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FOOTNOTES
1. For an account of these new rules,
see Hogan and Morgan,
Admin-
istrative Law
(1986) at pp. 331-362.
2. 119831 2 A.C. 237.
3. Thus, the Ord. 53 procedure does
not apply if, for example the plaintiff
is required to challenge a public law
decision as a condition precedent to
establish a private law right:
Cocks
-v
Thanet District Council
11983] 2
A.C. 286. Nor is it applicable to a
pure claim for damages
(Davy -v-
Spelthorne B.C.
11984] A.C. 262) or
where the alleged invalidity of an
administrative decision is raised by
way of defence:
Wandsworth
L.B.C.
-v- Winder
11985] A.C. 461.
4. The Ord. 53 procedure has now been
put on a statutory basis by s.31 of
the (English) Supreme Court Act,
1981. It may be questioned whether
it was
intra vires
the Superior Court
Rules Committee to prescribe what
is in effect a limitation period (save
that time may be extended for "good
reason") for judicial review
applications in the absence of
specific statutory authorisation.
5. This requirement is contained in
0.84. r.20 of the 1986 Rules.
6. o.84, r.21. The time limit is as short
as three months where relief other
than
certiorari
is sought (e.g.,
mandamus
; 0.84, r.21(1).
7. 0.84, r.20(2)(b). This is contrast to
plenary proceedings, where a
plaintiff can impeach the validity of
an administrative decision by simply
alleging the existence of the facts
necessary to support his claim.
8. Sir William Wade described Lord
Diplock's judgment as an opinion "of
notable range and synthesising
power": "Procedure and Prerogative
in Public Law" (1985) 101
L.Q.R.
180, 186.
9. Professor Jolowicz described
O'Reilly
-v-
Mackman
as a
"singularly unfortunate step back to
the technicalities of a byegone age":
"The Forms of Action Disinterred"
(1983)
C.L.J.
15, 18.
10.
The State (KellyI -v- District
Justice
for Randon
11947] I.R. 258 and the
dicta approving of
Kelly
in
The State
(Walsh) -v- Maguire
11979] I.R. 372;
The State (Coveney)
-v-
Special
Criminal Court
[1982] I.L.R.M. 284
and
The State (Furey) -v- Minister for
Defence
[19881 I.L.R.M. 89.
11. (19881 I.L.R.M. 89. This important
case was decided in 1984 (i.e.,
pre-1986 Rules) but was not reported
until this year.
12. [1981 ] I.R. 181. See Horgan, "Natural
and Constitutional Justice:
Adieu
to
Laissez-Faire"
(1984) 19
Ir.Jur.
309.
13. But as McCarthy J. correctly
observed in
Furey
(11988) I.L.R.M. at
99-100), the all important distinction
between the two cases is that:
"Cussen's
case was, essentially, a
proceeding between private parties.
This case is not such a proceeding
- this case is a claim by the citizen
that the State should render him
constitutional justice . . Clearly, a
distinction is to be drawn in cases
where the private rights of third
parties have been effected either
directly or indirectly by the order or
instrument sought to be quashed, as
in
Cussen's
case, and where no such
event has taken place, as in this case
where the private citizen is seeking
redress from the executive organ of
government, and, failing in that,
turning to the judicial organ for
remedy."
14. Working Paper No. 9. 1979.
15. High Court. 2 November 1987.
16. [1986] I.R. 317.
17. At pp. 4-5 of the judgment.
18. The decision of Lord Denning in
R.
-v- Herrod. ex p. Leeds D.C.
119761
Q.B. 540 is often cited as an
authority for the proposition that an
applicant for judical review may lose
on the ground of delay
even
where
he has applied
within
the prescribed
time-limit. But this seems to overlook
the fact that Lord Denning's
reasoning was, in effect, rejected by
the House of Lords on appeal: see
[1978] A.C. 403.
19. High Court, 30 January 1984.
20. High Court, 21 July 1988. Note also
that in
Connors -v- De/ap,
High
Court, 27 November 1987, Lynch J.
referred to the fact that the applicant
had delayed some fifteen months
before moving the Court for judicial
review to challenge his conviction
and cited this as a further ground for
exercising his discretion against the
applicant. However, the Courts will
sometimes not be strictly bound by
the time-limit and in
Ryrne -v- Grey,
High Court, 9 October 1987,
Hamilton P. was content to extend
time in the context of a challenge to
the validity of a search warrant
where the applicant was a mere
thirteen days out of time.
21. In
Rainey -v- Delap,
Supreme Court,
6 March 1988, Finlay C.J. held that
the power conferred on a District
Court clerk to issue summonses
under s.10(4) of the Petty Sessions
(Ireland) Act, 1851 by Rules 29 and
30 of the District Court Rules, 1948,
was
ultra vires
the District Court
Rules Committee Section 10(4) had
confined the power to receive a
complaint and to issue a summons
to a Justice of the Peace. The
functions of the Justice of the Peace
were transferred to the District
Justice by the Courts of Justice Act
1924. It was not therefore
competent for the Committee to
purport to confer these powers on a
District Court clerk. The Supreme
Court had earlier ruled in
Director of
Public Prosecutions (Nagle) -v- Flynn,
10 December 1987, that the validity
of any particular summons could be
raised on an appeal to the Circuit
Court, as such appeals were heard
de novo.
22.
11988] I.L.R.M. at 100.
23.
The People
(Director
of
Public
Prosecutions)
-v- Parrell
11978] I.R.
13 is just one example among many
of where a conviction was quashed
by reason of a technical irregularity.
Here the Court of Criminal Appeal
held the prosecution had failed to
prove that the appellent was in
lawful custody at the time an
extension order was served on him
under s.30 of the Offences against
the State Act 1939 by a Garda
Superintendent. The power to
extend a period of detention under
s.30 be exercised by such an officer
but only if he has been authorised in
that behalf by a Chief Superin-
tendent under s.3 of the 1939 Act.
Here the Superintendent had
exhibited a standard form circular
(which he had filled in) and which
merely recited that he had received
authority from a Chief Superin-
tendent for that purpose. O'Higgins
C.J. held that this did not suffice and
concluded that the appellant was in
unlawful custody at the time he
made an incriminating statement,
which was the only evidence against
him. As this evidence was excluded
by reason of a breach of his constit-
utional right to liberty, the conviction
was accordingly quashed. But cf. the
views expressed by Lynch J. in the
Connors
case, where he said that if
an order of
certiorari
was to issue
quashing the conviction by reason of
a technical flaw it would "clearly
deprive the people of Ireland of the
retribution to which they are entitled
by reason of the crime committed by
the applicant."
24. Supreme Court, 8 March 1988.
25. [1977] I.R. 287.
26. Henchy J. dissented on this ground.
He concluded that it would now be
unfair to the adoptive parents and
the child if the adoption order was
now to be declared
ultra vires.
27.
[1977] I.R. at 296.
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