The term “Application for Leave for Judicial Review” is a term you have heard on the news recently. If it rings a bell it’s probably because it is the central issue of the highly anticipated case of Stake Bank Enterprise Limited (“Claimant/Applicant”) v The Attorney General of Belize, The National Environmental Appraisal Committee (NEAC), Department of the Environment (DOE) & Portico Enterprise Limited (collectively “the Defendants/Respondents”) Claim No. 269 of 2021.
This case involves two cruise ports in Belize – Port Coral on Stake Bank Island, and Port of Magical Belize. Presently, construction of Port Coral has already begun while Port of Magical Belize has recently received environmental clearance. Stake Bank Enterprise Limited intends to challenge the decision of NEAC and the Department of the Environment of granting Environmental Clearance to Portico Enterprise Limited. To understand the development of this case it would be best to explain what judicial review is. Judicial Review is the procedure by which a court can review an administrative action by a public body and secure a declaration, order or award.
In this instance the administrative actions were the granting of environmental clearance to Portico Enterprise Limited by the NEAC and entering into an Environmental Compliance Plan between the Department of the Environment and Portico Enterprise Limited. The public body being challenged is the NEAC and the Department of the Environment. The remedy being sought by the Claimant is an order of certiorari to quash both the decision of granting environmental clearance by the NEAC and the Environmental Compliance Plan entered into between Portico Enterprise Limited and Department of the Environment. Also, for an Order compelling the Defendants
To establish a claim for Judicial Review the person intending to make the application must have the appropriate “locus standi”. Locus Standi is a Latin phrase describing a person who has sufficient interest in a claim. Rule 56.2(2) of the Civil Procedure Rules of Belize lists out who are people can hold a sufficient interest.
“(2) This includes –
- any person who has been adversely affected by the decision which is the subject of the application;
- any body or group of acting at the request of a person or persons who would be entitled to apply under paragraph (a);
- any body or group that represents the views of its members who may have been adversely affected by the decision which is the subject of the application;
- any statutory body where the subject matters falls within its statutory ambit;
- any body or group that can show the subject matters falls within its statutory ambit;
- any person or body who has a right to be heard under the terms of any relevant enactment or the Constitution.”
After establishing Locus Standi the Application for leave and the grounds thereof are to be examined.
The Court in deciding whether or not the application for leave will be granted follow the case of Sharma v Brown-Antonie [2006] UKPC 57. This case is important because it established a test that determines whether or not an application for leave is granted. The test established states that “the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy.”
The test states that for a Court to grant Leave for Judicial Review the grounds on which the applicant is claiming must have a real prospect of success. This essentially means that the grounds on which the application are made for are not trivial and if explored would have a true chance of succeeding its court. The Claimant’s grounds for the application are as follows:
- Legitimate Expectation;
- Appearance of Bias;
- Bad Faith;
- Wednesbury Unreasonableness/Abuse of Power.
After the assessment of the grounds was concluded it was held by Shoman J that all grounds applied by the Claimant attained the sufficient threshold to be considered a ground with a real prospect of success. An applicant can make their application by using any ground per se, however each case will be determined on the circumstances surrounding each individual case. As for Stake Bank Enterprise Limited, the grounds it has advanced its claim on were accepted by the court.
CONCLUSION
So what is happening with this case? In its shortest answer, there are two companies fighting to be the premier docking facility for cruise ship tourism in Belize. Stake Bank is challenging the Government’s decision to allow another company to construct a second cruise docking facility. Stake Bank needs the process of judicial review to have the Supreme Court order the Government of Belize and the relevant agencies to reverse their decision and reverse the granting of environmental clearance.