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Rules of the Superior Courts

Order: 84

Judicial review and orders affecting personal liberty

The below amendment(s) have been made to this instrument which can be viewed by clicking on the link(s):

No84-S.I. No. 811 Of 2004: Rules Of The Superior Courts (Bail Applications) 2004
No84-S.I. No. 10 Of 2009: Rules Of The Superior Courts (Criminal Justice Acts 2006 And 2007) 2009
No84-S.I. No. 691 Of 2011: Rules Of The Superior Courts (Judicial Review) 2011
No84-S.I. No. 307 Of 2013: Rules Of The Superior Courts (Lugano Convention, Maintenance And Service) 2013
No84-S.I. No. 485 Of 2014: Rules Of The Superior Courts (Court Of Appeal Act 2014) 2014
No84-S.I. No. 345 Of 2015: Rules Of The Superior Courts (Judicial Review) 2015
No84-S.I. No. 470 Of 2015: Rules Of The Superior Courts (Bail Hearings) 2015
No84-S.I. No. 404 Of 2017: Rules Of The Superior Courts (Orders 5 And 84 (Amendment)) 2017


1. (1) Orders of habeas corpus, orders of certiorari, orders of mandamus, orders of prohibition and orders of attachment shall be witnessed in the name of the Chief Justice or, if the office of Chief Justice be vacant, in the name of the President of the High Court, sealed with the seal of the High Court and bearing date of the day of issue.

(2) The expression "order of habeas corpus" does not include an order made pursuant to Article 40 section 4 of the Constitution.

(3) Every order referred to in this rule shall be served personally on the person to whom it is directed, unless the Court otherwise directs.

I. Habeas Corpus.

2. An application for an order of habeas corpus ad subjiciendum shall be by motion ex-parte for a conditional order.

3. Unless the Court shall otherwise direct

      (a) the application for an order of habeas corpus ad subjiciendum shall be on affidavit which shall be entitled shortly in the matter in question and in the matter of the Habeas Corpus Act, 1782,

      (b) No order of habeas corpus ad subjiciendum shall be granted where the validity of any warrant, committal order, conviction or record shall be questioned, unless at the time of moving a copy of such warrant, committal order, conviction or record verified by affidavit be produced to the Court, or the absence thereof accounted for to the satisfaction of the Court.

4. The order of habeas corpus ad subjiciendum shall be served personally on the person to whom it is directed, unless the Court shall otherwise direct. If the order is directed to a jailer or other public official, it shall be served by leaving it with him or his servant or agent at the place of confinement or restraint, or in such manner as the Court may direct.

5. The Court may, on the motion to make absolute notwithstanding cause shown, order either that the body of the person detained be produced before the Court or that such person be released from such detention.

6. Every conditional order of habeas corpus shall be filed in the Central Office and served together with a copy of the grounding affidavit (if any) within ten days from the day the same shall be pronounced, unless further time is allowed by the Court, and in default thereof such conditional order shall stand discharged.

7. Unless the conditional order shall otherwise direct, cause shall be shown within ten days after service thereof.

8. Where cause is shown it shall be by affidavit. The affidavit shall in addition to the facts deposed to, state concisely the grounds relied on as cause. The affidavit shall be filed in the Central Office and notice of filing shall be served on the applicant or his solicitor within the time allowed for showing cause.

9. (1) Where cause has been shown as aforesaid the applicant may apply to the Court by motion on notice to make absolute the conditional order, in whole or in part notwithstanding the cause shown.

(2) Notice of such motion shall be served on the party showing cause or his solicitor within six days after service by him of a notice of filing in pursuance of rule 8 or, where cause is shown by more than one party then within six days of the service of the last of such notices, and if such notice of motion shall not be served on such party he shall be entitled to an order of course allowing the cause shown and directing that his costs of showing cause be taxed and paid by the applicant.

10. Where cause has not been shown in the manner and within the time aforesaid the applicant shall on filing an affidavit of service of the conditional order and a certificate that no cause has been shown, be entitled to obtain a side bar order making the conditional order absolute (unless the conditional order shall have otherwise directed).

11. The return to the order of habeas corpus, where the body is not produced, shall be by affidavit to be made by the party to whom the order is directed and shall contain such full answer to the allegation that the person is detained as the circumstances may require.

12. If an order of habeas corpus is disobeyed by the person to whom it is directed, application may be made to the Court, on an affidavit of service and disobedience, for an attachment for contempt. In vacation an application may be made to the Court for a warrant for the apprehension of the person in contempt to be brought before the Court to be bound over to appear at the next ensuing sittings, to answer for his contempt, or to be committed to prison for want of bail.

13. An application to bring up a prisoner to give evidence in any cause or matter, civil or criminal, before any Court, may be made to the Court on affidavit.

II. Attachment for Contempt.

14. An application for an order of attachment for contempt shall be made by motion ex-parte.

III. Bail.

15. (1) An application for bail by a person in custody shall be by motion on notice to the Chief State Solicitor grounded on the affidavit of the applicant.

(2) Proceedings shall be entitled:


THE HIGH COURT

IN THE MATTER OF A BAIL APPLICATION

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

.V.

AT PRESENT PENDING IN THE ... COURT

AT


or to the appropriate effect.

(3) Where an applicant has no solicitor, the Court may dispense with the necessity for a notice of motion and affidavit, and in lieu thereof shall give all appropriate directions including a direction that the applicant be brought before the Court on a date and at a time to be specified, of which the Chief State Solicitor shall be notified, and for the purpose of giving such directions, the Court may hear the applicant.

(4) References to the Director of Public Prosecutions shall, where appropriate, be deemed to include references to the Attorney General.

IV. Recognizances.

16. Every recognisance acknowledged on the removal of an order, or other proceeding, or for the appearing or answering of any party in the Court, or for good behaviour shall, after the acknowledgement thereof, be transmitted to the Central Office and filed there.

17. No recognisance shall be forfeited or estreated without an order of the Court. Notice of application for any such order shall be served on the parties by whom such recognisance's shall have been given.

V. Judicial review.

18. (1) An application for an order of certiorari, mandamus, prohibition or quo warranto 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 may be made by way of an application for judicial review, and on such an application the Court may grant the declaration or injunction claimed if it considers that, 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, certiorari, or quo warranto,

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

      (c) all the circumstances of the case,

it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.

19. On an application for judicial review any relief mentioned in rule 18 (1) or (2) may be claimed as an alternative or in addition to any other relief so mentioned if it arises out of or relates to or is connected with the same matter and in any event the Court may grant any relief mentioned in rules 18 (1) or (2) which it considers appropriate notwithstanding that it has not been specifically claimed.

20. (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 such leave shall be made by motion ex parte grounded upon—

      (a) a notice in Form No. 13 in Appendix T containing a statement of:

        (i) the name, address and description of the applicant,

        (ii) the relief sought and the grounds upon which it is sought,

        (iii) the name and registered place of business of the applicant's solicitors (if any), and

        (iv) the applicant's address for service within the jurisdiction (if acting in person); and


      (b) an affidavit which verifies the facts relied on.
Such affidavit shall be entitled:

THE HIGH COURT

JUDICIAL REVIEW

BETWEEN

A.B. ... APPLICANT

AND

C.D. ... RESPONDENT


(3) The Court 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 it thinks fit.

(4) The Court shall not grant leave unless it 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 its being quashed any judgement, order, conviction or other proceeding which is subject to appeal and a time is limited for the bringing of the appeal, the Court may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

(6) If the Court grants leave, it may impose such terms as to costs as it thinks fit and may require an undertaking as to damages.

(7) Where leave to apply for judicial review is granted then-

      (a) if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders;

      (b) if any other relief is sought, the Court may at any time grant in the proceedings such interim relief as could be granted in an action begun by plenary summons.

21. (1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the Court considers that there is good reason for extending the period within which the application shall be made.

(2) Where the relief sought is an order of certiorari in respect of any judgement, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgement, order, conviction or proceeding.

(3) The preceding paragraphs are without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.

22. (1) An application for judicial review shall be made by originating notice of motion unless the Court directs that it shall be made by plenary summons.

(2) The notice of motion or summons must be served on all persons directly affected and where it relates to any proceedings in or before a Court and the object of the application is either to compel the Court 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 must 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 Clerk or Registrar on behalf of the Judge.

(3) A notice of motion or summons, as the case may be, must be served within 14 days after the grant of leave, or within such other period as the Court may direct. In default of service within the said time the stay of proceedings referred to in rule 20 (7) shall lapse. In the case of a motion on notice it shall be returnable for the first available motion day after the expiry of 10 days from the date of service thereof, unless the Court otherwise directs.

(4) Any respondent who intends to oppose the application for judicial review by way of motion on notice shall file in the Central Office a statement setting out concisely the grounds for such opposition and, if any facts are relied on therein, an affidavit verifying such facts. Such respondent shall serve a copy of such statement and affidavit (if any) on all parties not later than seven days from the date of service of the notice of motion or such other period as the Court may direct. The statement shall include the name and registered place of business of the respondent's solicitor (if any).

(5) An affidavit giving the names and addresses of, and the places and dates of service on, all persons who have been served with the notice of motion or summons must be filed before the motion or summons is heard and, if any person who ought to be served under this rule has not been served, the affidavit must state that fact and the reason for it; and the affidavit shall be before the Court on the hearing of the motion or summons.

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

23. (1) A copy of the statement in support of an application for leave under rule 20, together with a copy of the verifying affidavit must be served with the notice of motion or summons and, subject to paragraph (2), 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 Court may, on the hearing of the motion or summons, allow the applicant or the respondent to amend his statement, whether by specifying different or additional grounds of relief or opposition or otherwise, on such terms, if any, as it thinks 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.

(3) Where the applicant or respondent intends to apply for leave to amend his statement, or to use further affidavits he shall give notice of his intention and of any proposed amendment to every other party.

24. (1) On an application for judicial review the Court may, subject to paragraph (2), award damages to the applicant if —

      (a) he has included in the statement in support of his application for leave under rule 3 a claim for damages arising from any matter to which the application relates, and

      (b) the Court is satisfied that, if the claim had been made in a civil action against any respondent or respondents begun by the applicant at the time of making his application, he would have been awarded damages.

(2) Order 19, rules 5 and 7, shall apply to a statement relating to a claim for damages as it applies to a pleading.

25. (1) Any interlocutory application may be made to the Court in proceedings on an application for judicial review. In this rule "interlocutory application" includes an application for an order under Order 31, or Order 39, rule 1, or for an order dismissing the proceedings by consent of the parties.

(2) Where the relief sought is or includes an order of mandamus, the practice and procedure provided for in Order 57 shall be applicable so far as the nature of the case will admit.

26. (1) On the hearing of any motion or summons under rule 22, any person who desires to be heard in opposition to the motion or summons, and appears to the Court to be a proper person to be heard, shall be heard, notwithstanding that he 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, committal, conviction, inquisition or record, unless before the hearing of the motion or summons he has lodged in the High Court a copy thereof verified by affidavit or accounts for his failure to do so to the satisfaction of the Court hearing the motion or summons. If necessary, the court may order that the person against whom an order of certiorari is to be directed do make a record of the judgement, conviction or decision complained of.

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

(4) Where the relief sought is an order of certiorari and the Court is satisfied that there are grounds for quashing the decision to which the application relates, the Court 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 Court.

(5) Where the relief sought is a declaration, an injunction or damages and the Court considers that it should not be granted on an application for judicial review but might have been granted if it had been sought in a civil action against any respondent or respondents begun by plenary summons by the applicant at the time of making his application, the Court may, instead of refusing the application, order the proceedings to continue as if they had been begun by plenary summons.

(6) Where the relief sought is or includes an order of mandamus, the proceedings shall not abate by reason of the death, resignation or removal from office of the respondent but they may, by order of the Court, be continued and carried on in his name or in the name of the successor in office or right of that person.

(7) At any stage in proceedings in prohibition, or in the nature of quo warranto, the Court on the application of any party or of its own motion may direct a plenary hearing with such directions as to pleadings, discovery, or otherwise as may be appropriate, and thereupon all further proceedings shall be conducted as in an action originated by plenary summons and the Court may give such judgement and make such order as if the trial were the hearing of an application to make absolute a conditional order to show cause.

27. The forms in Appendix T shall be used in all proceedings under this Order.