Mauritius Shipping Corporation Ltd v Employment Relations Tribunal and others (Mauritius)

A judicial review application must be made promptly. The three-month period is a longstop, not a period available as of right, so an application made within three months may still be too late. Promptness is assessed in context, including the nature of the dispute, statutory urgency, likely hardship or prejudice, and the explanation for delay. In redundancy litigation, the short timetable imposed on the specialist tribunal by Part VIIIA of the Employment Rights Act 2008 underlines the need for expedition. Delay in the court hearing the application does not cure delay in launching it. Where the challenged decision gives reasons and the proposed review concerns legality rather than merits, inability to obtain the complete tribunal record may not justify postponing the application.

The appellant made a number of employees redundant. The employees registered complaints under section 39B of the Employment Rights Act 2008, and the matter was referred to the Employment Relations Tribunal, which ordered payment of severance allowance on 9 May 2016.

The appellant sought leave to apply for judicial review. The Supreme Court of Mauritius refused leave in a judgment dated 21 August 2017, holding that the application had not been made sufficiently promptly and that the proposed grounds were not arguable. On appeal as of right, the Privy Council considered the promptness issue first. It held that this disposed of the appeal, making it unnecessary to determine arguability.

1. Appeal dismissed. The Board held that the Supreme Court was entitled to refuse leave because the proposed judicial review application had not been launched promptly. The Board would interfere only if the Supreme Court had reached a decision that was not open to it.
2. Promptness requirement. A judicial review application must be made promptly and, in any event, within three months from the date when the grounds first arose. The three-month limit is a longstop. It does not give an applicant three months as of right. An application within that period may still fail for lack of promptness.
3. Relevant circumstances. Promptness depends on the circumstances of the case. Relevant considerations included the termination of employment, the likely financial hardship caused by delay, the prejudice to the affected employees, the short statutory timetable for the Tribunal, and the absence of a satisfactory explanation for delay. The statutory requirement that redundancy complaints be heard and determined within 30 days, subject to a further 30 days only in exceptional circumstances, underlined the importance of expedition.
4. Tribunal record. The appellant’s difficulty in obtaining the complete record did not justify delaying the application. The Tribunal’s award contained reasons. Since the proposed proceedings concerned the legality of the Tribunal’s determination rather than an appeal on the merits, the appellant had sufficient material to identify potential grounds and commence judicial review. The Board also noted that the appellant had not filed an affidavit explaining the delay or exhibited the relevant correspondence.
5. Irrelevant subsequent delay. The time taken by the Supreme Court to hear and determine the leave application could not assist the appellant. The obligation to act promptly concerned the launching of the application. The Board therefore found no basis to impugn the refusal of leave under Order 53 Rule 4. It did not rule on whether the proposed judicial review grounds were arguable.

• Privy Council — Appeal dismissed. The Board upheld the refusal of leave on the ground of lack of promptness and did not determine arguability.
• Supreme Court of Mauritius — Judgment dated 21 August 2017 refused leave to apply for judicial review because the application was insufficiently prompt and the proposed grounds were not arguable.
• Employment Relations Tribunal — On 9 May 2016, found the redundancies unjustified and ordered payment of severance allowance.