A. Introduction
Judicial review is the process through which court protects citizens from the unlawful decisions of public bodies. Broadly speaking, the procedural fairness (or natural justice) and substantial fairness are two major independent grounds for granting judicial review. Procedural fairness is referred to be the “minimum procedure steps a government must take before deprive a person of life, liberty, or property.”[1] On the other hand, the substantial fairness deals with substantial issues including illegality, irrationality[2], and protection of legitimate expectation[3].
Although the ‘constitutional duty’ of the procedure fairness has been upheld by the courts in both United Kingdome (UK)[4] and Hong Kong[5], the threshold to grant judicial review based on procedural unfairness has never been automatic. However, unqualified adherence to the rule of procedural fairness has never been a universal principle, and in many occasions, courts would require the proof of substantial unfairness, or actual prejudice, from the applicant, as a form to qualify the application of natural justice.
With this in mind, this essay seeks to clarify the common law position regarding the extent of actual prejudice required for granting judicial review based on procedural unfairness. First, current perspectives to deal with this issue will be explored in detail. Secondly, legal and academic debate of current legal position will be discussed. Finally, some tentative proposals to improve the current scheme will be outlined.
B. The extent of actual prejudice required under current law
There is no automatic right of either of the two pillars of procedural fairness, including the rule of fair hearing (requirement for notice, the need for a ‘hearing’, legal representation and the duty to provide adequate reasons) and the rule against bias, except the requirement of taking reasonable steps to provide clear notice to the affected party[6]. Instead, the court will be more likely to require some extent of actual prejudice depending on the context of a particular case. Two main perspectives can be observed.
(1).Causation analysis in the rule of fair hearing: the outcome-based view and risk-based view
Although not common, the UK and Hong Kong courts have, in many occasions, opted to strike out complaints based on procedural unfairness if it was concluded that outcome for the claimants would be inevitably same, as illustrated in two UK cases Cinnamond v British Airport Authority[7] and Glynn v Keele University[8].
Several Hong Kong decisions also supported this approach, under which court asks: would the outcome be different if procedural defects challenged were corrected by the court. If the answer is ‘No’, then court is less likely to grant the judicial review. In Leung Fuk Wah Oil v Commissioner of Police[9], Cheung JA stated that ‘judicial review being a discretionary remedy, if Mr Leung (the applicant) does not, as a matter of substance, suffer prejudice, then the failure to observe the principle of fairness should not be a ground for quashing the decision.’[10] It’s clear that the prejudice here means actual prejudice and it can be concluded that failure to show that the outcome would be different is the reason the court didn’t held for the claimant. Similarly, the court in Ng Nga Wo v Director of Health[11] also declined to grant judicial review because the applicant did not show that the substantive outcome will be different if the oral hearing was granted to him[12].
The outcome based approach is hostile to the applicant of judicial review because the burden to prove the outcome would be different is on applicant and the standard about whether the outcome would be different is high, as illustrated in Re Ngai Kin-wah[13].
A more lenient risk-based approach was used in Chu Ping Tak v. Commissioner of Police[14]. The court held that the presence of a risk of prejudice[15] is enough to be actual prejudice. Although not happened in Hong Kong yet, the legislative endorsement of this perspective has been accepted in UK. The Criminal Justice and Courts Act 2015 (CJCA) provides a statutory mandate for the threshold of likelihood instead of inevitability of the unfair result in dealing with procedural unfairness[16].
However, highly depending on the court’s second guessing, the causation based perspective is still not the predominant approach in case law[17]. In Chief Constable of North Walse Police v Evans[18], the House of Lord stated that when a judicial review was applied on the ground of “whether the rules of natural justice have been observed”[19], the court should only concern with ‘on the correctness of the decision-making process’[20]. Although, after the CJCA, the causation analysis approach may be applied in more cases in UK, the application of this approach in Hong Kong would be still limited.
(2).Cost benefit analysis in the rule of fair hearing: balancing different interests
By contrast, a context based approach, the cost benefit analysis, has been fully developed in common law world, as illustrated in United States (US) case Goldberg v Kelly[21] and English case Re Pergamon Press Ltd[22], by balancing different interests or values before deciding whether and to what extent the actual prejudice would be required[23]. Unlike the causation analysis, this approach can qualify the application of pure procedural fairness without referring to court’s second guessing and is therefore more persuasive and acceptable by parties at stake.
Academically, several sliding scales of adjudication models are illustrated in P. Crain’s spectrum theory of procedural fairness[24] and D. Mullan’s special interests analysis[25]. In US, procedural due process is explicitly limited to government action that deprives an individual of “life, liberty, or property”[26]. In UK and Hong Kong, there is no such explicit constitutional provision, but the courts in both jurisdictions adopt a similar position in case law. The cost benefit analysis is sometimes manifested as proportionality test. In Stock Exchange of Hong Kong Ltd. v New World Development Co. Ltd.[27], the court held that the right of legal representation should be qualified with proportionality test and provided a non-exhaustive list of factors to consider for future cases[28].
As an “instrumental connection between process rights and the correct determination on the substance of the cases”[29], cost benefit analysis is similar to the risk based review discussed in the previous section. The basic reasoning of this approach is that the more important of the individual legal interest and the less important of the public interest at stake, the more likely the court will take a ‘high standard of fairness’, requiring less or none the proof of actual prejudice suffered by applicant.
The cases related to fundamental human rights are normally under the ‘high standard of fairness’. In an immigration case Secretary for Security v. Prabakar[30], the court held that when the relevant issue is “plainly one of momentous importance to the individual concerned”, high standard of fairness is demanded[31] and the court need consider a full spectrum of information of the individual. In another case FB v Director of Immigration[32], the court held that denying legal representation to the applicants who may be the torture victims after been deported to their home countries would amount to procedure unfairness. In these cases, the court did not consider whether there is actual prejudice to the applicant, the fact that the issue is relevant to fundamental human right is sufficient ground for the grant of judicial review if procedural defects can be detected.
Besides the fundamental human rights, if the administrative decision would have a detrimental impact on individual’s pre-existing legal interests, actual prejudice will not be required for the grant of judicial review. In Liu Pik Han v. Hong Kong Federation of Insurers Appeal Tribunal[33], Lam J held that because the applicant was facing a serious charge of misconduct with implication of her integrity[34], the failure to provide an opportunity of oral hearing can be the ground of judicial review. In McInnes v Onslow-Fane[35], Megarry V-C stated that application cases was under less stringent test of fairness than forfeiture cases, where property interest would be significantly interfered with[36]. The explanation of this is that in forfeiture case, more important individual interest has been impacted by the decision[37].
By contrast, if the individual interest is outweighed by public interest or administrative efficiency, the court would be less like to give applicant absolute right of fair hearing unless there is the proof of actual prejudice. In Re Pergamon Press Ltd[38], the court decided that there is no breach of procedural fairness after inspectors refused to give the detailed assurances claimed by the directors of the companies which were under investigation by the inspectors after balancing the potential serious effect not this refusal and the administrative interest of confidentiality and efficiency[39].
(3).The infiltration of actual prejudice in the rule against bias.
Unlike the rule of fair hearing, the rule against bias is more procedural oriented and actual prejudice was rarely considered. One important reason is that actual bias is hard to be satisfied because the subjective content of decision makers needs to be proved. Therefore, the court is more likely to adopt a more practical methods based on the standard of apparent bias.
Based on objective test, apparent bias approach asks whether a reasonable man would perceive there is a bias. It is clear that the even if as a matter of fact there is no actual bias, apparent bias may still be accepted as the ground of judicial review. However, this does not mean that the apparent bias is insulated from actual prejudice. In the case Deacons v White & Case[40], Ribeiro PJ utilized the outcome-based view when he applied the objective test of apparent bias in the case. If granting the appeal has no impact “on the scope of discovery or on any other procedural or substantive aspect of the action”[41], the test of apparent bias would be passed and no leave of judicial review will be granted. Furthermore, the risk-based reasoning can also be observed in case law on the rule against bias. In Wong Yui Hin James v Hong Kong Arts Development Council[42], the decision maker announced the result of a competitive bidding process prior to appeal hearing sought by the applicant, who submitted another bid but failed. The court held that “a fair-minded and informed observer would conclude that there was a real possibility that the Review Committee had pre-determined the pending appeal and was thus biased.”[43] It is clear from the above two cases that even though the actual prejudice does not act as an independent ground in this scenario, it can still influence the application of objective test.
In brief, in both of the two pillars of natural justice, the actual prejudice has been used as a tool to limit the application of procedural fairness. Although the cost benefit analysis in cases related to fair hearing is most commonly observed scenario, the causation based approach is still another option for court in both cases on fair hearing and rule against bias. However, the current legal scheme regarding the extent of actual prejudice required is not without pitfalls and some problems and how to improve current scheme will be discussed in the next section.
[1] Daniel Hall, Administrative Law, Bureaucracy in a Democracy, 2nd Edn, Prentice Hall 2001, 50.
[2] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410.
[3] Attorney-General of Hong Kong v Ng Yuen Shui [1983] HKC 23.
[4] Bushell & Anor v Secretary of State for the Environment [1981] AC 75, 95B.
[5] Rowse v Secretary for Civil Service [2008] HKCFI 549, [2008] 5 HKLRD 217, [134].
[6] R v Home Secretary, ex parte Fayed [1998] 1 WLR 763.
[7] [1980] 1 W.L.R.582.
[8] [1971] 1 W.L.R.487.
[9] [2002] HKCA 354, [2002] 3 HKLRD 653.
[10] ibid [76].
[11] [2006] HKCFI 474, HCAL 16/2006 (16 May 2006).
[12] ibid [36].
[13] [1986] HKCFI 203, [1987] 1 HKC 236 [15].
[14] [2002] HKCFI 580, [2002] 3 HKLRD 679.
[15] ibid [62].
[16] Criminal Justice and Courts Act 2015, s84.
[17] P.P.Craig, Administrative Law, 5th Edn, Sweet & Maxwell 2003, 428.
[18] [1982] 1 W.L.R. 1155.
[19] ibid 1175.
[20] ibid 1174.
[21] 397 U.S. 254 (1970).
[22] [1971] Ch. 388.
[23] In US, due process cost-benefit analysis is commonly applied by the court by considering the factors as following, “1,The additional harm to the individual that results from not requiring a predetermination hearing; 2, The value that requiring additional process will have to the individual; 3, The likelihood of error without additional safeguards; 4, The cost and burdens imposed by requiring additional procedures; 5, Other public concerns” (Daniel Hall, Administrative Law, Bureaucracy in a Democracy, 2nd Edn, Prentice Hall 2001,59.); In UK, the court will also balance a lot of factors including:”the individual interest at issue; the benefits to be derived from add procedural safeguards; and the cost to the administration, both direct and indirect, of complying with these procedural safeguards.”(P.P.Craig, Administrative Law,5th Edn, Sweet & Maxwell 2003,425.).
[24] P. Crain, ‘Procedures and Administrative Decision Making: A Common Law Perspective’ (1993) European Review of Public Law (Special Issue) 55, 62-63.
[25] D. Mullan, ‘Fairnes: the New Natural Justice?’ (1975) 25 University of Toronto Law Journal 281.
[26] The Fifth Amendment to the Constitution of the US provides that “No person shall be deprived of life, liberty, or property, without due process of law”.
[27] [2006] HKCFA 44, (2006) 9 HKCFAR 234.
[28] ibid [219].
[29] P. P. Craig and Richard Rawlings, Law and Administration in Europe, Oxford University Press 2003, 37.
[30] [2004] HKCFA 43, (2004) 7 HKCFAR 187.
[31] ibid [44].
[32] [2008] HKCFI 1069, [2009] 2 HKLRD 346.
[33] [2005] HKCFI 539, [2005] 3 HKC 242.
[34] ibid [34].
[35] [1978] 1 W.L.R.
[36] ibid 1529.
[37] P. P. Craig, Administrative Law, 5th Edn, Sweet & Maxwell 2003, 428.
[38] [1971] Ch. 388.
[39] ibid, 404.
[40] [2003] HKCFA 16, (2003) 6 HKCFAR 322.
[41] ibid[35].
[42] [2004] HKCFI 797; HCAL 57/2003 (9 September 2004).
[43] ibid [77].