SIGNIFICANCE OF RIDGE V BALDWIN IN JUDICIAL REVIEW OF

Journal of the Indian Law Institute, 2020

2017

This article tells the story of the birth of modern judicial review. In the conventional account, the judge-led development of judicial review is one of the great successes of the twentieth century common law: “the greatest achievement of my judicial lifetime”, as Lord Diplock famously put it. On this interpretation, from the mid-twentieth century onwards, the judiciary abandoned its earlier quiescence and, building on doctrines, approaches and remedies that had been used to control inferior tribunals since Victorian times, fashioned a new body of law capable of subordinating the administrative state to the rule of law. The modern law is thus seen as representing the same common law commitment to the rule of law seen in early cases such as Entick v Carrington and Cooper v Wandsworth. This article challenges this story of continuous unbroken development. On the face of it, the cases from Ridge to GCHQ did indeed draw on an older line of case law. Yet, as we demonstrate, the 1960s and...

In the instantaneous aftermath of the announcement of Justice Kirby's retirement from the bench, the predominant conversations fixated around who was to be his replacement. These discussions were held with the incontrovertible appreciation of the invaluable contributions made by Justice Kirby to Botswana's jurisprudence, particularly during his illustrious stay at the Court of Appeal. Attempting to abridge Justice Kirby's legacy into a distinct portfolio is a considerably unmanageable task. One immediately gets to appreciate his legal dexterousness and the ease with which his expertise straddles virtually all fields of the law. Consequently, we found ourselves pleasantly spoilt for choice in our selection of the area in which we must pay tribute to a colossal legal giant. We ultimately settled on assessing Justice Kirby's contributions in civil practice. This paper, therefore, examines Justice Kirby's contributions to civil practice in Botswana, principally through his adoption of a contextual and purposive interpretation of the Rules of the High Court. Through the classical case of Gofhamodimo v Koboyankwe; Tiro v the Attorney General, and other select cases, the paper highlights the instrumental efforts of Justice Kirby in curbing some of the potentially calamitous consequences of a formulaic approach to the Rules of the High Court, 2008, which ushered in a robust system of judicial case management. His contribution in this regard is conspicuous and presents a triumph in ensuring just, efficient and speedy disposal of cases, which is what the judicial case management system intended. The percipience with which he approached and interpreted the Rules shaped the law in civil practice and unquestionably places him amongst the most memorable judicial figures in Botswana's legal history. the objectives which were intended to be achieved by judicial case management, these expectations were not wholly misplaced. However, early implementation of the Rules brought to the fore some disconcerting teething problems which threatened to unravel the very objectives which underpinned the Rules. These challenges were predominantly prevalent in the application of Order 42 of the Rules of the High Court which deals with case management conferences. Early on, there was a spate of cases in which judges either dismissed cases or entered final judgment on account of a party's failure to comply with any of the Orders relating to case management. In a formulaic approach to the interpretation of the respective Orders, judges were of the opinion that they were required to make these fatalistic orders in instances where there was failure to strictly adhere to the dictates of the Rules. Consequently, the Court of Appeal found itself inundated with appeals from litigants who were discontented by the inflexible manner in which High Court judges applied Order 42. In this respect, Justice Kirby commendably rose to the occasion by calling for a purposive interpretation of the Rules through which judges exercise a measure of discretion in dealing with non-compliance with the Rules. In the process, he provided instructive guidelines. The extensive reliance on his landmark judgments, by both the High Court and the Court of Appeal, accentuate their significance. In this paper, we demonstrate that Justice Kirby's philosophy to interpretation and application of the Rules indicates that, while the 2008 Rules of the High Court curbed the undesirable situation where the progress of cases was dependant on the whims and caprices of the litigants, the Rules are but a means to an end, being justice and the efficiency of the judiciary. To sufficiently appreciate the immense contributions of Justice Kirby to civil practice, and judicial case management in particular, it is apposite to chronicle the developments which gave rise to the current judicial case management system. This discussion shall illustrate that, over the years, the Rules of the High Court have gone through significant developments in order to address both new and old problems. Section 28 of the High Court Act 1 ("the Act") empowers *LLB, LL.M (University of Botswana) Attorney at Law.

(A Review of A. Tomkins & P. Scott (eds.), Entick v. Carrington: 250 Years of the Rule of Law, Oxford, Hart Publishing, 2015) The question posed in the title is ambiguous. It could be asked in circumstances where Entick v. Carrington is already on our Rule of Law radar or it could be asked in the opposite circumstance: it could relate to whether Entick should be added to our Rule of Law radar or, alternatively, whether it should be removed. In the recently published book Entick v. Carrington: 250 Years of the Rule of Law the case’s centrality to the Rule of Law is presupposed. Through answering both aspects of the question posed, I will ultimately conclude that although it may not have been on many Rule of Law radars there may exist sufficient justification for its addition. I answer the titular question from a position where the case’s appearance on my radar is a relatively recent event and in relation to the literature and debates associated with the conceptual content of the Rule of Law in the specific sense. It is this specific sense of the Rule of Law conceptual debates to which I refer in relation to the Rule of Law radar. I am aware of the widespread and frequent association of Entick with the Rule of Law in the context of constitutional law or public law more generally; especially in the UK common law tradition. The perspective adopted reflects my familiarity with the Rule of Law specific literature and it also reflects my relative ignorance of Entick before reading the book; something that may be the result of my being a non-UK trained lawyer. My examination of the relevance of the book and the case in relation to the Rule of Law specific literature, and from a position of relative non-familiarity with the case, will, I hope, provide a point of interest across all of these fields and will emphasise (or re-emphasise) the importance of the case and the relevance of the book.

2018

Reflecting on the foundations of legislative and adjudicative responsibility helps articulate the responsibility of the legislative body for the community's future, a future to be directed by the law as it is now to be. By contrast, the power to adjudicate conclusively on the breach of a law discloses a responsibility of a different orientation, a responsibly to relate to the present dispute the law as it was at that time past when the violation of the law allegedly occurred. This basic division of responsibility—for the community's future; for relating the community's past acts to present disputes—is a division informed by the need to address different needs in human communities. Among those needs will be the requirement to realise justice and rights. A community may qualify as a matter of legal jurisdiction the changes a legislature may introduce for the community's future and confer on a court the power to determine when legislation exceeds the legislature's jurisdiction. Where those qualifications are open-ended—as they are in many bills of rights—the exercise of judicial responsibility is partially unmoored from the past and open to the future. In such circumstances, adjudicative authority is being exercised, not with a view to the past, but to the future. It is here that the institution designed to take responsibility for the future may understand itself to be empowered to reply to the exercise of judicial responsibility by engaging in a dialogue on the community's future.

2015

for their insights and comments on earlier drafts. Workshop audiences at the Benjamin N. Cardozo School of Law, Columbia Law School, Harvard Law School, and the University of Chicago Law School, as well as our colleagues and students, also offered helpful suggestions. We thank Amanda Ciaccio of the Supreme Court of Illinois Library for her critical research support; Judge Gino DiVito, Gist Fleshman, John Flood, Judge Sue Myerscough, and Tina Schillaci for informing us about their courts' administrative practices; and