The Gazette 1995

GAZETIE

in the exercise of their public law

functions.

Certiorari

is the most popular form of

judicial review.

Walsh

The (State)

Lynch v. Cooney

[1982] IR 367 (a

judicial review case) quoting

Kenny

referred to "this great remedy of

certiorari". Certiorari

is the

appropriate remedy in the public law

domain in the following

circumstances:

• Where is a want or excess of

jurisdiction e.g. no legal authority to

make decision;

• Where there is an error apparent on

the face of the document recording

the decision;

• Where there is disregard of the

essentials of justice e.g. where the

elements of natural or constitutional

justice were ignored in the

procedure followed by the tribunal

or body in question;

• Where bias is demonstrated in the

decision making process;

• Where there is fraud.

The above list is not exhaustive. The

flexibility of

certiorari

and its

capacity for development should

be noted. One our great judges,

Kenny J observed in

The (State)

Healy v. Donoghue

[1976] IR 325

at 364:

"The cases in which this ... order

of [certiorari] may be granted

cannot and should not be limited

by reference to any formula or

final statement of principle, the

strength of this great remedy is its

flexibility."

General Procedure

There are two stages in the procedure

for judicial review. First there is the

application for leave to apply for

judicial review and, where the leave

to apply for judicial review is

granted there is the second stage, the

formal application for judicial review

i.e. the substantive hearing. An

342

Ju..dge Kenny stated that

cases in which certiorari

may be granted should not

be limited by reference to

any formula or final

statement ofprinciple.

application for a declaration or

injunction may also be made by means

of an application for judicial review.

Such relief will be granted if the court

considers it" would be just and

convenient to do

·~O.

"Damages may be

awarded to the applicant for

judicial review where the applicant

has (a) included in the statement in

support of his or her application for

leave, a claim for damages arising

out of any matter to which the

application relates; and (b) the court

is satisfied that if the claim had

been made in a civil action the

applicant would have been awarded

the damages.

With the exception of planning

appeals, an application for leave to

apply for judicial review (the first

stage in the process) by is made by

motion ex-parte, in the High Court.

The procedure is relatively

straightforward grounded upon the

following specimen document:

THE HIGH COURT

JUDICIAL REVIEW

A.B. APPLICANT

and

C.D. RESPONDENT

(a) Applicant's name:

(b) Applicant's address:

(d) Relief sought: for example:

Certiorari,

Declaration, Damages, and such

other relief as this honourable

court shall deem appropriate;

DECEMBER 1995

(e) Grounds upon which such relief

is sought: for example:

The Respondent purported to

discipline the applicant without

allowing or permitting the

applicant to attend the

disciplinary hearing and refused

to allow the applicant to be

represented legally despite

requests to do so;

(f)

Name and registered pl.ace of

business of solicitors for

Applicant:

(g) Applicant's address for service

within the jurisdiction (if acting

in person):

Dated this

day of

Signed:

Applicant/Solicitors

Secondly, an affidavit should

accompany the above statement

verifying the facts relied upon in the

application for leave. Such an

affidavit is set out in same format as

the above document.

necessary in an emergency, a

solicitor/applicant could seek the

relief sought in the house of a High

Court Judge. The statement and

affidavit need not be typed in a

true emergency but normally the

solicitor obtains from the

Central Office of the High Court a

judicial review number before

proceeding and then formally

makes an ex-parte application

normally on a Monday. After leave is

granted (which it normally is if a

person has a

prima facie

case) you

bespeak the order granting leave

and proceed by Notice of Motion

for a date 14 days hence. Normally

the case is adjourned periodically

to allow the opposing party to submit

Statement of Opposition.

Then

a date is fixed for the substantive

hearing.

Further aspects of judicial review may

be dealt with in subsequent issues of

The Gazette

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