Devant wins at Privy Council

THE Privy Council has allowed an appeal filed by activist Devant Maharaj who challenged the local courts decision to dismiss a judicial review application he filed when he was refused information from the National Energy Corporation (NEC) because the legal action was filed out of time.

In a 24-page decision yesterday, the Privy Council provided guidance on the issue of a judge’s discretion when considering if there is good reason for extending time to file a claim as had been sought by Maharaj.

“While prejudice or detriment will normally be important considerations in deciding whether to extend time, there will undoubtedly be circumstances in which leave may properly be refused despite their absence. One example might be where a long delay was wholly lacking in excuse and the claim was a very poor and inconsequential one on the merits, such that there was no good reason to grant an extension,” Lord Lloyd-Jones said in his reasons.

Lloyd-Jones considered whether to send the case back for consideration on whether leave to apply for judicial review ought to be set aside because it was out of time, but said in Maharaj’s case did not have to do so since he received the information he wanted in October 2018.

Initially, the NEC resisted the disclosure of the information sought on the basis that there had been delay, but the Privy Council judges said the failure of NEC to disclose the information sought once it had accepted a legal obligation to do so, was irresponsible on the part of a public body.

In their reasons, Lords Reed, Lady Black, Lloyd-Jones, Lords Briggs and Kitchin described the provisions of the Judicial Review Act of 2000 and its interaction with the Civil Procedure Rules of 1998 to be “not entirely happily drafted.”

They said while it was clear an application had to be made promptly – within three months from the date the grounds first arose – the legislation requires a judge to consider the issues of prejudice and detriment when considering whether to refuse leave because of delay.

They said such considerations may, depending on the circumstances, be relevant to the determination on promptitude and if there is a good reason to extend time. “If prejudice and detriment are to be excluded from the assessment of lack of promptitude or whether a good reason exists for extending time, the law will not operate in an even-handed way,” the judgment said.

In July 2009, in a freedom of information application (FOIA), Maharaj had asked for the curriculum vitae and qualifications of the corporation’s chief executive officer.

In a statement, Maharaj, who was represented by Michael Fordham, QC, Anand Ramlogan, SC, Jessica Boyd and Alvin Pariagsingh, said he was elated with the ruling.

He said at the time of the request he was unfairly treated and by refusing access, the government was able to hide evidence of discrimination which, he said, he was collecting on behalf of the Indo -Trinbago Equality Council as part of a comparative analysis to determine if there was unfair exclusion of particular sections of the national community from appointments to the State sector. The NEC was also ordered to pay Maharaj’s costs.