C-Care (Mauritius) Ltd v Employment Relations Tribunal and others (Mauritius)

The requirement that a judicial review claim be brought promptly is distinct from any long-stop period of three months. A claim brought within three months may still be out of time. Promptness is an evaluative question for the first-instance court, assessed in the particular context and circumstances. The claimant bears the burden of showing promptness when the issue is raised. Relevant considerations may include the speed required for the underlying proceedings, the claimant’s knowledge of the decision, the time reasonably needed to obtain advice, and likely prejudice or detriment to others. Absence of prejudice does not remove the promptness requirement. Appellate intervention is justified only for legal misdirection or a conclusion that was not rationally open to the first-instance court.

The appellant employer sought leave from the Supreme Court of Mauritius to apply for judicial review of an award by the Employment Relations Tribunal concerning the redundancy and severance allowance of five employees. The award was issued on 26 October 2018, and the appellant lodged its application six weeks later. The Supreme Court refused leave on 22 October 2019 solely because the application had not been made promptly. It did not determine whether the proposed claim disclosed an arguable case.

The appeal concerned whether the Supreme Court had been entitled to reach that conclusion, having regard to the applicable three-month wording and the absence of any demonstrated prejudice.

1. Appeal dismissed. Lord Sales delivered the judgment, with whom Lord Briggs, Lord Hamblen, Lord Leggatt and Lord Richards agreed. The Supreme Court of Mauritius was entitled to refuse leave because the judicial review application had not been brought promptly. Its conclusion involved no misdirection and was rationally open to it.
2. The applicable rule imposes a primary requirement of promptness, alongside the outer period of three months. The three-month period is not a fixed entitlement or safe period. Whether an application is prompt requires an evaluative judgment based on the particular facts and context. The Board followed Mauritius Shipping Corporation Ltd v Employment Relations Tribunal [2019] UKPC 42.
3. The appellate threshold is high. An appellate court should intervene only if the first-instance court misdirected itself or reached a conclusion that could not rationally be reached in the circumstances. Regard may be had to the local court’s superior knowledge of local legislation, litigation practice and reasonable expectations.
4. When promptness is challenged, the claimant must explain what it did and why its conduct was sufficiently prompt. Evidence is not required in every case, but the burden of demonstrating promptness rests on the claimant. Here, the appellant knew of the award when it was delivered, had ample opportunity to obtain advice, and offered no explanation for waiting six weeks.
5. The expedited statutory timetable under the Employment Rights Act 2008 was relevant context because it demonstrated a public interest in resolving employment disputes speedily. Likely prejudice or financial hardship to affected employees may also be highly relevant, as recognised in Maharaj v National Energy Corporation of Trinidad and Tobago [2019] UKPC 5, but promptness cannot be reduced to a prejudice-based inquiry. The appeal was dismissed.

• Privy Council: Appeal from the decision of the Supreme Court of Mauritius dismissed: [2022] UKPC 58.
• Supreme Court of Mauritius: On 22 October 2019, leave to apply for judicial review was refused solely because the application had not been made promptly.