Peerless Limited v Gambling Regulatory Authority and others

At the leave stage of judicial review, the duty of candour applies throughout the proceedings, but the response to non-disclosure must secure justice and remain proportionate. Because refusal of leave finally terminates the claim, the court should assess its arguability and consider less drastic sanctions, including costs orders. Serious misconduct may influence the discretion without excluding a sufficiently strongly arguable claim from a merits hearing. Procedural fairness may require reasons for an important administrative decision, especially where it closes a significant business and statutory objectives include transparency. A statutory power of immediate suspension may be exercised without a prior warning where the legislation provides for it. Compliance with a licence condition is not made contingent on an authority’s failure to establish an electronic monitoring system.

The appellant, a Mauritius bookmaker, challenged the Gambling Regulatory Authority’s suspension of its fixed-odds betting licence and its subsequent failure to renew it. The Supreme Court of Mauritius refused leave to apply for judicial review on grounds of material non-disclosure, incomplete exhibition of licence conditions and persistent denial of knowledge of those conditions. It did so without considering the legal merits of the proposed challenge.

On appeal by leave, the Privy Council considered whether the appellant’s lack of candour justified terminating the proceedings at the leave stage, and whether the challenges concerning the absence of reasons and the proportionality of non-renewal were sufficiently arguable.

Appeal allowed. The Board set aside the Supreme Court’s order and granted leave to apply for judicial review on the absence-of-reasons ground and the proportionality of the decision not to renew the licence. The costs order in the Supreme Court was left undisturbed.

1. Duty of candour. The duty applies throughout judicial review proceedings, with particular force in ex parte applications. Applying Brink’s Mat Ltd v Elcombe [1988] 1 WLR 1350, the Board held that the rule protects the court and deters improper advantage, but must not itself become an instrument of injustice.
2. Leave and proportionality. Following the approach in R v Bromsgrove District Court, Ex p Kennedy [1992] COD 129 and applying R v Wirral Metropolitan Borough Council, Ex p Bell (1994) 27 HLR 234, the court must consider both the non-disclosure and the prospects of success. Refusal of leave is final and terminating, so the power to end proceedings without a merits hearing must be exercised cautiously and proportionately. Less drastic measures, including costs orders, may mark disapproval. Despite serious misconduct, the appellant had a sufficiently strongly arguable case.
3. Other grounds. The GRA was entitled to proceed under section 99(4) without a prior warning. Compliance with condition 7 was not contingent on the establishment of the Central Electronic Monitoring System or suitable reporting software. The omission of an express warning from the 2010 licence added nothing to the statutory position. No sufficient basis was shown for legitimate expectation, acquiescence or inconsistent treatment.
4. Reasons. Procedural fairness may require reasons where the decision is important to the affected person. The Board applied R v Civil Service Appeal Board, Ex p Cunningham [1992] ICR 816 and R v Secretary of State for the Home Department, Ex p Doody [1994] AC 531. Given the closure of a significant business and the statutory objective of transparency, the absence of reasons was sufficiently arguable to warrant leave.
5. Costs. The Board retained the Supreme Court’s costs order because the appellant’s lack of candour justified costs consequences. It invited written submissions before determining the costs of the appeal.

1. Privy Council. In [2015] UKPC 29, the Board allowed the appeal, set aside the refusal of leave and granted leave on the absence-of-reasons and proportionality grounds.
2. Supreme Court of Mauritius. On 9 September 2013, the court refused leave because of the appellant’s lack of candour and failure to disclose complete licence conditions, without considering the merits.