Judicial Review Limits

As of Right v Discretion

The courts have changed their views over time as to the extent to which certiorari issues as of right. Historically, the courts had the discretion to grant or withhold certiorari. the principal public law remedy for quashing unlawful decisions.

The courts appear to have come to the view that the remedy should be available generally as of right, where a person is very directly aggrieved by the decision.  It may not be available to persons with a more indirect interest.

There is a suggestion that a different approach may be taken in criminal rather than civil matters.  Discretion would appear to be broader in challenges in the civil context.

A difficult issue in the context of judicial review is the extent to which the remedy is as of right or as more discretionary in nature. Where a person is directly affected or penalised, the courts consider certiorari to be available as of right.

There is support for the view that the remedy is discretionary in relation to civil cases as opposed to criminal cases, although there is also support for the view that the principle applies in summary criminal cases.

The discretion is not exercised in an arbitrary manner. The courts will take account of the conduct of the party’s delay, the public benefit in making the order and the possibility of alternative remedies.

Public Interest & Conduct

The public interest may be taken into account. What constitutes the public interest or otherwise may be a matter of opinion. The courts do not generally wish to take on a quasi-political role in exercising judicial functions.

The courts will take account of the conduct of the parties.  Where the initial leave for judicial review is made on a unilateral application, there is a high onus on the applicant to disclose all relevant facts to the court.  He or she must act in good faith.

Failure to do so may be held against the party concerned at later stages. The case may be struck out where the court has been misled or material matters have not been disclosed. The case is likely to be struck out only where the matters on which the court has been misled are central or material.

A court may refuse an applicant who has behaved unreasonably. However, a mere allegation of unreasonableness or even strong disapproval by the court of the applicant’s motivation would not be sufficient to prevent a hearing of the application. The unreasonableness must relate to the decision, behaviour in the context of the decision challenged.

An applicant who acts in bad faith or for an ulterior motive may be denied judicial review. For example, if he seeks a benefit, which is not contemplated by legislation; the court may withhold relief in its discretion. If there is no genuine grievance, judicial review might be refused. It is not sufficient for refusal on such grounds that the applicant may obtain other benefits or may have dual or other motives.

The courts have refused relief, where they have discerned that a test case is involved, in which the applicants did not have a substantial personal interest.

Waiver

A person with knowledge of the unlawfulness of a decision may waive his rights. He may acquiesce to the conduct, knowing it to be unlawful and not challenging it.

There may be a waiver during the proceedings. In some cases, continued participation in the public law process which is challenged may constitute waiver if the applicant could have objected at the relevant time.

Alternative Remedies / Appeal

The question of exhausting an appeal mechanisms and other remedies arises in judicial review.  In some cases, the courts will not grant judicial review where appeal and review mechanisms are available.

However, the general position is that the existence of an appeal does not preclude judicial review in itself. There is a strong line of authority that holds.

However, an alternative view is that the requirement to exhaust other remedies does not strictly apply and is a significant factor only. This latter view appears to have prevailed in recent times.

The current position appears to be that it is not strictly necessary to exhaust alternative remedies but that this is a significant factor and failure to do so may bar review. A court will take into account the circumstances, including the purpose for which the remedy is sought, the adequacy of alternative remedies and the conduct of the applicant.

Where a decision has been made in blatant breach of constitutional rights, the existence of a right of appeal will not generally preclude judicial review. The court may exercise discretion in the matter where unlawfulness short of the lack of jurisdiction or breach of constitutional rights is involved.

Where the matter complained of could be remedied on appeal, judicial review will not generally be granted. Where judicial review is a more appropriate remedy, in the circumstances, judicial review may be allowed provided the applicant has not taken steps towards appeal. The court may refuse judicial review where it considers an appeal is the appropriate remedy.

In some cases, judicial review is a more appropriate remedy than an appeal. This may be so, where the public body has wrongly assumed jurisdiction due to an error in its understanding of its own jurisdiction or where there has been an breach of constitutional justice and fair procedures. In contrast, where the matter is based on matters of fact, an appeal that involves rehearing may be more appropriate than judicial review.

Where the matter is technical in nature and there is specialist appeal body, the courts will be less likely to allow judicial review. In contrast, where the matter is principally one of law, the court will be more likely to allow judicial review.

Acquiescence and Third Parties

A person may be held to have acquiesced in an unlawful process by participating without objection, where an objection could have been made. Mere participation is not enough. There must be some conscious failure to challenge a process. This may be manifest where behaviour is such as to give the impression that the decision won’t be challenged.

The courts will take into account the effect on third parties. Where, in particular, there has been a delay in exercising rights, the courts will take account of the fact that other parties might be adversely affected.

Basic Rights Affected

Where questions of personal liberty arise in criminal proceedings, the judicial review will be more readily granted. The courts are better placed to review inferior courts than administrative bodies with specialist knowledge in the relevant field.

The courts are unsurprisingly more comfortable in reviewing purely legal matters.

There is a certain category of unlawful public acts in respect of which delay does not bar judicial review. This is commonly held to include criminal convictions without jurisdiction or in breach of constitutional justice/fundamental fair procedures.

The courts have also acknowledged that in the case of a so-called public wrong having a continued effect on the applicant’s basic rights, he may be entitled to relief, even in the case of delay. This may be so where the wrong continues to mar the life or reputation of the person concerned.

There is authority for the proposition that where a matter arises from failures of the State to transpose its European Union legal obligations of sufficient general interest. that the State may not rely on the delay of parties in initiating a challenge.

Delay

Generally, the time runs from the date of the relevant decision. Occasionally, the dates of the decision may not always be immediately clear. In such cases, the court will determine the date of the final decision.

The court rules themselves contemplate grounds for extending the general time limits for application for judicial review.

The rules require that the applications be made promptly in addition to being required to be made within the relevant time limit. Accordingly, an applicant who proceeds within the relevant time limits may nonetheless be refused leave or ultimate relief on the basis that he has unduly delayed even within this context.

If there is no good reason for the delay, particularly in circumstances where the effect of the challenge on third parties is significant, courts may refuse to leave or the ultimate relief.

If there is no prejudice to third parties or the respondent, there is likely to be less difficulty with delay.  On the other hand, where a public authority moves to the next stage of a process and third parties have been afforded rights and acted in reliance on them, delay is more likely to be a difficulty.  The court’s discretion to extend time will be exercised with reference to these factors.

Leave Required

Over the last 35 years, legislation has been enacted, particularly in the environmental area and laterally in the context of financial emergency legislation, greatly restricting the time limits in which judicial review may be sought.

The Culleton report on industrial policy criticised delays in planning process in its impact on infrastructure on commercial and industrial facilities. Planning legislation was reformed in 1990 to make judicial review timelines significantly shorter.

The leave stage was required to be on notice. Time limits were shortened.  The merits of the case were required to be examined to a greater extent at the initial stage.

Similar legislation has followed in a number of areas where the public interest seems to collide with the individual right to review the legality of decisions. Prominent examples include the National Asset Management Agency Act and The Credit Institutions (Stabilisation) Acts.

In Vain /Budgetary

It is a recurrent principle in public law that the courts will not grant an order in vain.  The order must be of practical benefit to the applicant and must not be futile.

For example, there may for example be supervening circumstances such that the question of legality or otherwise of a decision is ultimately moot. Circumstances may have supervened. There may be changes in the law, and other practical considerations may make the original decisions inconsequential.

The principle is similar to that of standing in the context of constitutional law. Where the decision does not in fact impact the person, the court may decline to grant a remedy.  Similarly where the terms of the order sought are such that it would not in fact benefit the payment, the principle may apply.

The courts may refuse to make an order against a public body where it is financially or otherwise impossible to secure compliance. In a case involving a challenge to the non-commencement of legislation or the liability of the public authorities to repair roads, the Supreme Court declined to make an order, which is ultimately discretionary in nature, against County Councils to do that which was outside their financial capacity.

The courts interpret and apply the law and cannot generally take account of political or economic considerations. The courts have not accepted arguments of behalf of the State where the effect has been to oblige the authorities to comply with legal obligations that may have significant budgetary effects.

In some cases, the courts look at the broad effect of the order. Many public decisions of their nature may have an indirect effect on third parties. Many challenges are in the area of planning and the environment, which often affect a community as a whole.

No Practical Benefit

The courts take a broad view of the utility of an order. Persons may have legitimate interest in their reputation, notwithstanding, where for example, a public report has been critical but there is technically no possibility of prosecution.

In some cases, the courts will not invalidate a decision which is procedurally flawed but patently correct. Exceptionally, this principle may apply even where fair procedures have not been followed.

The courts may refuse to formally invalidate a decision where no injustice has been caused. This may be so even though they do not support and acknowledge the decision to be invalid. This may apply where the matter is relatively trivial or has minimal practical effect.  On the other hand, there is public value and importance in a decision being seen to be valid as well as being substantively valid.