Coomaravel Pyaneandee v Paul Lam Shang Leen and 6 others (Mauritius)

For judicial review of a commission of inquiry report, the court must look beyond labels such as findings or observations. Review is available where a fair-minded, detached and objective reader would see the passages, read as a whole, as part of an adverse decision or as damaging to an individual’s reputation.

Procedural fairness is flexible, but the more final and strongly expressed the report’s conclusions, the more the inquiry must do to give the affected person the gist of the case and a meaningful opportunity to respond. A respondent to judicial review owes a continuing duty of candour. Primary documents should be produced where summaries may distort or where they can resolve a material factual conflict. A commission need not conduct a mini-trial or obtain material it does not possess.

A public inquiry established under the Commissions of Inquiry Act 1944 questioned the appellant, a barrister, about visits to prisoners involved in drug trafficking. Its published report made serious allegations about his conduct and recommended an in-depth investigation.

The Supreme Court of Mauritius dismissed his judicial review application, holding that the impugned passages were observations rather than reviewable findings, and alternatively that the procedure had been fair: 2021 SCJ 167. The appeal concerned the passages’ amenability to judicial review, the failure to produce the hearing transcript, compliance with natural justice, and reasonable adjustments for the appellant’s hearing and sight impairments.

The Board allowed the appeal. It declared that the impugned passages breached fairness and natural justice, ordered that they be disregarded, and directed that a link to the judgment be inserted on page 232 of the Report as published online.

1. Amenability to judicial review. The strict distinction applied in De Robillard v Yeung Sik Yuen 1992 MR 218 between reviewable findings and non-reviewable observations was too narrow. The broader approach in Jadoo-Jaunbocus v Lam Shang Leen 2021 SCJ 84 was correct. The question is whether a fair-minded, detached and objective reader, reading the passages as a whole, would regard them as part of an adverse decision or as adversely affecting reputation.
2. Candour and disclosure. Respondents in judicial review owe a continuing duty to provide full and accurate explanations of material facts. Disclosure is not automatic, but primary documents should be produced where a public authority relies on them, where summaries may distort, or where a primary record can resolve a material factual conflict. The transcript should therefore have been produced.
3. Fairness in an investigative inquiry. The procedure is primarily for the commission to determine, having regard to fairness, effectiveness, speed, economy and practicality. The applicable standard depends on the facts, the nature of the inquiry, its governing rules and the subject matter. The greater the finality and strength of the conclusions, the more the commission must do to ensure fairness. Fairness generally requires notice of the gist of the case and a worthwhile opportunity to respond, as explained in R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531.
4. The Commission did not need to conduct a mini-trial or obtain the MCIT file if it lacked access to it. However, if it possessed or could access that file and intended to rely on it, relevant material should have been provided. The absence of advance particulars, the prison visitors’ book, relevant statements and supporting documents, together with the one-sided presentation of serious allegations, denied the appellant a fair opportunity to make worthwhile representations.
5. Adjustments. Reasonable accommodations for an impaired witness lie primarily within the commission’s discretion. Failure to make an adjustment alone does not render the process unlawful, but it forms part of the overall fairness and natural justice assessment.

1. Privy Council: Appeal allowed. The impugned passages were declared to breach fairness and natural justice and were ordered to be disregarded.
2. Supreme Court of Mauritius: Judicial review application dismissed on 28 May 2021. The passages were treated as non-reviewable observations, with the fairness issues considered alternatively: 2021 SCJ 167.