Maharaj v National Energy Corporation of Trinidad and Tobago

When deciding whether a delayed judicial review claim was brought promptly, or whether there is good reason to extend time, the court must consider all relevant circumstances. Depending on the case, prejudice to others and detriment to good administration may be key considerations. The broader extension inquiry may also include the merits, importance of the issues, public interest and the nature of the challenged decision.

Prejudice and detriment are not confined to a residual discretion exercised only after time has been extended. Their absence does not, however, guarantee permission. Leave may still be refused where other circumstances show no good reason to extend time.

The appellant sought judicial review of the respondent public body's refusal to disclose information requested under freedom of information legislation. Leave was granted ex parte, but the judge later set it aside because the application had not been made promptly and the delay lacked a satisfactory explanation. By then, the respondent had accepted that the appellant would succeed on the substantive issue.

The Court of Appeal dismissed the appeal by a majority, Jamadar JA dissenting. The majority treated prejudice to others and detriment to good administration as irrelevant to the initial questions of promptitude and extension of time.

The central issue before the Board was whether, under section 11 of the Judicial Review Act 2000 and rule 56.5 of the Civil Proceedings Rules 1998, prejudice and detriment may bear on promptitude and good reason to extend time.

1. Appeal allowed with costs. The statutory and procedural provisions had to be read together. Promptness, undue delay and unreasonable delay expressed a single concept. Rule 56.5(3) expressly required the judge, when considering refusal of leave or relief because of delay, to consider substantial hardship, prejudice and detriment to good administration. Section 11(3) also permitted regard to other relevant matters. Prejudice and detriment were therefore not confined to a residual discretion under section 11(2) (paras 33–35).

2. As a matter of principle, prejudice and detriment may be relevant both to whether an application was prompt and to whether there is good reason to extend time. Their presence or absence will often give concrete meaning to the requirement of promptness and may be the predominant consideration (paras 36–37).

3. The test under section 11(1) was good reason for extending time, not merely good reason for the delay. The court must consider all relevant circumstances. These may include the importance of the issues, prospects of success, prejudice, detriment to good administration and the public interest. Relevant considerations must be taken into account (para 38).

4. The absence of prejudice or detriment does not compel an extension. Leave may properly be refused despite their absence, for example where a long and wholly unexplained delay accompanies a weak and inconsequential claim (para 47).

5. The first-instance judge erred by relying entirely on the absence of a satisfactory explanation. He failed to consider whether there was good reason to extend time, the likelihood of prejudice or detriment, the merits and the public interest. The Court of Appeal majority likewise erred by insulating prejudice and detriment from the promptitude and extension questions (paras 45–46).

6. Although remittal would ordinarily have followed, it was inappropriate. The substantive claim had effectively been conceded, the respondent accepted that there was no evidence of likely prejudice or hardship, and it had since disclosed the information. The Board described the continued non-disclosure as irresponsible conduct by a public body, but the proceedings remained live because they raised an important point of principle. The appeal was allowed with costs (paras 48–50).

1. Privy Council: Allowed the appeal with costs. The Board held that the courts below had applied an erroneous approach to delay and extension of time.
2. Court of Appeal of Trinidad and Tobago: By a majority, dismissed the appeal from the order setting aside leave. Jamadar JA dissented.
3. High Court of Trinidad and Tobago: Boodoosingh J set aside the earlier ex parte grant of leave because the judicial review application had been unreasonably delayed.