B. Leave stage: application and procedure

B. Leave stage: application and procedure

To apply for judicial review, an applicant must first obtain “leave” (i.e. permission) from the High Court. The application is made by way of a “Form 86” (supported by affidavit) on an ex parte basis (i.e. that the application does not have to be served on the intended respondent).

The Form 86 must at least contain a statement of the following basic matters:

1. the name, description and address of the applicant;
2. the name, description and address of the proposed respondent;
3. the relief sought and the grounds on which it is sought;
4. the name, description and address of all interested parties (if any) known to the applicant;
5. the name and address of the applicant’s solicitors (if any); or
6. if no solicitor acts for the applicant, the applicant’s address for service.

An applicant has the duty of full and frank disclosure, meaning, broadly, that the applicant must disclose all information (that can be obtained by reasonable inquiry) which both support and are detrimental to his case, failing which the application may be refused or even when obtained, set aside later.

The applicant must show that the application is “reasonably arguable”, see the discussion by the Court of Final Appeal in Peter Po Fun Chan v Winnie CW Cheung & Anor (2007) 10 HKCFAR 676.

It must be noted that whilst an application for leave is made on ex parte basis, and is usually dealt with on paper, the Court may, in consideration of the application, on its own motion (or upon application), order an oral hearing to be held.  The Court may also order the proposed respondent to provide an “initial response”.

For the time within which such application must be made, see Timing. 

For the requirement that an applicant must have standing, see Standing of applicant.

For the requirement that an applicant must exhaust all alternative remedies, see Alternative remedy.