Judicial review of public decisions
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. The High Court has the power or jurisdiction called "judicial review".
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.
To apply for judicial review, you must show that you were affected in some way by the decision you are challenging. You must also show that your case has grounds.
There are 2 types of judicial review:
- Conventional judicial review: Procedure governing conventional judicial review is set out in Order 84 of the Rules of the Superior Courts.
- Statutory judicial review: Some legislation sets out rules about how statutory reviews of decisions made under the legislation should be governed. Statutory schemes apply to such areas as asylum, pollution control, planning and the takeover of companies.
Types of decisions covered by judicial review
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. This includes reviewing how the decision was made and the fairness of it.
Judicial review of a decision of the lower courts is generally not the same as appealing the decision. An appeal against a decision of a lower court is often based on the substance of the decision, rather than just how the decision was made. However, in many cases where a judicial review is available, there also may be the option of appeal.
Some examples of judicially reviewable decisions include:
- Decisions of the District and Circuit Courts
- Inquest verdicts
- Decisions of tribunals (for example, the Labour Court, the Residential Tenancies Board, and the International Protection Appeals Board)
- Discharge of a member of the defence forces or An Garda Síochána
- Decisions of the Social Welfare Appeals Office
- Refusals of an Irish passport, marriage certificate, or visa
- Deportation orders
- 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.
Basic principles of public decision-making
There are some basic principles that public bodies must follow for their decisions to be deemed fair. The decision maker must comply with all legal requirements governing the decision and its making.
Authority to make the decision
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. Going beyond its limits is called acting ultra vires.
The right to be heard and impartiality
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.
What can the High Court order?
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. The High Court can grant reliefs and remedies in any of the following ways:
Order of Certiorari
The High Court can cancel the original decision by granting an Order of Certiorari. The original decision maker generally must then re-examine the case and issue a new decision.
Order of Mandamus
If the adjudicating body has yet to issue a decision, the High Court can compel them to make a decision by issuing an Order of Mandamus.
Order of Prohibition
The High Court can prevent the adjudicating body from issuing a decision by issuing an Order of Prohibition. For instance, the High Court may prohibit a criminal trial from going ahead in the Circuit Court.
The Court may issue a declaration of the rights of the parties.
An injunction can either prevent an action or compel an action.
The Court can award damages if it believes that this is a suitable remedy.
Judicial review procedure
The conventional judicial review procedure is governed by Order 84 of the Rules of the Superior Courts.
The first step is to make an application for leave to bring judicial review proceedings. 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.
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 their 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 is 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.
The court may have regard to the effect that an extension of the period may have on a respondent or third party.
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.
Further information and costs
If you wish to begin judicial review proceedings, you should 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 get some quotes before deciding on legal representation. Your solicitor must advise you in writing of their fees. If it is not possible to give you a definite sum, they must estimate a sum or give you information about how 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.