The Gazette 1988

GAZETTE

SEPTEMBER 1988

his unexplained delay? Barr J. also

laid some stress on the fact t hat

t he defect was a technical one.

That fact cannot be gainsaid, but

it is also true t hat the quality of the

d e f e c t has never p l a y ed an

impo r t ant part of our criminal law.

If the applicant could point to an

excess of jurisdiction, this has

traditionally been enough fatally to

f l aw a conviction, irrespective of

w h e t h e r t he d e f e ct c o u ld be

considered to be a pure technicality

or not.

And if the Courts take the

technical nature of t he f l aw into

ac coun t, t hen one mi ght ask, wh y

did the Supreme Court not exercise

its discretion to refuse, prohibition

in - to take but one topical

example -

Rainey-v-Delap,

one

of the cases where the existence of

this technical f l aw in t he issuing of

s u c h s u mm o n s es

w a s

f i r st

established? Yet in t hat case it was

never even suggested t hat the

Court wou ld be entitled to exercise

its discretion against t he applicant

on t hat ground.

CHANGES IN JUD I C I AL

REVIEW PRACTICE

Wh e n t aken c umu l a t i v e l y, t he

decisions in

Macklin

and

Solan

s e ems t o e f f e ct a sma ll but

perceptible shift in judicial review

practice. Applications for judicial

review must be made promptly and

relief may be refused whe re this

requirement of 0.84, r.21(1) has not

been comp l i ed w i t h, even whe re

this delay has not prejudiced the

r e s ponden t s. Fu r t he rmo r e, any

applicant w h o is out of time should

provide an explanation for such

delay, at least whe re this issue is

raised by the respondents. This, of

course is more stringent t han the

pre-1986 Rules practice wh i ch held

t hat a person aggrieved by an

ultra

vires

a d m i n i s t r a t i ve a ct w a s

entitled to relief ex

debito

justitiae.

In this respect one can only wonder

h ow cases such as

M. -v- An Bord

Uchtá/a

wo u ld n ow be decided.

In this case the plaintiffs sought a

declaration to the e f f e ct t hat An

Board Uchtála had not comp l i ed

w i t h the consent requirements of

t he Adop t i on Act 1952 prior to

ma k i ng a d o p t i on o r de r s. The

d e c l a r a t o ry p r o c e e d i n gs we re

c omme n c ed some four years

after

t he adop t i on order was first made,

yet a majority of t he Supreme

Court held t hat they were not shut

out f r om ob t a i n i ng declaratory

relief because of such delay and

despite the f act t hat such an order

wou ld clearly prejudice the private

rights of the adoptive parents, if not

the child itself.

The j udgment of

O'Higgins C.J. is instructive:

" O n the (plaintiffs) first return to

Ireland in 1973 they consulted

their solicitors, and a preliminary

letter was wr i t t en on their behalf

to the adoption society on the

28 June 1973. One can well

understand that, f o l l ow i ng this

preliminary step, many enquiries

a nd

i n v e s t i g a t i o ns

w e re

necessary. In particular, t he

plaintiffs were entitled to have

the benefit of legal advice as to

whe t her the provisions of the

Act of 1952 had been observed

and to k n ow wh a t their rights

were before and action of this

nature was launched. In fact,

this action was c omme n c ed in

May, 1974. I cannot accept t hat

in the c i r cums t ances there was

any unreasonable delay."

Such is also the lot of many

prospective applicants for judicial

review. The points of law wh i ch are

raised on such applications are

o f t en technical and complex. Yet

they are n ow required to move

p r omp t ly - wh i c h, as

Macklin's

case illustrates, may mean a period

of less than three mon t hs - or they

may find themselves shut out f r om

applying, even whe re such a short

delay has not caused prejudice to

t h e

r e s p o n d e n t.

t h e se

circumstances, such an applicant

m i g h t be t e m p t e d t o

s eek

declaratory relief by way of plenary

summons, where no such stringent

t ime limits apply. It is true t hat he

ma y l ose h is c a se

t h r o u gh

acquiescence or laches even if he

is not formally statute-barred, but

t h a t is f or t he d e f e n d e nt t o

establish and it will not su f f i ce for

him to s h ow merely t hat t he

plaintiff has not moved promtly.

This is whe re

O'Reilly -v- Mackman

may have a possible relevence. If a

plaintiff can a t t ack an admin-

istrative decision w i t h o ut having to

observe the 0 . 84 time-limits, might

there not be a case for saying t hat

such a plenary action should be

struck out as an abuse of process?.

This, however, runs contrary to the

purpose of n ew Rules. As we have

seen, t hese r e f o rms we re not

d e s i g n ed

t o

p r o v i de

e x t ra

safeguards for the administrative

authorities, but rather to enhance

C O M P A NY

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the accessibility of the Courts to

the individual litigant and to ensure

t hat a good case was not lost

because of the w r o ng choice of

remedy. And quite apart f r om t he

inherent unfairness in compelling

applicants to adhere strictly to such

short time limits, this is yet another

reason wh y the 0 . 84 time-limits

should be liberally construed.

* Gerard Hogan, Lecturer in Law,

Trinity College, Dublin,

Barrister.

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