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Petitions of Doleance2 and a Significant Body of Case Law

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Petitions of Doleance2 and a Significant Body of Case Law Judicial Review The Petition of Doleance The procedure on the Isle of Man for challenging or seeking judicial review of an administrative action is by way of a Petition of Doleance. “A petition of doleance is the process by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of inferior courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who are charged with the performance of public acts and duties.” Per Deemster Kerruish QC1 The Island has well-established jurisprudence in respect of petitions of doleance2 and a significant body of case law. In Re Kerruish3 in 1971 Bingham, JA described the purpose of a Petition of Doleance as— “…to provide within a comparatively compact community a simple and speedy means for the ordinary citizen to obtain redress for injustices which in England would be remedied by orders of habeas corpus, certiorari and the like. The essence of the petition of doleance is that it should be simple and, therefore, unencumbered by legal formality and also speedy so that the cases can be tried quickly.” The often judicially quoted definition of the petition of doleance is to be found in the case of Corkish v Boyd 4 in 1904 where Sir James Gell CR said— “This petition is one of doleance, seeking the relief which in England is obtained by the prerogative writ of certiorari. There is no such writ here, neither have we any of the English prerogative writs such as habeas corpus, mandamus etc. Substantially, however, the relief obtainable by means of these writs is obtained here by a different mode of procedure, namely the petition of doleance, formerly heard in the Court of the Staff of Government Division but, since the passing of the Judicature Act 1883 in (the Chancery Division) of the High Court … The procedure here is entirely different from that in England. A petitioner in this Island must prove his case as in any other matter of 1 In Re Malew Parish Commrs 2001‐03 MLR 129 at paragraph 105 2 Per Deemster Doyle MTM (Isle of Man) Limited and The Financial Supervision Commission (7th October 2004)paragraph 24. 3 1961–71 MLR 374 at 390. 4 (1904) C.P. 17; 1522–1920 MLR 389. mannbenham.com petition.” The requirement for the petitioner to prove his case was reiterated In the Matter of the Petition of the Attorney General (on the relation of Bride Parish Commissioners) 2001-03 MLR 436 where the court confirmed the established principle that a petitioner must prove his case “for a quashing order which is not a remedy of right but at all times discretionary” (at page 454)5. The review process The petition of doleance is a remedy of last resort and “aggrieved parties need to exhaust all internal remedies before bringing a petition of doleance before the court.”6 As judicial review is a supervisory and not an appellate jurisdiction the court can only interfere if the defendant has failed to act properly within his discretion.7 “The doleance process is concerned with reviewing not the merits of the decision in respect of which the petition of doleance is filed but the decision-making process itself. It is not for the judiciary to substitute their decisions for the decisions of the body constituted by law to decide the issues in question. The concern of the court is with whether the decision-making entity exceeded its powers, committed an error of law, committed a breach of natural justice, reached a decision which no reasonable entity could have reached or abused its powers.” Per Deemster Doyle In MTM (Isle of Man) Limited and The Financial Supervision Commission. Locus Standi Private individuals, or companies that have suffered, or are likely to suffer a particular damage as the result of an alleged wrong may present petitions of Doleance, whether or not the wrong is also a public wrong8. In cases where the wrong is a purely public wrong for which the Petitioner cannot show any damage to his own interests then the proceedings need to be brought in the name of the Attorney General or with his consent and in his name. The court has discretion to allow a petition by a private individual to redress a purely public wrong in the absence of the consent and objection of the Attorney General. 5 see MTM (Isle of Man) Limited and The Financial Supervision Commission (7th October 2004) paragraph 29. 6 Per Deemster Doyle MTM (Isle of Man) Limited and The Financial Supervision Commission (7th October 2004) paragraph 56 7 His Honour Deemster Storey in the Petition of Bride Parish Commissioners Judgment date 9th January 2003 at paragraph 11. 8 Glidewell J.A. Re Nicholson (IOM) Ltd [1978-80] MLR 327 at page 435 mannbenham.com The Vitiating Factors In In re Kinrade9, Acting Deemster Moran said— “This procedure, like that in Judicial Review in the United Kingdom, is … available as a means for an aggrieved citizen to have the court review a decision making process and if appropriate to have the decision set aside if any of the well-recognised vitiating factors can be seen to have operated. These of course include error of law or want of jurisdiction, irrationality or Wednesbury unreasonableness in the making of the decision, breach of the rules of natural justice which are applicable to the relevant decision making process (including bias), reliance on irrelevant material or considerations etc. It is not a means whereby the Court is willing to substitute its own decisions for those of the impugned decision maker and it is not suited or appropriate or intended for the wholesale resolution of disputed issues of fact.” Petitions of Doleance may be brought in respect of – • Illegality – The decision-maker must understand correctly the law that regulates his decision- making power and give effect to it. The illegality heading would cover an error of law where the decision maker purports to exercise a power which in law it does not possess10. • Irrationality (Wednesbury unreasonableness) – A decision that no reasonable decision maker could have arrived at. That applies to a decision that no sensible person could ever dream of or a decision that is so outrageous in its defiance of logic or of accepted standards that no sensible person who had applied his mind to the question to be decided could have reasonably arrived at it. The decision maker must take into account relevant matters and disregard irrelevant matters. • Procedural Impropriety – The decision maker must act in accordance with basic requirements of natural justice and fairness. The applicant must know what case he has to meet and must be given a fair hearing. 9 CP 2003/138 judgment 14th May 2004 at paragraph 4 10 Per Deemster Doyle MTM (Isle of Man) Limited and The Financial Supervision Commission (7th October 2004) paragraph 36 mannbenham.com The available remedies The remedies that can be applied for by way of petition of doleance are orders similar to the old English orders of certiorari (a quashing order), mandamus (a mandatory order) and habeas corpus. Section 44 of the High Court Act 1991 provides that the High Court may make a declaration or grant an injunction where a petition of doleance seeking that relief has been presented to it. On a petition of doleance the High Court may award damages to the petitioner if certain conditions are satisfied. If, the High Court quashes the decision to which the application relates, it may remit the matter to the court, tribunal or authority concerned, with a direction to reconsider it and reach a decision in accordance with the findings of the High Court.11 Examples • The discretion conferred on the Attorney General by section 24 of the Criminal Justice Act 1990 in respect of his powers of investigation in cases of suspected serious fraud or corruption is subject to judicial review.12 The Attorney General was under a duty to exercise his powers under the section according to Wednesbury principles, i.e. to act in good faith, to take account of all relevant considerations and no irrelevant ones, and to act fairly and reasonably. • Failure to disclose the identity of the office holder who authorized the criminal prosecution of the Attorney General was a breach the principle of open justice and was Wednesbury unreasonable13. Procedure A Petition of Doleance is brought by way of a claim form under a modified chancery procedure called the doleance procedure. The claim must be filed promptly with the court and in any event not later than 3 months after the grounds to make the claim first arose14. The doleance procedure must be used for doleance claims where the claimant is seeking an order directing an authority to take, or to not take, any decision or action, or for an order quashing the decision of an authority. The procedure may also be used in a doleance claim where the claimant is seeking a declaration or an injunction15. 11 HAFNER, appeal of / 31 August 2007 / STAFF OF GOVERNMENT (APPEAL DIVISION) para 64 12 In re Frederiksen 1996-98 MLR 286 13 Steven Mark Harding v An office holder who purported to authorize the prosecution of the Claimant and David Turner QC, Acting High Bailiff 19th June 2013. 14 Rule 14.23 of chapter 2 part 14 of the Rules of the High Court of Justice 2009. 15 Rule 14.22 of chapter 2 part 14 of the Rules of the High Court of Justice 2009. mannbenham.com The claim form must be accompanied by any written evidence and documents in support of the claim.
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