Judicial review of public decisions
The High Court has a power or "jurisdiction" called "judicial review". Judicial review is a way for the High Court to supervise the lower courts, tribunals and other administrative bodies to ensure that they make their decisions properly and in accordance with the law. Judicial review is primarily concerned with the decision-making process rather than with the substance of the decision. There is, however, a limited scope for review of the substance of a decision as well.
Judicial review is divided into two main categories:
- Conventional judicial review: Procedure governing conventional judicial review is to be found in Order 84 of the Rules of the Superior Courts.
- Statutory judicial review: Specialised statutory schemes of judicial review relating to specific areas of public decision-making which have been singled out by the Oireachtas as warranting specialised schemes because of the policy concerns involved. Statutory schemes and the procedure involved are covered by legislation specific to that area. Statutory schemes apply to such areas as asylum, pollution control, planning and the takeover of companies.
Judicial review of public decisions
Public decisions made by administrative bodies and the lower courts may be judicially reviewed by the High Court. In a judicial review, generally the court is not concerned with the merits of the decision but rather with the lawfulness of the decision-making process, that is, how the decision was made and the fairness of it.
Some examples of public decisions include:
- Decisions of the District and Circuit Courts
- Inquest verdicts
- Decisions of tribunals
- Deductions from army pensions
- Discharge of a member of the defence forces
- Disqualification from receiving social welfare payments
- Refusals of an Irish passport, marriage certificate, or visa
- Decisions to deport asylum-seekers
- Decisions of An Bord Pleanála relating to planning permission
- Decisions of Government bodies that require an Environmental Impact Assessment and/or an Integrated Pollution Prevention and Control (IPPC) licence.
- Decisions of the Legal Aid Board and the Law Society.
- Decisions of a public administrative body relating to the environment.
The basic principles of public decision-making are:
- The decision-maker must have authority to make the decision that affects you. If the decision-maker has the authority to make the decision, it must not go beyond the limits of its authority.
- You are entitled to fair procedures in how the decision is reached. This means that the decision-maker must not be biased and the decision-maker must give you a fair hearing. You must be given an adequate opportunity to present your case. You must be informed of the matter and you must be given a chance to comment on the material put forward by the other side.
- The decision maker must comply with all legal requirements governing the decision and its making.
If the decision-maker does not have authority or does not give you fair procedure, you may bring judicial review proceedings in the High Court to challenge the decision. You must show that you have "sufficient interest" in the proceedings, that is, that you were affected in some way by the decision you are challenging. You must also show that you have an arguable case, that is, that your case has grounds.
The High Court will examine the decision and how it was reached and will decide whether or not it was unconstitutional or illegal. The High Court may then quash or cancel the decision – by issuing an order known as certiorari. The High Court can also order a decision maker, who is obliged to make a decision but has failed or refused to do so, to actually make the decision – this is known as an order of mandamus. An order of prohibition may also be granted in appropriate circumstances – i.e. an order prohibiting a decision maker from making a decision. Other orders that are available include declarations, injunctions of an interim, interlocutory or permanent nature, or an award of damages.
Judicial review procedure
Judicial review is primarily concerned with the procedural legality of the decision but does provide for a limited review of the merits of the decision. A decision of an administrative body may be set aside on the basis that it is unreasonable or irrational or possibly disproportionate.
Conventional judicial review procedure is governed by Order 84 of the Rules of the Superior Courts.
The first step in the judicial review procedure involves the mandatory “leave stage”. At this stage an application for leave to bring judicial review proceedings must first be made. The leave stage is used to identify and filter out, at an early stage, claims which may be trivial or without merit. At the leave stage you must show that you have "sufficient interest" in the matter. In other words, you must demonstrate that you are affected in some way by the decision you are challenging. Specialised statutory schemes for judicial review may prescribe who may apply for leave. You must also show that you have an arguable case and that your case has grounds and a reasonable chance of success.
The application to the court is based on a statement of grounds. This statement should set out the reasons a judicial review is sought. It should be accompanied by an affidavit.
If leave to proceed is granted, the applicant may then bring judicial review proceedings. A notice of motion should be prepared and, along with the court order granting leave to proceed with the judicial review and both the statement of grounds and the affidavit prepared for the earlier stage, served on all persons directly affected by the application.
Statement of Opposition
A respondent who wishes to oppose an application for judicial review is required to file a Statement of Opposition, and may file a replying affidavit contesting the facts set out by the applicant. Once the pleadings have closed, the matter proceeds to a hearing.
Any person who may be affected by the judicial review proceedings and judgment should be notified or may apply to be heard as a notice party. For example where a person challenges a planning permission granted by An Bord Pleanála (the respondent) the applicant for the planning permission would also be entitled to be heard in the proceedings as a notice party as the proceedings will have an impact on his planning application.
Order 84, Rule 21 (1) of the Rules of the Superior Courts provides that an application for leave to apply for judicial review shall be made within 3 months from the date when grounds for the application first arose.
Where the relief sought is an order of certiorari in respect of any judgement, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgement, order, conviction or proceeding.
However Order 84, Rule 21 (3) provides for an extension of time for an application for judicial review but the court shall only extend such period if it is satisfied that:
- There is good and sufficient reason for doing so, and
- The circumstances that resulted in the failure to make the application
for leave within the three month time period either:
(i) were outside the control of, or
(ii) could not reasonably have been anticipated by the applicant for such extension.
Moreover Order 84, Rule 21 (4) also provides that in considering whether good and sufficient reason exists for granting an extension of time, the court may have regard to the effect which an extension of the period may have on a respondent or third party.
Order 84, Rule 21 (5) provides that an application for an extension shall be grounded upon an affidavit sworn by or on behalf of the applicant which shall set out the reasons for the applicant’s failure to make the application for leave within the three month period and shall verify any facts relied on in support of those reasons.
Statutory judicial review schemes supplement Order 84 of the Rules of the Superior Courts with their own specific procedural rules. These statutory schemes narrow the availability of review through such features as:
- Time limits for an application for leave are shorter
- Requirements to notify the decision-maker of the leave application
- Higher thresholds applied by the High Court when considering whether to allow leave, for example, substantial grounds rather than arguable case.
Examples of statutory schemes are available in our document: Judicial review in planning and environmental matters.
How to apply
If you wish to begin judicial review proceedings, you may want to contact a solicitor who will in turn brief a barrister to draft the papers for the case. It is also possible for you to represent yourself if you wish to keep your legal costs down.
There is no fixed rate of charges for legal fees so you should obtain some quotes before deciding on legal representation. Your solicitor must advise you in writing of the fees you will be charged for his/her services. If it is not possible to give you a definite sum, he/she must estimate a sum or at the very least describe the basis upon which charges or fees will be calculated.
Information on costs in judicial review cases on decisions concerning certain environmental matters is available in our document: Judicial review in planning and environmental matters. See courts.ie for information on the court fees payable.