477 / 822
GAZETTE
SEPTEMBER 1988
Time limits and judicial review
applications
The introduction of the new judiciel review procedure prescribed
by 0.84 of the Rules of the Superior Courts, 1986, hss so fer
proceeded without too much difficulty.
1
Certsinly, the Irish courts
have thus far shown no inclination to follow the example of the
House of Lords in
O'Reilly
-v- Mackman,
2
which held that, subject
to such exceptions as might be judicially created on a case by case
basis,
3
the (equivalent) provisions of Ord. 53 of the English Rules
of the Supreme Court, 1977,
4
prescribed an exclusive procedure
by which the validity of any administrative decision could be
challenged.
This meant that the applicants in
t hat case - who were prisoners
challenging the validity of certain
disciplinary punishments - could
not proceed by plenary summons in
the usual manner. They were
required to challenge this decision
by way of judicial review, as
o t he rw i se they could by-pass the
in-built safeguards (the requirement
t o seek leave,
5
the six mon t hs
time
6
limit and the obligation to
put one's case on affidavit
7
wh en
commenc i ng proceedings). The
House of Lords proceeded to strike
out the proceedings as an abuse of
process. While it is impossible to
take issue w i t h the internal logic of
Lord D i p l o c k 's j u d gme n t ,
8
t h is
decision has wreaked havoc ever
since. The whole object of these
reforms - both in Ireland and in
Britain - was to ease the path of
the public law litigant, and to
en s u re
t h a t
a
me r i t o r i o us
application was not lost by reason
of the wr ong choice of remedy.
However, in Britain very many
litigants have f ound t hat their
applications for judicial review have
been struck out by reason of the
w r ong choice of remedy in the
wake of
O'Reilly -v- Mackman
than
ever occurred
prior
to 1977 when
the procedural reforms, designed to
avoid precisely this result, came
into force. As a result, many British
c omme n t a t o rs have wo n d e r ed
whe t her the cure has been worse
than the disease.
9
The Irish Courts have, very
sensibly, shown no inclination to
follow this line of authority. Yet
there are some decisions at High
Court level on the issue of time
limits and applications for judicial
review wh i ch may well inexorably
By
Gerard Hogan,
Lecturer in Lew*
lead to decisions such as
O'Reilly
-v- Mackman.
Order 84, rule 21(1)
provides as follows:
" A n app l i ca t i on for judicial
review shall be made promptly
and in any event w i t h in three
mon t hs f r om the date wh en
grounds for the application first
arose, or six months where the
relief sought is
certiorari,
unless
the Court considers that there is
good reason for extending the
pe r i od
w i t h i n
w h i c h
t he
application shall be made."
It is to be noted that this represents
a change f r om the 1962 Rules,
0.84, r.10 of wh i ch provided:
" N o order of
certiorari
shall be
made to remove any judgment,
order, c o n v i c t i on or o t h er
proceeding had or made by or
before any justice of the District
Court or judge of the Circuit
Court unless such order of
certiorari
be applied for w i t h in
six calendar mon t hs next after
such judgment, order, conviction
or other proceedings shall be so
had or made."
The Courts, however, did not
appear to insist on this strict time
limit in criminal cases.
10
There was
no fixed time limit in any other case,
so t h a t
certiorari
lay in t he
discretion of the Court. In one
notable case,
The State (Furey) -v-
Minister
for
Defence,"
t he
Supreme Court quashed a decision
to dismiss the applicant f r om the
Defence Forces, even t hough the
application was made some four
years after the date of dismissal.
Furey
r e - e s t a b l i s h ed
t he
fundamental principle that a person
p r e j u d i c ed
by
ultra
vires
administrative action was entitled
to relief
ex debito justitiae,
unless
he was precluded by his own
conduct f r om doing so, or where
this wou ld be unfair to other
parties. In
The State fCussen) -v-
BrennanJ
2
for example,
t he
applicant was denied
certiorari
to
q u a sh an a p p o i n t me nt t o a
university chair on the grounds of
delay. A l t hough the delay in this
case was a mere four months, the
Supreme Court held t hat t he
applicant had by his conduct led
the other parties to believe that he
accepted the validity of the original
decision. They had altered their
positions as a result, so that it
wou ld now be unfair to t hem to
grant the relief sought by the
applicant.
13
LAW REFORM COMMISSION
RECOMMENDATIONS
It was w i t h this case-law in mind,
therefore, that the Law Reform
Commission recommended in their
1979 Wo r k i ng Paper,
Judicial
Review of Administrative
Action:
The Problem of Remedies,
14
that
there should be no strict time-limits
on t he p r e s e n t a t i on of an
application for review, but that the
" doc t r i ne of laches (i.e. acquie-
scence, negligence or undue delay)
should continue to apply". The
1986 Rules run somewhat counter
fo the spirit of these recom-
237