The Gazette 1988

GAZETTE

SEPTEMBER 1 9 88

parties have been effected either directly or indirectly by the order or instrument sought to be quashed, as in Cussen's case, and where no such event has taken place, as in this case where the private citizen is seeking redress from the executive organ of government, and, failing in that, turning to the judicial organ for remedy." 14. Working Paper No. 9. 1979. 15. High Court. 2 November 1987. 16. [1986] I.R. 317. 17. At pp. 4-5 of the judgment. 18. The decision of Lord Denning in R. -v- Herrod. ex p. Leeds D.C. 119761 Q.B. 540 is often cited as an authority for the proposition that an applicant for judical review may lose on the ground of delay even where he has applied within the prescribed time-limit. But this seems to overlook the fact that Lord Denning's reasoning was, in effect, rejected by the House of Lords on appeal: see [1978] A.C. 403. 19. High Court, 30 January 1984. 20. High Court, 21 July 1988. Note also that in Connors -v- De/ap, High Court, 27 November 1987, Lynch J. referred to the fact that the applicant had delayed some fifteen months before moving the Court for judicial review to challenge his conviction and cited this as a further ground for exercising his discretion against the applicant. However, the Courts will sometimes not be strictly bound by the time-limit and in Ryrne -v- Grey, High Court, 9 October 1987, Hamilton P. was content to extend time in the context of a challenge to the validity of a search warrant where the applicant was a mere thirteen days out of time. 21. In Rainey -v- Delap, Supreme Court, 6 March 1988, Finlay C.J. held that the power conferred on a District Court clerk to issue summonses under s.10(4) of the Petty Sessions (Ireland) Act, 1851 by Rules 29 and 30 of the District Court Rules, 1948, was ultra vires the District Court Rules Committee Section 10(4) had confined the power to receive a complaint and to issue a summons to a Justice of the Peace. The functions of the Justice of the Peace were transferred to the District Justice by the Courts of Justice Act 1924. It was not therefore competent for the Committee to purport to confer these powers on a District Court clerk. The Supreme Court had earlier ruled in Director of Public Prosecutions (Nagle) -v- Flynn, 10 December 1987, that the validity of any particular summons could be raised on an appeal to the Circuit Court, as such appeals were heard de novo.

lawful custody at the time an extension order was served on him under s.30 of the Offences against the State Act 1939 by a Garda Superintendent. The power to extend a period of detention under s.30 be exercised by such an officer but only if he has been authorised in that behalf by a Chief Superin- tendent under s.3 of the 1939 Act. Here the Superintendent had exhibited a standard form circular (which he had filled in) and which merely recited that he had received authority from a Chief Superin- tendent for that purpose. O'Higgins C.J. held that this did not suffice and concluded that the appellant was in unlawful custody at the time he made an incriminating statement, which was the only evidence against him. As this evidence was excluded by reason of a breach of his constit- utional right to liberty, the conviction was accordingly quashed. But cf. the views expressed by Lynch J. in the Connors case, where he said that if an order of certiorari was to issue quashing the conviction by reason of a technical flaw it would "clearly deprive the people of Ireland of the retribution to which they are entitled by reason of the crime committed by the applicant." 24. Supreme Court, 8 March 1988. 25. [1977] I.R. 287. 26. Henchy J. dissented on this ground. He concluded that it would now be unfair to the adoptive parents and the child if the adoption order was now to be declared ultra vires.

FOOTNOTES 1. For an account of these new rules, see Hogan and Morgan, Admin- istrative Law (1986) at pp. 331-362. 2. 119831 2 A.C. 237. 3. Thus, the Ord. 53 procedure does not apply if, for example the plaintiff is required to challenge a public law decision as a condition precedent to establish a private law right: Cocks -v Thanet District Council 11983] 2 A.C. 286. Nor is it applicable to a pure claim for damages (Davy -v- Spelthorne B.C. 11984] A.C. 262) or where the alleged invalidity of an administrative decision is raised by way of defence: Wandsworth L.B.C. -v- Winder 11985] A.C. 461. 4. The Ord. 53 procedure has now been put on a statutory basis by s.31 of the (English) Supreme Court Act, 1981. It may be questioned whether it was intra vires the Superior Court Rules Committee to prescribe what is in effect a limitation period (save that time may be extended for "good reason") for judicial review applications in the absence of specific statutory authorisation. 5. This requirement is contained in 0.84. r.20 of the 1986 Rules. 6. o.84, r.21. The time limit is as short as three months where relief other than certiorari is sought (e.g., mandamus ; 0.84, r.21(1). 7. 0.84, r.20(2)(b). This is contrast to plenary proceedings, where a plaintiff can impeach the validity of an administrative decision by simply alleging the existence of the facts necessary to support his claim. 8. Sir William Wade described Lord Diplock's judgment as an opinion "of notable range and synthesising power": "Procedure and Prerogative in Public Law" (1985) 101 L.Q.R. 180, 186. 9. Professor Jolowicz described O'Reilly -v- Mackman as a "singularly unfortunate step back to the technicalities of a byegone age": "The Forms of Action Disinterred" (1983) C.L.J. 15, 18. Justice for Randon 11947] I.R. 258 and the dicta approving of Kelly in The State (Walsh) -v- Maguire 11979] I.R. 372; The State (Coveney) -v- Special Criminal Court [1982] I.L.R.M. 284 and The State (Furey) -v- Minister for Defence [19881 I.L.R.M. 89. 11. (19881 I.L.R.M. 89. This important case was decided in 1984 (i.e., pre-1986 Rules) but was not reported until this year. 12. [1981 ] I.R. 181. See Horgan, "Natural and Constitutional Justice: Adieu to Laissez-Faire" (1984) 19 Ir.Jur. 309. 13. But as McCarthy J. correctly observed in Furey (11988) I.L.R.M. at 99-100), the all important distinction between the two cases is that: "Cussen's case was, essentially, a proceeding between private parties. This case is not such a proceeding - this case is a claim by the citizen that the State should render him constitutional justice . . Clearly, a distinction is to be drawn in cases where the private rights of third 10. The State (KellyI -v- District

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27. [1977] I.R. at 296.

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22. 11988] I.L.R.M. at 100. 23. The People (Director

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Prosecutions) -v- Parrell 11978] I.R. 13 is just one example among many of where a conviction was quashed by reason of a technical irregularity. Here the Court of Criminal Appeal held the prosecution had failed to prove that the appellent was in

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