The Gazette 1988

GAZETTE

SEPTEMBER 1988

mendations in prescribing a fairly

strict time-limit in the new judicial

review procedure. There are t wo

fundamental difficulties w i th such

a strict time-limit. First, it is out of

line w i t h the spirit of the

Furey

decision and the whole object of

the new reforms. It was never the

intention of the Supreme Court in

t hat case, or of Law Reform

Commission, that an applicant for

judicial review w i t h a meritorious

case should find himself shut out

by reason of strict new time limits.

The new Rules were designed to

help - not to hinder - access to

the courts as far as applications for

judicial review were concerned.

The second reason raises the

spectre of

O'Reilly -v- Mackman.

If,

for example, a l i t i gant seeks

declaratory relief by way of judicial

r e v i ew

and f i n ds t h a t

his

application is out of time, wh at

would be to stop him proceeding by

way of plenary summons? He has

six years to commence his action

(subject always to the doctrine of

laches where his delay is prejudicial

t o

t he

d e f e n d a n ts

t he

proceedings), nor does he have to

comply w i th the requirements as to

seeking leave or putting his case on

affidavit. But if he can by-pass

these requirements w i t h impunity,

is he n ot u n d e r m i n i ng

t he

safeguards in the judicial review

process? And in that case wou ld

there not be much to be said for the

O'Reilly -v- Mackman

approach and

ordering that the proceedings be

struck out as an abuse of process?

In o t h er wo r d s, if t he 0 . 8 4

requirements as to time-limits,

leave and so on b e c ome so

restrictive as to encourage litigants

to by-pass t hem by issuing plenary

p r o c e e d i n g s, t h en t h is

w i ll

inexorably lead to the adaptation by

the Irish Courts of

O'Reilly -v-

Mackman

principles in order to stop

this circumvention of the 0 . 84

procedures. This is way decisions

on the 0 . 84 time-limits are of such

immediate interest.

RECENT CASE LAW

Director of Public Prosecutions -

v- Mack/in

the accused, Ellen

Whelehan and James Whelehan,

pleaded guilty to several betting

offences. The respondent District

Justice agreed - despite protests

from the solicitor for the Director of

Public Prosecutions - to deal w i th

the matter by finding each of the

accused guilty on one summons

and by taking the remainder into

account. This occured in March

1987, but it was only some six

mon t hs later that the Director

moved for an application for judical

review.

Lar-dner J. agreed t h at t he

respondent District Justice had

erred in law in adopting the course

that he did. The Supreme Court had

held in the

Director

of Public

Prosecutions

-v- Grey

that the

general words of s.8 of the Criminal

Justice Act 1951 (which allows the

District Jus t i ce to take other

offences into account where the

accused pleads guilty to such

offences) could not apply to excise

and betting penalities, as a special

code for such offences had been

prescribed by the Excise Man-

agement Act 1827. It followed,

therefore, that the order made by

the District Justice would, in the

ordinary course of events, be liable

to be quashed.

However, Lardner J. was of the

opinion t hat the Director had

delayed unduly and refused the

relief sought. The Director had, in

e f f e c t , s o u g ht an o r der of

mandamus

in addition to

certiorari

against the District Justice but the

judge found that:

" T h e application was made

outside the three mon th period

provided for in 0.84, r.21(1) and

that it was not made promptly.

I also find that there is no

evidence before me of any good

r ea s on f or e x t e n d i ng t h i s

period . . .

I am (also) not

disposed to make an order for

certiorari

wh i ch would quash the

orders of the District Justice as

this wou ld not advance the

cause of justice. In all the

Dr Keith W Snape

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circumstances, the application

for

certiorari

fails because it was

made promptly. There is no

explanation why it was not

made promptly after the 20

March 1987 and long before 9

September 1987."

Here we see the change wh i ch the

0 . 84 time-limits seem to have

brought about. The Director is

p r e c l u d ed in t h i s case f r om

o b t a i n i ng orders qua s h i ng an

admi t t ed ly

ultra vires

decision

because he did not apply promptly,

even though there is no suggestion

that this delay was, as such,

prejudical to the notice parties. It is

also wo r th noting that the Director

had applied - in case of the

certiorari

application -

with

the six

mon th time-limit.

This may be

contrasted w i th the approach of

the O'Hanlon J. in

The State

(Director of Public Prosecutions) -

v- Ó hUadaighJ

In that case the

respondent District Justice had

convicted the accused of certain

indictable offences wh i ch were

capable of being tried summarily.

However, the Director had not

given his consent to summary trial

under the Criminal Justice Act

1951, and O'Hanlon J. had little

difficulty in concluding that the

convictions were in excess of

j u r i sd i c t i on. The no t i ce party,

however, contended that

certiorari

should not issue as he had now

served several mo n t hs of his

s e n t e n ce and t h a t he was

prejudiced by a delay of more than

four mon t hs on the part of the

Director. While the Director in that

case admittedly sought to explain

the delay (unlike the

Macklin

case)

the fact remains that O'Hanlon J.

was not prepared to allow a plea of

delay to defeat an application to

q u a sh

o r de rs

w h i c h

we re

manifestly w i t h o ut jurisdiction.

Moreover, the notice party in that

case was clearly affected by the

delay in that he had served a

substantial part of his sentence.

The notice parties in

Macklin

suffered no such prejudice, yet

were able to resist, the application

for judicial review by reason of the

fact that the Director had not

moved promptly.

D.P.P. -v- SOLAN

The j udgment of Barr J. in

Solan -

v- Director

of Public

Prosecut-

ions

is along similar lines. Here

the applicant sought to quash a

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