Privy Council implies defendants in judicial…

In this blog, Charles Bishop reviews the recent Privy Council judgment in Jaiwantie Ramdass v Minister of Finance (Trinidad and Tobago) [2025] UKPC 4, a rare decision from the members of the highest court considering the legal test applicable for permission to apply for judicial review.

Introduction

The Judicial Committee of the Privy Council has given a valuable restatement of the principles governing grants of permission in judicial review in its latest judgment, Jaiwantie Ramdass v Minister of Finance (Trinidad and Tobago) [2025] UKPC 4.

The decision

The case concerned a claim for judicial review by the Auditor General of Trinidad and Tobago against the decision to appoint an investigation into her approach to auditing the country's 2023 public accounts. The Court of Appeal of the Republic of Trinidad and Tobago granted leave to bring the proceedings. The Board upheld that decision, with Lady Simler providing its written reasons for doing so. In her decision, Lady Simler gave a strong indication that the defendant in the matter ought to have conceded the grant of permission more readily rather than appealing to the highest court.

In England and Wales, it is not possible to appeal against grants of permission for judicial review (see CPR r.54.13), meaning this scenario would never arise here. The Supreme Court can consider a refusal of permission only in those rare cases where the Court of Appeal has granted permission to appeal against the refusal of a grant of permission to bring the claim, but then proceeded to refuse to grant that permission to bring the claim: see generally R v Hammersmith and Fulham LBC ex p Burkett [2002] 1 WLR 1593. This means we usually have to mine Privy Council decisions to acquire the latest thinking from the justices of our top court on this stage in judicial review proceedings. Privy Council decisions are not strictly binding but should normally be regarded as being of great weight and persuasive value, which the courts can normally be expected to follow: Willers v Joyce (No 2) [2018] AC 843.

The following key principles emerge from Lady Simler’s decision:

In deciding whether to grant permission, the court is concerned only to examine whether an applicant has an arguable ground for judicial review with a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy (para 29, citing Sharma v Brown-Antoine [2007] 1 WLR 780, para 14 principle (4)).
This is a low threshold. The permission stage is designed to protect public bodies against weak and vexatious claims. It is not designed for lengthy inter partes hearings but to enable a judge to decide whether a case is arguable on a relatively quick consideration of the material available: see R v Inland Revenue Comrs, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at 644A, per Lord Diplock. Nor is it intended to afford an opportunity to a public body to resist full consideration of matters that are likely to be of importance both to the public and the executive itself (para 30, and see also para 59).
Although wider questions of the public interest may have some bearing on whether leave should be granted, “if a court were confident at the leave stage that the legal position was entirely clear and to the effect that the claim could not succeed, it would usually be appropriate for the court to dispose of the matter at that stage” (para 31, citing Attorney General v Ayers-Caesar [2019] UKPC 44 at para 2).
Where the issues in a case are fact-sensitive, then leave to proceed to a full hearing should be granted unless the legal position is so clear that the allegations of fact, taken at their highest, do not support an arguable legal case (para 53).
The public body seeking to resist the grant of permission needs to demonstrate what is a “clear knockout blow”. This ought generally to be possible to do in a summary way without the need for extensive investigation and argument on the knockout point relied on (para 59).

In this case, the Board noted it was “unfortunate” that the purported “knockout blow” had led to extensive argument in the domestic courts and in the Privy Council, suggesting it might have been preferable for the case to go forward to a full judicial review hearing. This was particularly so as wider questions of the public interest may have had some bearing on whether permission should be granted and the “serious allegations of unlawful conduct” made by the claimant could have been fully investigated, considered and determined on their merits.

For claimants, the judgment provides a helpful reminder of the low threshold to be met at the permission stage. For defendants, the decision cautions against unreasonably resisting a grant of permission – particularly where matters of considerable public interest are involved.

This article was written by Charles Bishop.