The Gazette 1988

GAZETTE

SEPTEMBER 1988

his unexplained delay? Barr J. also laid some stress on the fact t hat t he defect was a technical one. That fact cannot be gainsaid, but it is also true t hat the quality of the d e f e c t has never p l a y ed an impo r t ant part of our criminal law. If the applicant could point to an excess of jurisdiction, this has traditionally been enough fatally to f l aw a conviction, irrespective of w h e t h e r t he d e f e ct c o u ld be considered to be a pure technicality or not. 23 And if the Courts take the technical nature of t he f l aw into ac coun t, t hen one mi ght ask, wh y did the Supreme Court not exercise its discretion to refuse, prohibition in - to take but one topical example - Rainey-v-Delap, 2 * one of the cases where the existence of this technical f l aw in t he issuing of s u c h s u mm o n s es w a s f i r st established? Yet in t hat case it was never even suggested t hat the Court wou ld be entitled to exercise its discretion against t he applicant on t hat ground. CHANGES IN JUD I C I AL REVIEW PRACTICE Wh e n t aken c umu l a t i v e l y, t he decisions in Macklin and Solan s e ems t o e f f e ct a sma ll but perceptible shift in judicial review practice. Applications for judicial review must be made promptly and relief may be refused whe re this requirement of 0.84, r.21(1) has not been comp l i ed w i t h, even whe re this delay has not prejudiced the r e s ponden t s. Fu r t he rmo r e, any applicant w h o is out of time should provide an explanation for such delay, at least whe re this issue is raised by the respondents. This, of course is more stringent t han the pre-1986 Rules practice wh i ch held t hat a person aggrieved by an ultra vires a d m i n i s t r a t i ve a ct w a s entitled to relief ex debito justitiae. In this respect one can only wonder h ow cases such as M. -v- An Bord Uchtá/a 25 wo u ld n ow be decided. In this case the plaintiffs sought a declaration to the e f f e ct t hat An Board Uchtála had not comp l i ed w i t h the consent requirements of t he Adop t i on Act 1952 prior to ma k i ng a d o p t i on o r de r s. The d e c l a r a t o ry p r o c e e d i n gs we re c omme n c ed some four years after t he adop t i on order was first made, yet a majority of t he Supreme Court held t hat they were not shut out f r om ob t a i n i ng declaratory

relief because of such delay and despite the f act t hat such an order wou ld clearly prejudice the private rights of the adoptive parents, if not the child itself. 26 The j udgment of O'Higgins C.J. is instructive: " O n the (plaintiffs) first return to Ireland in 1973 they consulted their solicitors, and a preliminary letter was wr i t t en on their behalf to the adoption society on the 28 June 1973. One can well understand that, f o l l ow i ng this preliminary step, many enquiries a nd i n v e s t i g a t i o ns w e re necessary. In particular, t he plaintiffs were entitled to have the benefit of legal advice as to whe t her the provisions of the Act of 1952 had been observed and to k n ow wh a t their rights were before and action of this nature was launched. In fact, this action was c omme n c ed in May, 1974. I cannot accept t hat in the c i r cums t ances there was any unreasonable delay." 27 Such is also the lot of many prospective applicants for judicial review. The points of law wh i ch are raised on such applications are o f t en technical and complex. Yet they are n ow required to move p r omp t ly - wh i c h, as Macklin's case illustrates, may mean a period of less than three mon t hs - or they may find themselves shut out f r om applying, even whe re such a short delay has not caused prejudice to t h e r e s p o n d e n t. In t h e se circumstances, such an applicant m i g h t be t e m p t e d t o s eek declaratory relief by way of plenary summons, where no such stringent t ime limits apply. It is true t hat he ma y l ose h is c a se t h r o u gh acquiescence or laches even if he is not formally statute-barred, but t h a t is f or t he d e f e n d e nt t o establish and it will not su f f i ce for him to s h ow merely t hat t he plaintiff has not moved promtly. This is whe re O'Reilly -v- Mackman may have a possible relevence. If a plaintiff can a t t ack an admin- istrative decision w i t h o ut having to observe the 0 . 84 time-limits, might there not be a case for saying t hat such a plenary action should be struck out as an abuse of process?. This, however, runs contrary to the purpose of n ew Rules. As we have seen, t hese r e f o rms we re not d e s i g n ed t o p r o v i de e x t ra safeguards for the administrative authorities, but rather to enhance

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the accessibility of the Courts to the individual litigant and to ensure t hat a good case was not lost because of the w r o ng choice of remedy. And quite apart f r om t he inherent unfairness in compelling applicants to adhere strictly to such short time limits, this is yet another reason wh y the 0 . 84 time-limits should be liberally construed.

* Gerard Hogan, Lecturer in Law, Trinity College, Dublin, Barrister.

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