In January 2010 in Case C-456/08 the European Court of Justice found that Order 84A of the Rules of the Superior Courts was not in accordance with Article 1(1) of Directive 89/665.

The Commission had taken proceedings against Ireland over a failure by the National Roads Authority and the terms of Order 84A of the RSC.

Ireland lost on both points. The ECJ condemned Order 84A on the grounds it;

“..gives rise to uncertainty as to which decision must be challenged through legal proceedings and as to how periods for bringing an action are to be determined..”

The ECJ judgment recites a plea by Ireland that:-

“.. to date, no Irish court has dismissed, as being out of time, any action challenging a decision of a contracting authority made in the course of a public contract award procedure which was brought within the three-month limitation period but not at the earliest opportunity”.

Factually, this seems wrong, or economical with the facts.

In Danninger v Bus Atha Cliath and Deepdrill Developments Ltd. [2007] IEHC, the court recited the following:-

“Leave was sought to commence judicial review proceedings on 23rd May, 2006, approximately six weeks after the formal notification of the of the award of the contract to the notice party.”

- and then ruled on a plea that the Applicant was late, in these terms:-

“I would not hold that time began to run as and from the 3rd January, 2006, when the tender documents were received, because I would regard it as reasonable that legal advice might be obtained in relation thereto. One month seems to me to be more than adequate time in which to seek such advice. Given that there is both an opportunity and, pursuant to O. 84A an obligation, to bring proceedings “at the earliest opportunity”, I would hold that an interim application should have been made shortly thereafter. That interim application would have challenged clause 4.14 of the tender conditions and should have sought interlocutory relief.”

In Danninger the applicant applied for Judicial Review six weeks after losing the tender application process. That was within the three months time limit for applications. The court ruled that time commenced against the applicant not from the ending of the tender process but from the time the applicant knew, or ought to have known, of the grounds upon which it ultimately made its application.

That was a date (as found, by estimate, by the court) to be 3rd February 2006.

That meant that time expired on 3rd May 2006. Thus, 23rd May 2006 the date of the application to court, was twenty days too late. The court however, did not rule that the time had expired for that reason; it ruled it had expired on 3rd February 2006 because the applicant had not applied “at the earliest opportunity”.

Ireland has declared for itself a position of neutrality in selected international conflicts

More importantly, the Constitution of Ireland provides in Article 28(3):

“1° War shall not be declared and the State shall not participate in any war save with the assent of Dáil Éireann.”

Bankrupting the nation aside, it is difficult to know of a more important matter, upon which the Government ought to be restrained, than engaging in a war without the consent of the Dail.

It is alarming therefore to consider what transpired in Dubsky Government of Ireland [2005] IEHC 442

The Applicant applied for Judicial Review of the facilities at Shannon Airport extended by Ireland to the USA for the supply of US armed forces in Afghanistan. He pleaded that these facilities were in breach of Article 28 (3).

The court declined to grant the order sought stating, inter alia,:

“Having regard to the absence of any clear line of authority as to the correct or appropriate legal definition of war, or as to what constitutes participation in any such war, or even as to what consequences flow from the failure to comply with invoked principles of international law on issues of neutrality, it is wholly appropriate that courts should adopt the same highly restrained approach to the question of whether and in what circumstances the executive arm of a government should take decisions relating to war or armed conflict or hostilities of whatever nature.”

Of course, Article 28 (3) is out of date; no State actor in international affairs follows the convention and legal obligation to “declare” war – they just wage it. Nevertheless, as a purely internal Irish affair, to take a hands-off approach to Executive action on such a question, where the Executive can seek the assent of the Dail, but does not, is not in the national interest.

Taxis are good things. As they carry speakers to public debates, for instance, they provide, because of the lack of distraction by traffic, the possibility of reviewing what is to be publicly said.

OK, that’s too sweeping a statement and applies to a limited number of occasions; say, debates on whether God exists or not.

It will not apply to debates on the legitimacy of tight time limits on applications for Judicial Review under Order 84 of the Rules of the Superior Courts, because there are no such debates.

The reliable Law Reform Commission published a paper examining the procedures relating to “ordinary’ Judicial Review and “statutory” Judicial Review, which can be seen HERE.

An examination of procedures, usually, assumes legitimacy.

Of course, there probably are some debates somewhere, but they are not public. My guess is that they take place in Dublin 4 or, possibly, at the top of Henrietta St., in Dublin 7.

The truth is, Judicial Review is a contraption. It’s cobbled together, dictated by circumstances and dubiously cast in the form of a general law.

See HERE for a previous reference by this writer to Irish Judicial Review.

Now, the legal jungle drums tell me that the State itself is aggrieved by the tight time limits in Order 84.

Judgment is awaited in a case where the State itself is seeking Judicial Review of a decision, time having run under Order 84.

A la W. B. Yeats, “And what rough beast, its hour come round at last, slouches towards Bethlehem to be born?”

(The title here is contrived; I am simply seizing on a chance to use the plural of “taxi” and show that there is such a word and such a spelling. Too often people believe, and act accordingly, that the plural of taxi is taxi’s.)

Our Financial Regulator is confident, and has asserted so in public, that he is not at fault in failing to properly regulate the Irish Banks in circumstances where they ultimately needed rescuing by the taxpayers.

For his pains he has been told by (some) elected representatives he ought to resign.

In fact, it is difficult to criticise him. That is not to say he is not open to criticism, just that it is difficult to do so, as was seen in Ryanair Holdings plc v Irish Financial Services Regulatory Authority IEHC.

Ryanair is the largest shareholder in Aer Lingus. The Government is the second largest shareholder. Ryanair discovered Aer Lingus told the Government that it was intent on changing its Heathrow “slots” from Shannon to Belfast. It did not communicate this to Ryanair. In the view of Ryanair this was a case of “market abuse” and a breach of Market Abuse (Directive 2003/6/EC) Regulations 2005 and the Market Abuse Rules and it complained to the Financial Regulator requesting action by it.

The Regulator declined to inform Ryanair what, if anything, it was doing on foot of the complaint.

The court upheld this view of the Regulator.

The court also found the Regulator is not required to make its findings public or give any reasons for its decision.

There would appear to be two consequences to this; there will not be many complaints lodged with the financial Regulator, and, it is difficult to make judgments as to his competence.

Ryanair is not popular. For this writer, it’s enough to remember traveling to Venice and being dropped in Treviso. It was the “arrangement�? for the return flight that left everything to be desired.

Nevertheless, the Bar Council of Ireland should strike a memorial medal to the airline for its services to the legal profession.

Look at its latest litigation outing HERE.

It issued proceedings in the form of a Special Summons and got slapped down because it hadn’t proceeded by way of Judicial Review.

Is it possible that Michael O’Leary has a jaundiced view of Order 84 of the Rules of the Superior Courts as referred to HERE and HERE?

When and where and why did that happen?

Never take your eye off the ball.

The State (the Government) decided to do something. It introduced an Act, the Non-Fatal Offences against the Person Act 1997, in and through the Oireachtas, which was enacted on 19th May 1997.

Section 28 (1) of the Act provided that;

The following common law offences are hereby abolished -
(a) assault and battery,
(b) assault occasioning actual bodily harm,
(c) kidnapping,
(d) false imprisonment.�?

Something happened in Westport on 4th May 1997; consequently a Mr. Grealis was charged with assault contrary to common law.

Something happened in Mulranny on 11th May 1997; consequently Mr. Grealis was charged with assault contrary to common law.

Something happened in Cork on 3rd February 1997; consequently a Mr. Corbett was charged with assault contrary to common law and contrary to Section 42 of the Offences Against the Person Act, 1861 as amended by Section 10 Criminal Justice (Public Order) Act, 1994 (“assault occasioning actual bodily harm�?).

Section 28 (1) of Non-Fatal Offences against the Person Act 1997 came into force on the 19th August 1997. In both Grealis and Corbett, accordingly, it was not in force on the dates on which the alleged offences were committed. It was not in force at the date the summons was issued in Corbett, but was in force on the dates when the three summonses in Grealis were issued.

Mr. Grealis and Mr. Corbett were given leave by the High Court to apply by way of judicial review for an order of Prohibition of the prosecution of the offences alleged against them on the grounds that the Non-Fatal Offences against the Person Act 1997 had abolished the offences with which they were charged.

The High Court agreed and made an order of Prohibition and the Supreme Court affirmed on appeal.

During the proceedings the State cited in its support Section 1 of the Interpretation (Amendment) Act 1997, which reads:

1. – (1) Where an Act of the Oireachtas abolishes, abrogates or otherwise repeals an offence which is an offence at common law, then unless the contrary intention appears, such abolition, abrogation or repeal shall not -

(a) affect the previous operation of the law in relation to the offence so
abolished, abrogated or repealed or any other offence or anything
duly done or suffered thereunder,
(b) affect any penalty, forfeiture or punishment incurred in respect of any
such offence so abolished, abrogated or repealed or any other offence
which was committed before such abolition, abrogation or repeal, or
(c) prejudice or affect any proceedings pending at the time of such abolition, abrogation or repeal in respect of any such offence or any other offence.

(2) Where an Act of the Oireachtas abolishes, abrogates or otherwise repeals an offence which is an offence at common law, then unless the contrary intention appears, any proceedings in respect of any such offence or any other offence committed before such abolition, abrogation or repeal of any such offence at common law may be instituted, continued or enforced and any penalty, forfeiture or punishment in respect of any such offence at common law or any other offence may be imposed and carried out as if such offence at common law had not been abolished, abrogated or otherwise repealed.

(3) This section applies to an offence which is an offence at common law abolished, abrogated or otherwise repealed before or after the passing of this Act.

(4) If, because of any or all of its provisions, this section would, but for the provisions of this subsection, conflict with the constitutional rights of any person, the provisions of this section shall be subject to such limitations as are necessary to secure that they do not so conflict, but shall otherwise be of full force and effect.�?

The Supreme Court held that this could only be read prospectively (into the future) and did not avail the State in its arguments. (The Supreme Court also found that the Act, as so read, was constitutional. It also found that the offence “assault occasioning actual bodily harm” was a common law offence.)

United Kingdom Law

1. The current law relating to judicial review in the UK arose out of a UK Law Commission recommendation for a new procedure for judicial review. The Commission did not envisage a procedural exclusivity for the new procedure. It had in mind the opportunity for declaratory claims on public law issues in plenary proceedings. Its procedure was adopted ultimately by the Supreme Court Act 1981, sections 29, 31 and 43.and Order 53 of the Supreme Court Rules. In due course, Order 53 became a schedule to the Civil Procedure Rules. (SI 3132/1998)

2. When, in O’Reilly v Mackman [1983] 2 AC 237, the House of Lords decided that it was an abuse of the process of the court for a private person to proceed by ordinary procedure seeking vindication of rights claimed under public law against a public authority, the court, by Lord Diplock, indicated that it, too, did not envisage a full procedural exclusivity for the new procedure and specifically mentioned cases involving “mixed�? issues of public and private rights as suitable to be pursued by [plenary proceedings].

3. This view manifested itself in Roy v Kensington, Chelsea and Westminster Family Practitioners Committee. [1992] 1 AC 624. The plaintiff issued plenary proceedings where the defendant asserted he should have gone by judicial review. The court found that either he was an exception to O’Reilly v Mackman or, because his private rights dominated the issues, he was entitled to proceed as he did. This approach has been approved by the UK Law Commission. (Law Commission No. 226 Part III (1994)). Significantly, it states as satisfactory the then current situation requiring an applicant to proceed by Order 53 (judicial review) only where “(a) the challenge is on public law grounds… [and nothing else]… or (b) the litigant does not seek to enforce or defend a completely constituted private law right…�?

4. The retreat from O’Reilly v Mackman is clearly seen in Mercury Ltd. v Director General of Telecommunications [1996] 1 WLR 48. Here, the House of Lords approved the bringing of proceedings by Plenary Summons, seeking a declaration where two parties to a contract had made a reference to the Director under the terms of the contract.
5. O’Reilly v Mackman preceded the introduction of the UK Civil Procedure Rules (“CPR�?). Procedurally, the UK CPR (CPR r. 1.1 (1) and 1.1 (2)), is significant. The overriding objective is to deal with cases justly. This includes dealing with a case so that the parties are on equal footing; in ways proportionate to the importance of the case, and the [relative] financial position of the parties. Order 53 must now be read in that light. This would seem to rule out “procedural exclusivity�? even as attenuated following Roy v Kensington, Chelsea and Westminster Family Practitioners Committee.

6. The UK courts have found a number of grounds for not applying the principle of O’Reilly v Mackman in every case:

a. Where the invalidity is raised by way of defence; Davy v Spelthorne B.C. [1984] AC 264; R v Reading Crown Court, ex p. Hutchinson [1987] QB 384
a. Where there is no objection; Gillick v West Norfolk Area Health Authority [1986] AC 112
b. Where Order 53 procedure is not well suited to the dispute; Mercury Ltd. v Director General of Telecommunications [1996] 1 WLR 48
c. Where the issues arise collaterally in a claim for the infringement of a right of the plaintiff arising under private law; Wandsworth LBC v Winder [1985] AC 461; Roy v Kensington, Chelsea and Westminster Family Practitioners Committee [1992] 1 AC 624

7. In Davy v Spelthorne B.C [1984] AC 264 at 276, Lord Wilberforce expressed the underlying principle as follows:

The principle remains intact that public authorities and public servants are, unless clearly exempted, answerable in the ordinary courts for wrongs done to individuals. But by an extension of remedies and a flexible procedure, it can be said that something resembling a system of public law has been developed. Before the expression “public law�? can be used to deny a subject a right of action in the court of its choice, it must be related to a positive prescription of law, by statute or statutory rules. We have not yet reached the point at which mere characterization of a claim as a claim in public law is sufficient to exclude it from consideration by the ordinary courts: to permit this, would be to create a dual system of law with a rigidity and procedural hardship for plaintiffs which it was the purpose of the recent reforms to remove.

8. In Mercury Ltd. v Director General of Telecommunications, Lord Slynn of Hadley remarked;

[it was] … of particular importance to retain some flexibility, as the precise limits of what is called “public law�? and what is called “private law�? are by no means worked out… It has to be borne in mind that the overriding question is whether the proceedings constitute an abuse of process.

Irish Law

9. The Irish High Court declined, in O’Donnell v Dun Laoghaire C. C. [1991] ILRM 30, to follow O’Reilly v Mackman, and did so before the giving of judgment in Roy v Kensington, Chelsea and Westminster Family Practitioners Committee. The High Court found in O’Donnell v Dun Laoghaire C. C that it was not an abuse of process for a litigant to issue proceedings by way of plenary summons when judicial review might also be available.

10. Irish Judicial Review, like UK Judicial Review, is a revision of procedure for the availability of the old “State-side Orders�?. Those orders were; Certiorari; Mandamus; Prohibition; Quo Warranto.

11. However, the Rules committee of the Irish Superior courts adopted, in Order 84 RSC, (SI 15/1986) the terms of Order 53 of the [UK] Supreme Court Rules. Each of these similar procedures can be said to represent a political vision appropriate to the respective nations.

12. Order 84 RSC extended the reliefs which might be claimed in conjunction with the old State-side orders of Certiorari, Mandamus, Prohibition and Quo Warranto to include declaratory relief and/or claims for damages or injunctive relief.

13. Both Order 53 and Order 84 (Order 84 R. 21 (1)) contain [tight] time (For certiorari, time runs from the date of the “proceeding�? [Order 84 R. 21 (2)]) limits for the issue of challenges on judicial review; applications must be made promptly and not later than 3 months generally or 6 months for certiorari. These are not limitation periods and are described as guidelines. (State (Kelly) v District Justice for Bandon [1947] I.R. 258; R. v Herrod Ex. P. Leeds C.C. [1976] Q.B. 540 at 547; De Roiste v Minister for Defence v [2001] 1 I.R. 190 at 221). Nevertheless, the effect is similar to time limits imposed by statute (Reflected in Order 84 R. 21 (3)) to defeat challenges by judicial review. (Smith v East Elloe R.D.C. [1956] AC 736)

14. There is a discretion in the court to extend the time. That discretion can only be exercised on the presentation of evidence (on affidavit usually) showing why it should be exercised.

15. Rule 26 (5) of Order 84 (RSC), consistent with S. 155 of the Chancery (Ireland) Act 1867 and Order 19 Rule 29 of RSC, makes it clear that declaratory relief (or injunction or damages), although available in Judicial Review, is (are) not particular to it. A plain reading of Order 84 Rule 18 shows little basis for claiming procedural exclusivity for it. That rule permits application for declaratory relief and injunction; it does not enjoin it. This is consistent with the judgments in Byrne v Ireland [1972] IR 241; Pesca Valentia Ltd. v Minister for Fisheries and Forestry [1985] IR 193 and Crotty v An Taoiseach [1987] IR 713.

16. The Rules of the Superior Courts, including Order 84, were introduced by Statutory Instrument 15 of 1986 on 1st October 1986. They were the outcome of the deliberations of the Superior Courts Rules Committee (made with the consent of the Minister for Justice) acting under the provisions of Section 36 of the Courts of Justice Act 1924, Section 68 of the Courts of Justice Act 1936, (as applied by Section 48 of the Courts (Supplemental Provisions) Act 1961) and Section 14 of the Courts (Supplemental Provisions) Act 1961. Previously, the Committee had made rules in 1962. The purpose of and subject matter of Rules of Court as promulgated by the Superior Courts Rules Committee is to provide for practice and procedure and not otherwise.

17. Significantly, Order 53 was codified in a statute, whereas Order 84 remains part only of a Statutory Instrument

18. Consequently, as subordinate legislation, and in the light of Article 15.2.1 of the Constitution of Ireland, Order 84 cannot be the source of a new exclusive procedure limiting the right to challenge administrative acts by plenary proceedings [such as under S. 155 of the Chancery (Ireland) Act 1867]. The ordinary time limit for declaratory actions prescribed by the Statute of Limitations is six years [and it is beyond the power of the Superior Court Rules Committee to prescribe otherwise]; Any argument to the contrary would, in effect, be an argument for a power in the Committee beyond its power to deal with pleading, practice or procedure.

19. Section 28 (8) of the Supreme Court of Judicature (Ireland) Act 1877 provided that the court was empowered to grant interlocutory relief “whenever it was just and convenient to do so�?. Injunctive relief may be either prohibitory or mandatory. Injunctive relief, although available in Judicial Review, is not particular to it.

20. That damages may be claimed in Judicial Review under the provisions of Order 84 of the RSC is not evidence that Order 84 has created in independent cause of action for damages.

21. The Irish courts, while not adopting a principle as broad as CPR r. 1.1 (1), have not been neglectful of the need for flexibility in procedure. In Meskell v CIE [1973] I.R. 121, the Supreme Court indicated that constitutional rights could be enforced even if the claim did not fit within any currently available jurisdiction or procedure, in law or in equity. In Shannon v Ireland [1984] 4 I.R. 343 at 350, the High Court varied the usual rules of procedure to assist in the making of a claim in vindication of a constitutional right. In Riordan v An Taoiseach (No. 2) [1999] 4 I.R. 337, Barrington J. further elucidated the principles to be applied, in favour of the broad jurisdiction of plenary proceedings as opposed to judicial review. Consonant with this view is the fact that breach of a constitutional right is a tort and the provisions of S. 11 of the Statute of Limitations 1957 apply. Breach of EU law, giving rise to a claim in damages, is a tort. and the provisions of S. 11 of the Statute of Limitations 1957 apply.

22. Although Rule 26 (5) of Order 84 (RSC) empowers the court to direct that proceedings commenced by way of judicial review should be pursued by plenary proceedings, there is no corresponding jurisdiction in the court to direct proceedings, commenced by way of plenary summons, be pursued by judicial review and, ipso facto, to apply the rules of judicial review to such proceedings.

23. In The State (Quinn) v Ryan [1965] IR 70 at 122 O’Dalaigh CJ, said:

It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at naught or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of these rights. As a necessary corollary, it follows that no one can with impunity set these rights at naught or circumvent them, and that the courts’ powers in this regard are as ample as the defence of the Constitution requires.

24. In Byrne v Ireland [1972] IR 241 at 281 Walsh J said:

Where the People by the Constitution create rights against the State or impose duties on the State, a remedy to enforce those must be deemed to be also available.

THE VIEWS AND COMMENTS EXPRESSED HEREIN ARE THOSE OF, AND PERSONAL TO, THE WRITER, AND ARE INTENDED FOR GENERAL DISCUSSION PURPOSES ONLY. THEY ARE NOT INTENDED TO BE RELIED UPON BY ANY PARTY. NO REPRESENTATION OR WARRANTY IS GIVEN AS TO THE ACCURACY OR CORRECTNESS OF SAME, NOR ARE THEY REPRESENTED AS CONTAINING (OR AS A SUBSTITUTE FOR) LEGAL ADVICE OR ASSISTANCE. NO LIABILITY WHATSOEVER (WHETHER IN CONTRACT, NEGLIGENCE, NEGLIGENT MISSTATEMENT OR OTHERWISE AT ALL) IS ACCEPTED TO ANY PERSON ARISING OUT OF ANY RELIANCE ON THESE VIEWS.

Massachusetts v EPA

The USA is an amazing place (of extremes). They seem to have an Environmental Protection Agency (“EPA”) like ours unless I am mistaken.

Under the US Clean Air Act, the administrator of the Environmental Protection Agency is authorized to set emission standards for

any air pollutant” from motor vehicles or motor vehicle engines “which in his judgment cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.

The EPA was challenged by the Plaintiffs because it disputed whether it had power to set such emission standards.

The parties were:

Petitioners: the states of California, Connecticut, Illinois, Maine, Massachusetts, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington, the cities of New York, Baltimore and Washington, D.C., the territory of American Samoa, and the organizations Center for Biological Diversity, Center for Food Safety, Conservation Law Foundation, Environmental Advocates, Environmental Defense, Friends of the Earth, Greenpeace, International Center for Technology Assessment, National Environmental Trust, Natural Resources Defense Council, Sierra Club, Union of Concerned Scientists, and U.S. Public Interest Research Group.

Respondents: the Environmental Protection Agency, the Alliance of Automobile Manufacturers, National Automobile Dealers Association, Engine Manufacturers Association, Truck Manufacturers Association, CO2 Litigation Group, Utility Air Regulatory Group, and the states of Michigan, Alaska, Idaho, Kansas, Nebraska, North Dakota, Ohio, South Dakota, Texas, and Utah.

The case turned on questions, essentially of power (“locus standi�? and statutory interpretation), including

1. The standing of the plaintiffs to bring the case to court.

2. Whether the EPA Administrator had authority to regulate carbon dioxide and other air pollutants associated with climate change under the Clean Air Act.

3. Whether the EPA Administrator could decline to issue emission standards for motor vehicles based on policy considerations.

The majority opinion of the US Supreme Court found for the petitioners and recognized they had standing. It found the Clean Air Act did give the EPA the authority to regulate motor vehicle emissions of greenhouse gases. On the third question the Court referred the issue back to the EPA for valid justification, finding the EPA’s current view lacking justification.

In typical form SCALIA J dissented. In his view, regardless of the importance of the issue, the Court should not attempt to second guess the view of the executive agency (EPA) in light of its experience and judgment.

This has something familiar about it.

Meanwhile, for an opinion piece on all this look HERE.

For a sombre review of what is at stake see HERE.

When Marks and Spencer litigate they go for the long haul.

In 1994 they extracted a concession from the British Revenue authorities that their “Teacake�? was a cake and not a biscuit. Tax had been paid on the Teacakes, at the biscuit rate rather than the cake rate, from 1973 to 1995. M & S calculated the difference in the sum of £3.5 million and asked for its refund.

The Revenue said no; it would pay £88,440. Well, that made life easy for the lawyers for M & S; no dilemmas of judgement for them.

M & S took the case to the House of Lords and from there to the European Court of Justice. Now, the ECJ Advocate-General has supported M & S. The British Revenue argued that M & S had passed the tax on to the consumers and were not at a loss of the claimed £3.5 million. To give it to them would be “unjust enrichment�?. The Advocate-General disagreed because the Revenue did not universally apply that principle across the tax code.

Where the Advocate-General goes the ECJ usually follows.

That Teacake is a dagger in the heart of Judicial Review.

In the first instance, the M & S “tax account�? goes back for more than twenty years. Whither the Statute of Limitations?

In the second instance, where is the notion of “administrative certainty�?? One of the mantras justifying the contraints on challenging State action, as applied in Judicial Review, is the alleged and presumed need for certainty in the making of administrative decisions. The notion runs, that it would be intolerable for administrative action to proceed and then be challenged at any time in the future. In Ireland, under Order 84 of the Rules of the Superior Courts, it is incumbent on an applicant that such a challenge be made as soon as possible and not later than 3 months after the impugned decision (or 6 months if seeking Certiorari).

Of course what is really revealed is the unsustainability of the assertion that State action should be beyond challenge (generally) with the passage of time. It should in fact be otherwise; many challenges can be launched only belatedly because the relevant facts are buried in the State bureaucracy and come to light very late.

There is no need for the Chief Justice to look to the State of New York for a disciplinary code for our judges.

He has one already; it’s just not activated. The indefinite intention is that it will be deployed on the creation of a Judicial Council. (What, if not that, is the top table in the Kings Inns?)

In its editorial of 8th December 2007 the Irish Times is confident that legislation will be necessary to underpin the code.

Why the certainty? After all, the full edifice of Judicial Review in Ireland is resting on the provisions of Order 84 of the Rules of the Superior Courts, which Rules are in the form of a Statutory Instrument and are devised by the rules committee of the Superior Courts, an obscure bunch of unelected people. (They wouldn’t think they are obscure, but most people would.) The implications of Order 84 far outweigh the effect of a disciplinary code for judges.

The constitutionality of Order 84 has been questioned in academic writing for the reason, that is, that the civil, property and constitutional rights of citizens cannot be lawfully adjudicated on within the narrow parameters and inadequate legal basis of Order 84 and that, at the very least, primary legislation is required to underpin the legality of Irish Judicial Review. If this is correct, there being no such legislation, Irish Judicial Review is built on foundations of sand. This legitimation crisis is all the more acute in that the Irish Commercial Court (unlike the London Commercial Court) will admit Judicial Review into its list. The Rules of the Commercial Court are of no better provenance than Order 84.

All power is but an unabated nuisance, a barbarous assumption, an aggravated injustice, that is not directed to the common good: all grandour that has not something corresponding to it in personal merit and heroic acts, is a deliberate burlesque, and an insult on common sense and human nature. That which is true, the understanding ratifies: that which is good, the heart owns: all other claims are spurious, vitiated, mischievious, false – fit only for those who are sunk below contempt, or raised above opinion.

William Hazlitt; the Liberal, 1823