478 / 822
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
in
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
In
Director of Public Prosecutions -
v- Mack/in
15
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
16
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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EXPERT
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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."
17
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.
18
This may be
contrasted w i th the approach of
the O'Hanlon J. in
The State
(Director of Public Prosecutions) -
v- Ó hUadaighJ
9
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
20
is along similar lines. Here
the applicant sought to quash a
2 38