• Chapter 4: Chapter 4: Judicial Review

    • 20. Application for judicial review

      (1) An application to the Court of First Instance for one or more of the following forms of relief —
      (a) a mandatory, prohibiting or quashing order;
      (b) a declaration or injunction under subsection (2); or
      (c) an injunction under section 18 restraining a person not entitled to do so from acting in an office to which that section applies,
      shall be made in accordance with court procedure rules by a procedure to be known as an application for judicial review.
      (2) A declaration may be made or an injunction granted under this subsection in any case where an application for judicial review, seeking that relief, has been made and the Court of First Instance considers that, having regard to —
      (a) the nature of the matters in respect of which relief may be granted by mandatory, prohibiting or quashing orders;
      (b) the nature of the persons and bodies against whom relief may be granted by such orders; and
      (c) all the circumstances of the case,
      it would be just and convenient for the declaration to be made or for the injunction to be granted, as the case may be.
      (3) The Court of First Instance —
      (a) must refuse to grant relief on an application for judicial review; and
      (b) may not make an award under subsection (13) on such an application,
      if it appears to the Court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.
      (4) The Court may disregard the requirements in subsection (3) if it considers that it is appropriate to do so for reasons of exceptional public interest.
      (5) If the Court grants relief or makes an award in reliance on subsection (4), the Court must certify that the condition in subsection (4) is satisfied.
      (6) No application for judicial review shall be made unless the leave of the Court of First Instance has been obtained in accordance with court procedure rules, and the Court shall not grant leave to make such an application unless —
      (a) it considers that the applicant has a sufficient interest in the matter to which the application relates; and
      (b) the applicant has provided the Court with any information about the financing of the application that is specified in court procedure rules for the purposes of this paragraph.
      (7) The information that may be specified for the purposes of subsection (6)(b) includes —
      (a) information about the source, nature and extent of financial resources available, or likely to be available, to the applicant to meet liabilities arising in connection with the application; and
      (b) if the applicant is a body corporate that is unable to demonstrate that it is likely to have financial resources available to meet such liabilities, information about its members and about their ability to provide financial support for the purposes of the application.
      (8) Court procedure rules made under subsection (6)(b) that specify information identifying those who are, or are likely to be, sources of financial support must provide that only a person whose financial support (whether direct or indirect) exceeds, or is likely to exceed, a level set out in the court procedure rules has to be identified.
      (9) When considering whether to grant leave to make an application for judicial review, the Court of First Instance —
      (a) may of its own motion consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred; and
      (b) must consider that question if the defendant asks it to do so.
      (10) If, on considering that question, it appears to the Court of First Instance to be highly likely that the outcome for the applicant would not have been substantially different, the Court must refuse to grant leave.
      (11) The Court may disregard the requirement in subsection (10) if it considers that it is appropriate to do so for reasons of exceptional public interest.
      (12) If the Court grants leave in reliance on subsection (11), the Court must certify that the condition in subsection (11) is satisfied.
      (13) On an application for judicial review the Court of First Instance may award to the applicant damages, restitution or the recovery of a sum due if —
      (a) the application includes a claim for such an award arising from any matter to which the application relates; and
      (b) the Court is satisfied that such an award would have been made if the claim had been made in an action begun by the applicant at the time of making the application.
      (14) If, on an application for judicial review, the Court of First Instance quashes the decision to which the application relates, it may in addition —
      (a) remit the matter to the Court, tribunal, Global Market's Authority or the Board which made the decision, with a direction to reconsider the matter and reach a decision in accordance with the findings of the Court of First Instance; or
      (b) substitute its own decision for the decision in question.
      (15) The power conferred by subsection (14)(b) is exercisable only if —
      (a) the decision in question is made by a Court, tribunal, Global Market's Authority or the Board;
      (b) the decision is quashed on the ground that there has been an error of law; and
      (c) without the error, there would have been only one decision which the Court, tribunal, Global Market's Authority or the Board could have reached.
      (16) Unless the Court of First Instance otherwise directs, a decision substituted by it under subsection (14)(b) has effect as if it were a decision of the relevant Court, tribunal or Global Market's Authority or of the Board.
      (17) Where the Court of First Instance considers that there has been an undue delay in making an application for judicial review, the Court may refuse to grant —
      (a) leave for the making of the application; or
      (b) any relief sought on the application,
      if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any other person or would be detrimental to good administration.
      (18) Subsection (17) does not alter any ADGM enactment which has the effect of limiting the time within which an application for judicial review may be made.
      (19) In this section "the conduct complained of", in relation to an application for judicial review, means the conduct (or alleged conduct) of the defendant that the applicant claims justifies the Court of First Instance granting relief.
      (20) In this Chapter "tribunal", in relation to an application for judicial review, includes any Global Market's Authority decision-making body including, without limitation, committees and appeals panels.

    • 21. Use of information about financial resources

      (1) This section applies when the Court of First Instance or the Court of Appeal is determining by whom and to what extent costs of or incidental to judicial review proceedings are to be paid.
      (2) The information to which the Court must have regard includes —
      (a) information about the financing of the proceedings provided in accordance with section 20(6)(b); and
      (b) any supplement to that information provided in accordance with court procedure rules.
      (3) The Court must consider whether to order costs to be paid by a person, other than a party to the proceedings, who is identified in that information as someone who is providing financial support for the purposes of the proceedings or likely or able to do so.
      (4) In this section and sections 22 to 24 "judicial review proceedings" means —
      (a) proceedings on an application for leave to apply for judicial review;
      (b) proceedings on an application for judicial review;
      (c) any proceedings on an application for leave to appeal from a decision in proceedings described in paragraph (a) or (b); and
      (d) proceedings on an appeal from such a decision,
      and the proceedings described in paragraphs (a) to (d) are "stages" of judicial review proceedings.

    • 22. Interveners and costs

      (1) This section applies where —
      (a) a person is granted permission to file evidence or make representations in judicial review proceedings; and
      (b) at that time, the person is not a relevant party to the proceedings.
      (2) That person is referred to in this section as an "intervener".
      (3) A relevant party to the proceedings may not be ordered by the Court of First Instance or the Court of Appeal to pay the intervener's costs in connection with the proceedings.
      (4) Subsection (3) does not prevent the Court making an order if it considers that there are exceptional circumstances that make it appropriate to do so.
      (5) On an application to the Court of First Instance or the Court of Appeal by a relevant party to the proceedings, if the Court is satisfied that a condition described in subsection (6) is met in a stage of the proceedings that the Court deals with, the Court must order the intervener to pay any costs specified in the application that the Court considers have been incurred by the relevant party as a result of the intervener's involvement in that stage of the proceedings.
      (6) Those conditions are —
      (a) the intervener has acted, in substance, as the sole or principal applicant, defendant, appellant or respondent;
      (b) the intervener's evidence and representations, taken as a whole, have not been of significant assistance to the Court;
      (c) a significant part of the intervener's evidence and representations relates to matters that it is not necessary for the Court to consider in order to resolve the issues that are the subject of the stage in the proceedings; or
      (d) the intervener has behaved unreasonably.
      (7) Subsection (5) does not require the Court to make an order if it considers that there are exceptional circumstances that make it inappropriate to do so.
      (8) In determining whether there are exceptional circumstances that are relevant for the purposes of subsection (4) or (7), the Court must have regard to criteria specified in court procedure rules.
      (9) For the purposes of this section, "a relevant party" to judicial review proceedings means any of the following —
      (a) a person who is or has been an applicant or defendant in the proceedings described in section 21(4)(a), 21(4)(b) or 21(4)(c);
      (b) a person who is or has been an appellant or respondent in the proceedings described in section 21(4)(d);
      (c) any other person who is or has been directly affected by the proceedings and on whom the application for judicial review, or for leave to apply for judicial review, has been served.
      (10) If a person who is an intervener in judicial review proceedings becomes a relevant party to the proceedings, the person is to be treated for the purposes of subsections (3) and (5) as having been a relevant party, rather than an intervener, at all times when involved in the proceedings.

    • 23. Capping of costs

      (1) In this section and section 24
      (a) "costs capping order" is an order limiting or removing the liability of a party to judicial review proceedings to pay another party's costs in connection with any stage of the proceedings;
      (b) "the Court" means the Court of First Instance or the Court of Appeal.
      (2) For the purposes of this section and section 24, in relation to judicial review proceedings —
      (a) the applicant for judicial review is the person who is or was the applicant in the proceedings on the application for judicial review; and
      (b) references to relief being granted to the applicant for judicial review include the upholding on appeal of a decision to grant such relief at an earlier stage of the proceedings.
      (3) A costs capping order may not be made by the Court of First Instance or the Court of Appeal in connection with judicial review proceedings except in accordance with this section and section 24.
      (4) The Court may make a costs capping order only if leave to apply for judicial review has been granted.
      (5) The Court may make a costs capping order only on an application for such an order made by the applicant for judicial review in accordance with court procedure rules.
      (6) Court procedure rules may, in particular, specify information that must be contained in the application, including —
      (a) information about the source, nature and extent of financial resources available, or likely to be available, to the applicant to meet liabilities arising in connection with the application; and
      (b) if the applicant is a body corporate that is unable to demonstrate that it is likely to have financial resources available to meet such liabilities, information about its members and about their ability to provide financial support for the purposes of the application.
      (7) The Court may make a costs capping order only if it is satisfied that —
      (a) the proceedings are public interest proceedings;
      (b) in the absence of the order, the applicant for judicial review would withdraw the application for judicial review or cease to participate in the proceedings; and
      (c) it would be reasonable for the applicant for judicial review to do so.
      (8) The proceedings are "public interest proceedings" only if —
      (a) an issue that is the subject of the proceedings is of general public importance;
      (b) the public interest requires the issues to be resolved; and
      (c) the proceedings are likely to provide an appropriate means of resolving it.
      (9) The matters to which the Court must have regard when determining whether proceedings are public interest proceedings include —
      (a) the number of people likely to be directly affected if relief is granted to the applicant for judicial review;
      (b) how significant the effect on those people is likely to be; and
      (c) whether the proceedings involve consideration of a point of law of general public importance.
      (10) The Board may by ADGM enactment amend this section by adding, omitting or amending matters to which the Court must have regard when determining whether proceedings are public interest proceedings.
      (11) Before making any ADGM enactment under subsection (10), the Board must consult the Chief Justice and no such ADGM enactment may be made under subsection (10) unless a draft of it has been provided to, and approved by, the Chief Justice.

    • 24. Capping of costs: orders and their terms

      (1) In this section —
      (a) "free of charge" means otherwise than for or in expectation of fee, gain or reward;
      (b) "legal representative", in relation to a party to the proceedings, means a person exercising a right of audience or conducting litigation on the party's behalf.
      (2) The matters to which the Court must have regard when considering whether to make a costs capping order in connection with judicial review proceedings, and what the terms of such an order should be, include —
      (a) the financial resources of the parties to the proceedings, including the financial resources of any person who provides, or may provide, financial support to the parties;
      (b) the extent to which the applicant for the order is likely to benefit if relief is granted to the applicant for judicial review;
      (c) the extent to which any person who has provided, or may provide, the applicant with financial support is likely to benefit if relief is granted to the applicant for judicial review;
      (d) whether legal representatives for the applicant for the order are acting free of charge;
      (e) whether the applicant for the order is an appropriate person to represent the interests of other persons or the public interest generally.
      (3) A costs capping order that limits or removes the liability of the applicant for judicial review to pay the costs of another party to the proceedings if relief is not granted to the applicant for judicial review must also limit or remove the liability of the other party to pay the applicant's costs if it is.
      (4) The Board may by ADGM enactment amend this section by adding to, omitting or amending the matters listed in subsection (2).
      (5) Before making any ADGM enactment under subsection (4), the Board must consult the Chief Justice and no such ADGM enactment may be made under subsection (4) unless a draft of it has been provided to, and approved by, the Chief Justice.

    • 25. Appeals against Decisions or Procedures of Global Market's Authorities

      General

      (1) Any order, judgment, decision or procedure made by any Global Market's Authority may be appealed against or questioned by any interested party, or by any party to the proceedings, on the grounds that it is wrong in law or is in excess of jurisdiction by applying to the Comercial and Civil Division of the Court of First Instance.
      (2) For the purposes of this section, only the following are "Global Market's Authorities" —
      (a) the Global Market Registration Bureau;
      (b) the Financial Services Regulatory Authority; and
      (c) the Appeals Panel.
      (3) Subject to the provisions of these Regulations and to court procedure rules, the Comercial and Civil Division of the Court of First Instance shall, in accordance with section 16(2), have jurisdiction to hear and determine any application, or any appeal (whether by way of case stated or otherwise), which it has power to hear and determine under or by virtue of these Regulations or any other ADGM enactment.

      References or appeals from a decision of the Registration Authority

      (4) Subsections (5) to (12) apply in the case of a reference or appeal to the Court of First Instance (whether made under these Regulations, the Commercial Licensing Regulations 2015, the Companies Regulations 2015, or any other ADGM enactment) in respect of a decision of the Registration Authority.
      (5) In subsections (4) to (12) —
      (a) "relevant decision" means a decision mentioned in subsection (4); and
      (b) "Registration Authority" means the Global Market Registration Bureau.
      (6) Court procedure rules may make provision for the suspension of a relevant decision which has taken effect, pending determination of the reference or appeal.
      (7) The Court of First Instance may review the relevant decision of the Registration Authority and may consider —
      (a) any evidence relating to the subject-matter of the reference or appeal, whether or not it was available to the Registration Authority at the material time; and
      (b) correct any mistake in law or misdirection of the Registration Authority relating to the subject-matter of the reference or appeal and to the relevant decision.
      (8) In the case of a reference under section 52(11) of the Commercial Licensing Regulations 2015 (third party rights), the Court of First Instance —
      (a) must determine what (if any) is the appropriate action for the Registration Authority to take in relation to the matter; and
      (b) on determining the reference, must remit the matter to the Registration Authority with such directions (if any) as the Court considers appropriate for giving effect to its determination.
      (9) In the case of —
      (a) a reference under section 248(3) of the Companies Regulations 2015 (decision notice), the Court of First Instance must —
      (i) determine whether, having regard to all of the circumstances, it is appropriate for the Registration Authority to make a disqualification order; or
      (ii) dismiss the reference; and
      (iii) in either case, on determining the reference, remit the matter to the Registration Authority with such directions (if any) as the Court considers appropriate for giving effect to its determination;
      (b) an appeal under section 254(1) of the Companies Regulations 2015 (appeals), the Court of First Instance must —
      (i) determine whether, having regard to all of the circumstances, it is appropriate for the Registration Authority to issue a decision notice; or
      (ii) dismiss the appeal; and
      (iii) in either case, on determining the appeal, either —
      a. remit the matter to the Registration Authority with such directions as the Court considers appropriate for giving effect to its determination; or
      b. make any order or determination that the Registration Authority might have made.
      (10) In any other case, the Court of First Instance must determine the reference or appeal by either —
      (a) dismissing it; or
      (b) remitting the matter to the Registration Authority with a direction to reconsider and reach a decision in accordance with the findings of the Court.
      (11) The findings mentioned in subsection (10)(b) are limited to findings as to —
      (a) issues of fact or law;
      (b) the matters to be, or not to be, taken into account in making the decision; and
      (c) the procedural or other steps to be taken in connection with the making of the decision.
      (12) The Registration Authority must act in accordance with the determination of, and any direction given by, the Court of First Instance.

      References from the Appeals Panel

      (13) Subsections (14) to (29) apply in the case of a reference to the Court of First Instance (whether made under these Regulations, the Financial Services and Markets Regulations 2015, or any other ADGM enactment) in respect of a decision of the Appeals Panel.
      (14) In subsections (13) to (25) —
      (a) "relevant decision" means a decision mentioned in subsection (13);
      (b) "the decision-maker" means —
      (i) the Regulator; and/or
      (ii) the Appeals Panel,
      as the case may be;
      (c) "Regulator" means the Financial Services Regulatory Authority; and
      (d) "Regulatory Committee" and "Appeals Panel" have the meaning prescribed under Chapters 1 and 2 of Part 19 of the Financial Services and Markets Regulations 2015 (Regulatory Committee, Appeals Panel and Disciplinary Measures).
      (15) Court procedure rules may provide for the suspension of a relevant decision which has taken effect, pending determination of the reference.
      (16) The Court of First Instance may review the relevant decision of the Appeals Panel and may consider —
      (a) any evidence relating to the subject-matter of the reference, whether or not it was available to the decision-maker at the material time; and
      (b) and correct any mistake in law or misdirection of the decision-maker relating to the subject-matter of the reference and to the relevant decision.
      (17) In the case of a disciplinary reference or a reference under section 254(11) of the Financial Services and Markets Regulations 2015 (Third Party rights), the Court of First Instance —
      (a) must determine what (if any) is the appropriate action for the Regulator to take in relation to the matter; and
      (b) on determining the reference, must remit the matter to the Regulator with such directions (if any) as the Court considers appropriate for giving effect to its determination.
      (18) In any other case, the Court of First Instance must determine the reference by either —
      (a) dismissing it; or
      (b) remitting the matter to the Regulator with a direction to reconsider and reach a decision in accordance with the findings of the Court.
      (19) The findings mentioned in subsection (18)(b) are limited to findings as to —
      (a) issues of fact or law;
      (b) the matters to be, or not to be, taken into account when making the decision; and
      (c) the procedural or other steps to be taken in connection with the making of the decision.
      (20) The Regulator must act in accordance with the determination of, and any direction given by, the Court of First Instance.
      (21) A reference is a "disciplinary reference" for the purposes of subsections (13) to (20) and this subsection (21) if it is in respect of any of the following decisions —
      (a) a decision to publish a statement under section 231 of the Financial Services and Markets Regulations 2015 (public censure);
      (b) a decision to impose a fine under section 232 of the Financial Services and Markets Regulations 2015 (financial penalties);
      (c) a decision to suspend a permission or impose a restriction under section 233 of the Financial Services and Markets Regulations 2015 (suspension and restriction of Financial Services Permission).
      (22) In determining in accordance with subsection (17) a reference made (whether under these Regulations, the Financial Services and Markets Regulations 2015 or any other ADGM enactment) as a result of a decision notice given by the Regulator, the Court may not direct the Regulator to take action which it would not, as a result of section 249(2) of the Financial Services and Markets Regulations 2015 (decision notices), have had power to take when giving the notice.
      (23) The action specified in a decision notice must not be taken —
      (a) during the period within which the matter to which the notice relates may be referred to the Court of First Instance (whether under these Regulations, the Financial Services and Markets Regulations 2015 or any other ADGM enactment); and
      (b) if the matter is so referred, until the reference, and any appeal against the Court's determination, has been finally disposed of.
      (24) The Court may, on determining a reference (whether made under these Regulations, the Financial Services and Markets Regulations 2015 or any other ADGM enactment) in respect of a decision of the Regulator, make recommendations as to its regulating provisions or its procedures.
      (25) No reference may be made to the Court of First Instance under subsection (13) before the Appeals Panel has made a relevant decision; and the Court shall not have jurisdiction under subsection (13) to entertain or determine any reference of a decision, direction or order of the Regulator or the Regulatory Committee until it becomes the subject of a relevant decision by the Appeals Panel.
      (26) Subsections (27) to (29) apply in the case of proceedings before the Court of First Instance in respect of a decision of the Appeals Panel.
      (27) A person contravenes these Regulations if that person, without reasonable excuse —
      (a) refuses or fails —
      (i) to attend following the issue of a writ of attendance by the Court of First Instance; or
      (ii) to give evidence; or
      (b) alters, suppresses, conceals or destroys, or refuses to produce a document which he may be required to produce (whether or not pursuant to a writ of production) for the purposes of proceedings before the Court.
      (28) A person who commits a contravention of subsection (27)(a) shall be liable to a fine not exceeding level 3 on the standard fines scale.
      (29) A person who commits a contravention of subsection (27)(b) shall be liable to a fine not exceeding level 8 on the standard fines scale.