The Gazette 1988

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.

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-

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

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

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

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