Administrative Law

QUESTION:

The principal remedies available by way of judicial review are discretionary in nature. With reference to the relevant case law, give a concise account of the factors which the High Court may take into consideration when deciding if, in its discretion, it should grant the remedy sought in any particular case.

ANSWER:

Introduction

Judicial review is the doctrine under which legislative and executive actions are subject to review (and possible invalidation) by the judiciary. The principal remedies by way of this doctrine are certiorari (quashing a decision), mandamus (order), prohibition (injunction), of which these are the most common, certiorari topping that list, and, under Order 84 of the Superior Courts, three further remedies are available, these being declaration, injunction and quo warranto, but they are uncommon in practice.

The discretionary nature of these remedies is a much-clouded area of the law. Though, the court takes into consideration, broadly, four factors when deciding if, in its discretion, it should grant the remedy sought in any particular case. These are, (1) an absence of candour or good faith, (2) refusal of relief where it would serve no practical purpose, (3) delay and (4) the availability of alternative remedies. Each of these will be looked at in turn and analyzed critically, subsequent to a brief contextual account of the discretionary nature of such remedies.

The Discretionary Nature of Remedies – What Does This Actually Mean?

Discretion, in this or any other area of law, should not to be confused with arbitrariness. It (discretion) must be exercised in accordance with settled principles. And so, in relation, there is a fairly limited number of grounds on which a court (HCt or SCt) might refuse relief in a judicial review application on this discretionary ground.

Discretion can sometimes lead to the opposite result of what might be sought, where a court might use its discretion to grant a remedy even though not fully convinced that the applicant has made out a formal entitlement to it. This is illustrated in Noonan (aka Hoban) v DPP [2008] 1 IR 445, a delay case, where the SCt granted prohibition of a criminal trial in light of all the circumstances, although not convinced that the applicant had shown that she would be prejudiced if the trial were to proceed.

When it comes to deciding if a court should exercise its discretionary power to refuse relief by way of judicial review, a distinction is sometimes drawn between cases where a remedy is due ex debito justitiae and those where it is not.“Ex debitio justitiae” means ‘as a matter of right’. The idea is that if the matter of which applicant complains is something which vitally affects their fundamental rights or interests, it should be granted once the court is satisfied that applicant has shown that, on legal grounds, he is entitled to it. In any event, since the De Roiste case, it is clear that even though a  emedy may be due ex debito justitiae it can still be discretionary. But having said all of this, it is very rare that a court will refuse a remedy on a discretionary ground, unless one of the said factors is present. We shall look at these in turn.

1. Absence of Candour or Good Faith

This applies particularly at the ‘leave stage’ which is normally ex parte. The leading authority is Adams v DPP [2001] 2 ILRM 401 where Kelly J (HCt) stressed the need for the utmost good faith at this leave stage. The same was said by the SCt in Cork Corporation v O’Connell [1985] ILRM 505  where it was stipulated that utmost good faith and full disclosure of all the material facts are required of parties in JR proceedings. The matter was also addressed in McDonagh v Watkin [2013] IEHC 582 – This involved a challenge to the decision of a District Court judge to issue a bench warrant and then to refuse an application to cancel it. An important development had taken place before the judicial review proceedings were issued but no reference was made to that development in the grounding papers nor, it appears, was the leave judge informed of it. In the HCt, Kearns P. refused all reliefs sought. While he said that he was not making a finding of mala fides (bad faith) on the part of the applicant’s legal advisers, he took the opportunity to restate the absolute necessity for the utmost good faith (uberrima fides) and candour in all ex parte applications. He confirmed that the absence of candour can result in leave being refused or in relief being refused when the case came on for full hearing. Referring specifically to judicial review, he said there is thus a heavy onus on applicants when seeking to invoke this jurisdiction to place all material and relevant facts before the court at the ex parte leave stage.

From the cases above, and in light of the most recent decision of McDonagh v Watkins, the requirement is not one of good faith, but instead one of utmost good faith. 

2. Refusal or Relief Where It Would Serve No Practical Purpose

The courts have held that relief may be refused where the applicant would derive no practical benefit from it. This can happen in relation to criminal proceedings where, say, the applicant is seeking to quash a decision remanding him in custody for a short period or to issue a search warrant, but by the time the application comes before the court, the remand period has long expired or the search warrant may have been executed. However, in cases like this, the court may be willing to grant a declaration.

There are many cases on the matter, including H v DPP [1994] 2 IR 589 – where Barron J refused to grant an order of mandamus compelling the DPP to reconsider a decision he had taken five ears previously not to prosecute certain members of the applicant’s family in respect of alleged sexual offences against her son, since he was not persuaded that it would have been in the infant’s interests to pursue this matter, particularly after such a lapse of time. Two other leading cases are State (Shannon Atlantic Fisheries Ltd.) v McPolin [1976] IR 93 and Byrne v Grey [1988] IR 31, but they are only noted here.

3. Delay

 The rule was previously found under Ord. 84 r. 21(1) of the Rules of the Superior Courts 1986 providing that all applications for JR should be “made promptly”. Now this requirement has been put on a statutory footing in S.I. 691/2011. The requirements being, an application should be made within three months from the date which grounds arose, though, the HCt may extend this if (1) there is a sufficient and good reason to do so, (2) failure to comply was outside the individual’s control, and (3) If (1) exists, the court must however consider the impact on the respondent and any 3rd party.

Prior to the 1986 Rules, the test was one of prejudice and the time period was ‘6 months’ and “promptly’, though time ran irrespective of knowledge of the fact. The new rules have thus proved controversial and, the new rule is currently subject to constitutional challenge in **Murphy v Ireland as it is claimed the new grounds are impossibly narrow and therefore a breach of an applicants constitutional right to a fair trial, and therefore a breach of Art. 6 ECHR.

 4. Availability of Alternative Remedies

The fifth criterion in G v DPP is problematic in areas such as planning, where various avenues of appeal are provided by statute. In criminal proceedings too, the choice is usually between appeal and judicial review. The traditional view appears to have been that certiorari would not lie where an appeal was pending, though the legal availability of an appeal, so long as it was not invoked, does not appear to have been fatal. Modern authorities are decidedly more flexible as see in ***State (Abenglen Properties) v Dublin Corporation [1984] IR 381 and Nevin v Crowley [2001] 1 IR 113, Nevin holding that when a trial, whether summary or indictment, had been conducted in such a way as to be in breach of a fundamental principles of constitutional justice, the mere existence of a right of appeal should not be an obstacle to the grant of certiorari. Here, a sentence had been imposed without affording the applicant or his solicitors an opportunity to be heard. Although he had initiated an appeal to the Circuit Court, the HCt, per O’Sullivan J., granted an order of certiorari quashing the sentence. The SCt upheld the HCt decision, and declined to remit the matter to the District Court. Other cases deal with this matter also, ***Buckley v Kirby [2000] 3 IR 431, ***State (Roche) v Delap [1980] IR 170, and McGoldrick.

Conclusion

In light of these authorities, judicial review may be sought despite the availability or the initiation of an appeal when there are fundamental issues of justice at stake. Certiorari is always a discretionary remedy and is seldom appropriate for the correction of minor flaws. Perhaps the best summary of the discretionary nature of the remedies is given by Hederman J in Sweeney v Brophy where he said that not every “routine mishap” that may befall a trial will justify the grant of certiorari. Appeal is the appropriate remedy in such cases. 

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