Challenging the State: judicial review of decisions by ministries, commissions, licensing and disciplinary bodies, and constitutional claims where a fundamental right has been breached — with the three-month clock that governs the first, and the different rules that govern the second.
Which of these is you?
- A licence or permit refused, revoked or never decided An appeal if the law gives one; otherwise judicial review, applied for promptly and within three months.
- Passed over, disciplined or dismissed in the public service A commission's decision reviewed, or an appeal to the Public Service Appeal Board.
- A fundamental right breached A constitutional motion to the High Court, with no leave needed.
- Wronged by the police or another arm of the State Judicial review, a constitutional motion or an ordinary claim, depending on what happened.
- A professional or disciplinary body's decision An appeal where the law gives one; otherwise, judicial review.
- A decision made weeks ago Whether it is still prompt, and how much of the three months is left.
Ask about this
Have a decision to challenge?
Name the body, say what it decided, and — above all — say when you learned of it.
What this covers
- Judicial review of a decision, an action or a failure to act by a public body
- Leave to apply the first hurdle, and the first place a weak claim fails
- Constitutional motions for breach of the fundamental rights the Constitution protects
- Public service and commission decisions appointments, promotions, discipline and dismissal
- Licensing and regulatory decisions permits refused, revoked or left undecided
- Disciplinary bodies professional and statutory tribunals
- Police and detention claims unlawful arrest, detention and treatment
- Pre-action correspondence the pre-action letter sent before a claim is filed
- Remedies quashing the decision, compelling action, declarations, and damages where available
- Appeals to the Court of Appeal and the Privy Council
Handled elsewhere
How it works
Everything begins with a consultation. You set out what was decided, by whom, when you learned of it, and what it has cost you. That conversation is for working out whether the decision can be attacked, by which route, and how much of the three months is left.
- The decision. The record obtained, the grounds identified, the route chosen, and the clock checked against the day the grounds arose.
- Pre-action. The pre-action letter, sent to the body with a short deadline for its answer — which sometimes ends the matter and always shapes it, but never stops the clock.
- The claim. Leave applied for where needed, the hearing, the remedy — and an appeal where the outcome warrants it.
In detail
Two routes, not interchangeable
A public body has decided something that affects you. It has refused a licence, passed you over, disciplined you, or simply taken too long, and you believe it was wrong. The law gives you two routes, and they are not interchangeable.
Judicial review
Judicial review asks the High Court to examine how the decision was made: whether the body had the power, whether it followed a fair process, whether the result was one no reasonable body could have reached. It does not ask whether the decision was right. You need the court's leave to bring it, you need a sufficient interest in the matter, and you need to move quickly: the application must be made promptly and in any event within three months of the grounds arising, or the court can refuse to hear it. Where the law gives you an appeal instead, such as to the Public Service Appeal Board against a disciplinary decision, or to a tribunal, a Minister or a court against a licensing or professional decision, that appeal is the route, and judicial review is available only in exceptional circumstances. Before anything is filed, the courts expect a letter to the body setting out the complaint and giving it the chance to answer.
Constitutional motions
A constitutional motion is different. Where a fundamental right protected by the Constitution has been, is being, or is likely to be breached, you apply to the High Court for redress. No leave is needed and the court's powers are wide. But the courts are alert to constitutional motions brought because a judicial review is out of time, and can refuse them for that reason. The choice of route is made carefully, and early.
Who is challenged, and the Ombudsman
The bodies most often challenged are the ones with the most power over people's livelihoods: the service commissions that hire, promote and discipline public officers; the authorities that grant and refuse licences and permits; the disciplinary tribunals of the professions; and the police. The Ombudsman can investigate maladministration too, and is sometimes the right first step, though it will not take up a matter that could go to court or to an appeal unless it is satisfied that it would not be reasonable to expect you to take that route. But appointments, removals, pay, discipline and other personnel matters in the public service are outside the Ombudsman's remit, and a complaint to the Ombudsman does not stop the three-month clock.
What the court can do
The court can quash a decision and send it back to be made again, order a body to act where it has refused to, declare what the law is, and award damages: in a constitutional claim, or in a judicial review where you claim them in the application and would have been entitled to them in an ordinary claim. What it will not do is make the decision itself. A quashed refusal is a decision to be taken again, properly, not a licence granted.
Appeals
Appeals lie to the Court of Appeal and from there to the Privy Council. What is done here is the decision read, the route chosen, the letter sent and the claim filed, in time.
Questions
How long do I have to apply for judicial review in Trinidad and Tobago?
Promptly, and in any event within three months from when the grounds first arose. The court can extend time for good reason, but it weighs the delay against hardship or prejudice to others and harm to good administration, and extensions are not given for the asking. If you are reading this about a decision made two months ago, the time to act is now.
Can I sue the government?
It depends on what for. A decision you say was made unlawfully is challenged by judicial review. A breach of your constitutional rights is redressed by constitutional motion. A wrong done to you by the State, such as negligence or an unlawful arrest or detention by the police, is usually an ordinary claim against the Attorney General under the State Liability and Proceedings Act. A public hospital's Regional Health Authority, and many other statutory bodies, are sued in their own name. The first job is working out which you have.
What is the difference between judicial review and a constitutional motion?
Judicial review examines the process by which a public body decided something, needs the court's leave, and must be brought promptly and within three months. A constitutional motion asserts that a fundamental right has been breached, needs no leave, and gives the court wide powers, including damages. They are not alternatives to be tried in turn: choosing the wrong one, or using the second to rescue a late version of the first, can lose the claim.
Will the court reverse the decision?
Usually not in the way people mean. Judicial review quashes a bad decision and sends it back to be made properly. It does not substitute the court's own decision for the body's. A refusal set aside is a refusal to be reconsidered, which is often enough.
I was passed over for promotion in the public service. Can I challenge it?
Often, yes. Decisions of the service commissions can be reviewed for illegality, unfairness in the process, or irrationality in the result. The application must be made promptly, and within three months of the decision, unless the court extends time. A disciplinary decision is different: it is usually appealed first to the Public Service Appeal Board. Either way, the record of how the decision was made is what the case turns on.
What is a pre-action letter, and do I need one?
Yes. The courts expect a letter to the body before a claim for judicial review is filed, setting out the complaint and giving it the chance to respond. Skipping it can count against you on costs, and the answer tells you a great deal about the case. But the letter does not stop the three-month clock: if the answer has not come in time, the claim is filed anyway.
