambridge); Research and Teaching Fellow, Attorney-General's Chambers Academy. Makoto HONG Cheng LLB (Singapore Management University); State Counsel, Attorney-General's Chambers.
• Date: 01 December 2016
• Citation: (2016) 28 SAcLJ 527
• Published date: 01 December 2016

Amending the Threshold for Leave in Judicial Review Proceedings *

Following Chan Hiang Leng Colin v Minister for Information and the Arts[1996] 1 SLR(R) 294, the appropriate threshold for granting leave applications in judicial review proceedings is that of the “prima facie case of reasonable suspicion” or “what might on further consideration turn out to be an arguable case”. This article argues for a higher threshold to be imposed, where leave will only be granted where it is clear to the judge that the case is arguable based on the information and evidence available before the judge. It is argued that a higher default threshold would accord better with the purpose of the leave requirement, which is to act as an effective filter against unmeritorious claims. It is also in accord with international practice. Further, this article explores the possibility that in certain circumstances, it may be appropriate to apply an enhanced arguability test so that leave in judicial review proceedings is only granted when the case has a real prospect of success.

I. Introduction

1 The administrative law landscape in Singapore is fast maturing, with a significant number of judicial review cases having been heard by the courts in the last five years. This trend is to be welcomed, for it demonstrates an increase in the public consciousness vis-à-vis the reviewability of decisions made by public authorities and the checking function played by the courts against executive excess.

2 At the same time, an unfettered ability to challenge the decisions of public authorities is to be eschewed as there is an equally strong public interest in ensuring that such bodies are protected against weak and vexatious claims. In order to operate effectively, public authorities must have the freedom to operate without having to divest finite time and resources to managing and responding to unmeritorious actions. As a matter of public accountability and operational transparency, an authority should, where appropriate, be expected to account for its decisions and actions. However, constraints on resources being an inevitable fact, appropriate filters must be put in place to ensure that the duty incumbent upon a public authority to rationalise its behaviour when queried is not so onerous that its ability to operate effectively is compromised.

3 It is in this context that the leave requirement in judicial review proceedings must be understood. The leave requirement provides an appropriate sieve in the public interest, filtering out weak and vexatious claims which would otherwise increasingly impinge upon limited public resources. The chilling effect of prospective litigation is also not to be underestimated. Governmental action would inevitably be stifled if officials had to constantly make policy plans and operational decisions against the backdrop of constant challenge. The leave requirement safeguards against this by reducing the uncertainty public authorities may face when deciding upon whether they can safely proceed with administrative actions while judicial review proceedings are pending.

4 On the part of the court, the leave requirement provides a mechanism for the efficient management of the judicial review caseload since many claims can be disposed of at this stage with minimum use of the court's resources. Leave hearings tend to pertain less to disputes of fact, turning instead on legal points or affidavit evidence. They require less getting up and are more easily disposed of as compared to a full hearing. The leave hearing is also a good opportunity for the court to filter out frivolous and unmeritorious claims, thereby preventing the court's time from being wasted by “busybodies with misguided or trivial complaints of administrative error”.1 Further, from the claimant's point of view, the leave requirement enables him to obtain the views of the court on the merits of his application expeditiously and cheaply.

5 In order for the leave mechanism to fulfil the purposes set out above, it must be properly calibrated to function in a meaningful and effective way. To this end, it is suggested that the current leave threshold set out in Chan Hiang Leng Colin v Minister for Information

and the Arts2 (“Colin Chan”) is outdated and ill-suited to serve the aforementioned purposes. In particular, the test of “what might on further consideration turn out to be an arguable case” is too low and fails to function as an effective filter against obviously weak and unsustainable as well as vexatious cases. It is posited instead that a higher threshold should be imposed by default in all judicial review proceedings. Using the proposed threshold, leave will only be granted where it is clear to the judge that the case is clearly arguable based on the information and evidence available before the judge (the “arguability test”). It is argued that a higher default threshold would accord better with the purpose of the leave requirement and achieve a better balance between two competing public interests – that of citizens having access to the courts, and ensuring that the work of public authorities is not needlessly hampered by unwarranted intrusion and scrutiny.

6 In addition to a higher default threshold, this article goes further to consider whether the High Court should be accorded the discretion to impose an enhanced standard above the default threshold in specific circumstances. The judge may consider a variety of factors in deciding what standard to apply. For instance, an enhanced standard may be warranted when there are little or no disputes of fact, or when the judge has already heard detailed and complete arguments at the leave stage. This comports with current trends in international practice and is also in accordance with the policy and principles undergirding the requirement of leave in judicial review proceedings.

II. Surveying the landscape – Current law in Singapore on the leave threshold in Order 53 proceedings

7 Order 53 r 1 of the Rules of Court3 prescribes the requirement of leave as a prerequisite for an application for a mandatory order, prohibiting order or quashing order. The threshold test for leave to be granted in such proceedings is trite law and remains as stated in Colin Chan, namely whether the material before the court discloses what might on further consideration turn out to be an arguable case in favour of granting the specific relief sought (the “potential arguability test”). Colin Chan also posited a second, slightly different articulation of the relevant test, namely whether the material before the court discloses a prima facie case of reasonable suspicion that the applicant is entitled to the specific relief sought (the “reasonable suspicion test”). The court in Colin Chan took the view that both tests presented a low threshold and

questioned whether there was any real difference in substance between the two interpretations.4

8 Both the potential arguability and the reasonable suspicion tests require the applicant to demonstrate the factual and legal tenability of the specific relief sought. It is not an illusory threshold. Mere assertions, or evidence and arguments that are skimpy and vague, are insufficient to surmount the leave threshold. It is also worth noting that in ManjitSingh v Attorney-General,5 the High Court preferred the potential arguability test to the reasonable suspicion test because the latter formulation was made in the factual context of Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd6 (“IRC”). According to Vinodh Coomaraswamy JC (as he then was), it was appropriate for Lord Diplock to have applied the reasonable suspicion test in IRC because the applicant's only argument was that the respondent tax authority had acted ultra vires due to a hidden improper motive. In most judicial review proceedings, the reasonable suspicion test would be of questionable applicability because “the grounds for alleging an act was illegal, irrational or procedurally improper will ordinarily be manifest”.7

9 Yet, whichever the preferred formulation, this requirement is undoubtedly low, as recognised by the court in Colin Chan. In particular, the potential arguability test requires that leave be granted where the judge finds that the case may “on further consideration” turn out to be arguable. The advantage of a low threshold test is that an applicant may often have enough material to surmount the threshold test even if he does not, at that stage, have material that would satisfy a balance of probabilities test during a substantive hearing. Once the applicant is able to satisfy the threshold test, there is a possibility of the respondent complying with his duty of candour or making an application for cross-examination, both of which would provide the applicant with more material to conduct his case.

10 Nevertheless, the purposes of the leave requirement as set out above, in particular the need to ensure that public authorities are not needlessly bogged down by constant challenge, must also be borne in mind. It is thus suggested that the potential arguability test sets an unacceptably low bar and is increasingly ill-suited to act as an effective filter against hopeless, frivolous and vexatious claims. The potential arguability test was formulated in an era where leave applications for

judicial review were typically heard ex parte, without the respondent contesting or taking part in the proceedings. When IRC was decided, the procedure under the English Rules of the Supreme Court was that a leave application is initially made ex parte but may be adjourned for the person against whom relief is sought to be represented.8 In IRC, however, the only material before the court came from the applicant because no adjournment had been sought for the respondent tax authority to make representations.9 It may therefore have been practical in the context of IRC for the court to...