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Raising the Bar- Amending the threshold for Leave In Judicial Review Proceedings*

Wong Huiwen Denise & Makoto Hong Cheng

(2016) 28 SAcLJ 527

Following Chan Hiang Leng Colin v Minister for Information and the Arts [1996] 1 SLR(R) 294, the appropriate threshold for granting leave applications in judicial review proceedings is that of the “prima facie case of reasonable suspicion” or “what might on further consideration turn out to be an arguable case”. This article argues for a higher threshold to be imposed, where leave will only be granted where it is clear to the judge that the case is arguable based on the information and evidence available before the judge. It is argued that a higher default threshold would accord better with the purpose of the leave requirement, which is to act as an effective filter against unmeritorious claims. It is also in accord with international practice. Further, this article explores the possibility that in certain circumstances, it may be appropriate to apply an enhanced arguability test so that leave in judicial review proceedings is only granted when the case has a real prospect of success