Judicial Review Procedure

Prerogative Writs

The historical antecedents of modern judicial review were the so-called prerogative writs.  They are certiorari mandamus prohibition and habeas corpus.  The label prerogative emphasizes their link with the Crown.

The writs issued from the Kings Bench which was notionally the court most closely associated with the King. The functions of the King’s Bench transferred to the High Court after the amalgamation of the courts of equity and courts of law.

Certiorari was a command issued by the Crown.  Mandamus is founded on an alleged failure of an officer of the Crown to perform a public duty.  Prohibition forbids a proposed course. Habeas corpus required production of imprisoned person and justification for the depravation of their liberty.

A feature that remains to the current day is that the writs do not issue as of right, but as a matter of the court’s discretion.  This does not mean that the discretion is exercisable in an arbitrary manner.

The orders were referred to as so-called state-side orders.  The matters commenced by a unilateral application for a conditional order. The matter proceeded by way of notice on motion by an order, making the conditional order absolute.

Cause could then be shown against the conditional or provisional order by the respondent.  If cause was not shown an application could be made, make the order absolute.

Rule Revision 1986

A Law Reform Commission  Review led to a substantial revision of the rules in the 1986 reconsolidation of the Rules of the Superior Court.  This rationalised the procedure.

The matter commences by way of an application for judicial review in accordance with the revised rules.  The various remedies can be claimed as an alternative or together.  Those remedies include an injunction and an order for damages.

The prerogative nature of the proceedings was reflected in the title [the King (or Queen) [A] v [B].  This continued to be used in the 1920s, reflecting the continued place of the crown in the Irish Free State.  Ultimately, in the early 1930s, the “Crown” (R) was substituted by “the State”, with the application entitled The State [A] v B

The 1986 Rules removed the “State” from the title of the plaintiff.  This reflects the fact the plaintiff is usually a private citizen and that a state body is the defendant.  Accordingly, proceedings are simply entitled as [A] v  [B] but are labelled judicial review proceedings for administrative purposes.

The named respondent is the party against whom relief is sought. Parties who have an interest but against whom the relief is not sought may join or be joined in the proceedings.

Commencement

The first stage in a judicial review application is the application for leave for judicial review.  It must be made promptly and in any event within three months of the date of the grounds when the application first arose. In some cases, such as in planning, a shorter time limit applies. The court may, if there is good reason, extend the period in which the application may be made.

In any event, the applicant must move expeditiously and any delay maybe a bar in itself at the court’s discretion even if made within the three month period. The courts are reluctant to grant extensions of time without good reason.

An application for judicial review is preceded by an ex parte [unilateral application] in a prescribed form verifying the facts concerned.  In an increasing number of cases, the statute requires that the application for leave is made on notice to the other party.   In an increasing number of cases, the statute provides a higher threshold than applies generally.

The grounds must be set out. The affidavit must set out the particulars of the applicant, the grounds of the application and the reliefs sought.  This is verified by affidavit.

Papers are filed in the Central Office of the High Court, and the application is made in an ex parte list.  Urgent applications may be made directly to the judge by arrangement with the registrar.

Requirements for Leave

The applicant must show that he or she has a sufficient interest in the matter.  The case set out must be stateable and that it forms a sufficient basis for the relief sought.  The court will consider whether the application has been made promptly and in good time.

It must be shown that the facts claimed would, if proved,  be sufficient to support a stateable ground for the relief.  There must be an arguable case in law that the applicant is entitled to the relief. It must be shown that the only effective remedy is by way of judicial review or that if there is an alternative remedy, that judicial review is more appropriate. The conditions are not exhaustive, and the court has broad discretion on an application for an ex parte order.

The court may grant leave and impose terms as to costs.  It may require an undertaking in relation to damages.  The judge may require the undertaking of his own motion, or it may be sought by a respondent party on the continuation of leave or on the initial application on notice. Security may be required exceptionally.

Where an order of prohibition or certiorari is sought, the court may direct the ground of leave, stays proceedings in the matter concerned until the application is determined or until the court orders otherwise.  Under the rules, the court may grant such interim relief as may be granted in a claim by plenary summons.  The principles applicable on the grant of an interlocutory injunctions apply.

Appeal refusal Leave

Where the ex parte application is either refused or heard in part by the High Court, an application may be brought to the Court of Appeal within four days or such longer time as the Court of Appeal Court may allow.

It appears that the respondent or notice party may appeal the grant of leave.  The court itself has jurisdiction to set this aside.  There is a heavy onus on the respondent in such an application.  The respondent may apply to the court to vary or discharge the order.  This is done by motion on notice.

Post-Leave Procedure

After the granting of leave, the court may direct that the matter proceed by originating a motion of notice of motion or plenary summons.  The plenary summons is only used in more complex cases.  Once leave is granted, the originating motion or summons must be served within 14 days or such longer period as the order directs.

The applicant must serve copies of the orders and statement of grounds and verify affidavits for the respondents and other parties who are directly affected.  Service must generally be personal.  If the person concerned/  applicant is in custody, he may use prepaid post.

If the application relates to court proceedings and the purpose is to have the court or court officer do a particular thing, the notice of motion or summons is served on a clerk or registrar.  In the case of an application against a state authority [as most such applications will be], the order generally directs service on the Chief State solicitors’ office on behalf of the authority.

An affidavit is filed giving particulars of service.  If persons who ought to have been served have not been served, an explanation is required.  The court may adjourn proceedings and direct service on other parties.  Generally, the applicant must lodge the challenged order, verified by affidavit if necessary, in the court offices.

When leave is granted, the court may fix a date on which the notice of motion is to be heard.  On the first date, a short directions hearing is likely.  This will deal with the exchange of documents before the principal trial or hearing of the matter.

Opposition

A respondent must file a statement setting out grounds of opposition and facts.  The facts on which it is based must be verified by affidavit.  It must be limited to matters in the application in respect of which leave for review has been granted.

The statement of opposition and supporting affidavits are to be served within seven days after service of the notice of motion as the court allows.  An application for extension may be made ex parte in some cases.

A third party with an interest in the application may apply to be heard to oppose the application, notwithstanding that it has not been had a party or served.  It must be a party with proper interest in the matter.

Pre-Hearing Steps

The next stage will be a scheduled date for the exchange of documents.  If documents have been exchanged and pre-trial directions completed, the case is adjourned to a list to fix dates for the purpose of a trial.

Practice directions require lodgements of documents for the court in advance of hearing including copies of the motion order granting leave, statement of grants, affidavits, exhibits, statement of opposition, affidavit in support of opposition, affidavit of service, copies of the challenged order where applicable.  These should be prepared by way of a book of documents for the judge.

Generally the parties are required to submit written summaries of their submissions in central office at least a week before the hearing.  This should refer to the relevant authorities, statutes, etc.  This does not necessarily limit the parties to these arguments.

Court has jurisdiction to deal with interlocutory applications for judicial review.  This includes application for discovery, interrogatories, third party discovery, examination on commission.  An interlocutory application for an injunction may be made.

The court may allow the applicant or respondent to amend their statement or opposition as it sees fit.  Further affidavits may be allowed.  An application for amendment must be made on notice to the other party.  An amendment on pleadings will only be allowed in exceptional circumstances.  This is because the leave is based on the case as originally presented.

The court may stay proceedings if it forms the view that they are frivolous or vexatious or that the case must fail.  However, such cases are unlikely to secure leave for review in the first case.

Trial of Matter

The hearing on the trial of the matter is generally on affidavit.  The court may order the attendance of persons to be cross-examined.  Alternatively, an application may be made to direct a person to attend for cross-examination.  An oral hearing may be directed in any case where there is a conflict of affidavit evidence that requires resolution.

Where the application proceeds by way of plenary summons, there will be a full hearing with oral evidence. The court may hear the matter on the basis of agreed facts or written evidence.  This may be done with the court’s agreement.

On determination of proceedings, the court may make the appropriate order.  Certiorari invalidates and quashes the proceedings concerned.  A declaration declares rights.  Injunction or damages may also be issued.

Where a declaration, injunction, or damages are sought, and the court considers it more appropriate that the matter proceed as if brought by plenary summons, it may be so direct.  An order may be made that proceedings stand and be heard as if commenced by plenary summons.

If a decision is invalidated, it may be remitted to the relevant authority with a direction to reconsider it and make the decision or determination in accordance with the court’s findings and judgment.

Costs

Costs in judicial proceedings are determined in the usual way.  Exceptionally, an unsuccessful applicant may be awarded costs if the court considers that an important point of law was involved. Conversely, in exceptional cases, an applicant may be denied costs, notwithstanding that his case is successful.

In principle, costs are not awarded against a judge unless he or she has not acted bona fide or have supported a case that is wrong in law.  This may lead to anomalies.

In criminal cases, the DPP is made a party to judicial review, largely for the purpose of cost.

Appeal Full Hearing

An appeal lies to the Supreme Court / Court of Appeal with respect to the decisions of the high court.  Notice of appeal is given within 21 days of the formalisation of the High Court order. I

t must be entered into the office within seven days.  Five books of appeal containing matters prescribed by Practice Direction must be lodged.

A date is allocated for the hearing, and submissions are required.  The court may make directions regarding the organization of the hearing.

The court will generally base the appeal on a review of the affidavits and the transcript in the case of evidence given verbally.  New points may only be introduced in exceptional circumstances.