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Irish Judicial Review

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 “mixedâ€? 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…â€?

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 (“CPRâ€?). 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 exclusivityâ€? 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 lawâ€? 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 lawâ€? and what is called “private lawâ€? 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 Ordersâ€?. 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 “proceedingâ€? [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 soâ€?. 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.

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