This post is unseemly but necessary. It proposes a resolution for others, rather than the writer.
The new year, conventionally, calls for the turning of a new leaf; what bettter leaf to turn than to rethink the granite face of Order 84 of the Rules of the Superior Courts.
Under Order 84, challenges to public law must be brought as soon as possible. They should not be brought later than 3 months after the triggering of the cause of action where Prohibition, Mandamus or Quo Warranto are sought or later than 6 months after the triggering of the cause of action where Certiorari is sought.
To save face (a granite face), there is provision to apply for extension of time to make the necessary application to court. The chances of getting an extension are vanishingly small.
The effect of this Rule is to favour the State against the citizen.
The justification for this notion (that the State should be favoured) is the supposed need for certainty in public administration. This is a peculiar idea in this context; Prohibition, Mandamus, Quo Warranto or Certiorari do not present opportunity for an appeal. They challenge the legal base of the administrative action, not the correctness of the decision. A judge is not asked in these applications to substitute his/her view for that of the Executive. The judge is asked to check a legal error.
The argument behind Order 84 is not for certainty in administration, but for loyalty to the Executive. The judiciary ought not to profess loyalty in the Executive, particularly where the expectation of loyalty involves condoning legal wrongs, by definition.
The required resolution for the new year is, therefore, for the Bar to commit to the abandonment of the current terms of Order 84. Any member of the Bar on the Rules Committee of the Superior Courts should be asked by his/her colleagues to subscribe to that commitment and to pursue the the reform of Order 84. He/she should likewise lobby any members of the Committee who is not a lawyer to do likewise and, in due course, effect the necessary reform. (As George V. Higgins has noted, judges are people who used to be lawyers).
What I find most interesting is that Quo Warrento and Mandamus are rarely used. However, I see value in retaining and using at least Mandamus where a Regulatory body/organ of the state fails to act.
Let’s take some practical examples: IFSRA, ComReg, Aviation Authority, Competition Authority, Data Protection Authority and other quangos who sit on their hands while markets and undertakings run wild around them (Anglo Irish, Ryanair, BOI & eircom).
JR’ing these bodies is something that can be done with relative ease this weather under Order 63A Rule G and most hit the financial limits. Kelly J would deliver a judgment fairly quickly also.
It seems that the main instruments employed are Certiorari, Prohibition and (not that you mentioned it) declaratory reliefs appearing before the courts.
Is the issue with Order 84 not one of Separation of Powers?
Very interesting post you wrote. Glad I have stumbled upon it. Cheers!