Judicial Review

General

Judicial review is a High Court procedure in which the legality of acts of public and administrative bodies may be challenged and found invalid.  The focus is not on the merits of a decision, but on its legality. Judicial review may be undertaken in relation to the acts and decisions of the so-called lower courts; the District and Circuit Court and also and more commonly, that of Governmental and administrative bodies.

Judicial review challenges the decisions of public law.  It deals with questions affecting the rights of individuals and citizens.  The decision of the public body must impact upon the property, good name or rights of the citizen. There is a duty to act “judicially”, where the exercise of the power affects rights or imposes liabilities on individuals.

There are a number of types of orders that the High Court may grant in a judicial review application. It may grant orders declaring the invalidity of decisions, quashing decisions made without legal authority, compelling public authorities to take certain action and granting compensation for unlawful administrative action. The focus is not usually on compensation and this is not a feature in most cases.

An order of Certiorari quashes the decisions that had been made the administrative body or lower courts without legal authority.  An order of Mandamus compel a public body to take certain steps.  Generally, the person must have called upon the public body to perform its duty and it must have refused.

An order of Prohibition prohibits a public body from taking a specified action.  A Declaration declares the rights of the parties without any order compelling the legal right. Public authorities are obliged to obey the law and a declaration of the position must be followed by them.  An Injunction may be ordered preventing a particular action.  The Court may grant the appropriate remedy as is just convenient for the circumstances.

Procedure for Judicial Review

The Judicial Review procedure generally requires an initial application for so-called leave for judicial review. The requirement for leave is a filtering device, so as to prevent vexatious cases with no chance of success. In most cases, this is made by way of a one-sided application to the  Courts which seeks permission for the institution of judicial review.

In order that leave or permission to proceed is granted, it must be shown

• that the applicant has sufficient interest;
• that if the facts alleged were true, there would be grounds for obtaining relief in judicial review;
• that there is an arguable case of law;
• that the application is made promptly within certain time limits (effectively three months or six months) and
• that the only effective remedy is judicial review, there not being an alternative effective remedy.

In certain cases, relatively recent changes to legislation have provided shorter time limits and required a two-sided application for leave for judicial review. This has happened in planning and environmental areas with a view to limiting vexatious claims. In these cases, it is necessary to give the public authority notice of the application for leave.

When leave to grant judicial review is granted, the relevant decision or process is frozen unless the Court otherwise orders.  The Court may also grant interim orders at this stage.

Application for Judicial Review

There is no automatic right to relief (by way of one of the above orders) in a Judicial Review application  The Court\’s powers are ultimately are at their discretion.  Rights may be lost on account of delay, bad conduct or undue prejudice caused to the administration.  The Courts will not grant orders in the absence of good reasons which so require.

The applicant must act in good faith and fully disclose all relevant matters.  If, for example, an applicant for judicial review exaggerates his claims, this may hold against them in terms of the Court’s discretion.  The Court will have regard to the conduct of the applicant, whether third parties may be affected.

Applications for judicial review must be made promptly and in any event within three months from the date of the decision or six months in the case of an application based on exceeding jurisdiction.  Time may be extended where there is good reason.  There must be something in the circumstances, which will excuse the delay in instituting the judicial review proceedings.

An applicant may be denied relief where he has acquiesced to the decision and waived his rights to challenge it.  However, this will not be allowed to give the public body powers and rights, which it does not have.  Relief is not granted if it would be futile, illegal or would cause further delay without any practical benefits.

When an Order for judicial review is made, the Court may remit the decision to the original authority and ask it to reconsider its decision in light of the Court\’s finding.

Effect of Appeal

If there is an alternative appeal or remedy available, this will not necessarily prevent an application for judicial review.  The Court has the discretion to consider the adequacy of the alternative route.  If the available appeal process is adequate to meet the complaint, then the Court may use its discretion not to allow a judicial review challenge to legality.

In some cases, there may exist a right to have a decision entirely reconsidered.  This may be more appropriate than a judicial review. However, the Courts will often grant judicial review notwithstanding the existence of a right of appeal.   One view takes the approach, that the citizen is entitled to a proper decision at the initial stage whilst the other view is that an appeal may be adequate in other cases.

Where the grounds of complaint is that the decision was made in breach of constitutional justice, then the Courts appear less likely to require an appeal to be taken.  The Courts will not insist on an appeal where it is necessary to keep an administrative body from implementing a clearly erroneous decision.

Standing

There is a requirement that an applicant for judicial review is affected by the decision which is challenged.  He or she should have “standing” to bring the case.  The purpose is to maintain the integrity and legality of the administrative system. Generally, it is not possible to argue in relation to the rights of hypothetical third parties.

The purpose behind the requirement is that a person cannot champion the rights of a third party based on a hypothetical case.  There are exceptions to the requirement for standing where

• the interests of justice require;
• those affected by the decision are not in a position to challenge it;
• the wrong is being directed against a particular group of which the applicant is a member

In exceptional cases, the Courts have allowed challenges in the public interest where important points of law have been involved.  There had been several cases where decisions to challenge such matters as the Anglo Irish Agreement, Single European Act had been allowed.

Bodies Subject to Judicial Review

Judicial review is applied to both public bodies and to certain private bodies who undertake functions which have a key impact on a person\’s livelihood, property, etc.  A State body may be a government department, state-sponsored body or a private company.  Similarly a private body such as a trade union, a professional body may have significant powers which are similar to the governmental body.

Principles of fairness have been applied to standard form contracts of public bodies such as the ESB.  In practice competition law and unfair contract terms have been a more precise and up to date means of challenging such rules.

Judicial review is not available to challenge the decision of all public bodies.  Some bodies and associations are regarded as merely private associations founded on the agreement of the members.  Contracts made by public bodies acting in a private capacity e.g. leasing a property are not subject to judicial review.

Where a private body exercises functions which might otherwise have been legally regulated then it is likely to be possible to challenge its findings by judicial review.

A private body may be granted powers to regulate an activity by private charter or agreement.  Due to the consequences of the decision makers decisions for individual members, the proceedings must be determined in accordance with the principles of natural justice.  Many public regulatory bodies are set up as private companies owned by government departments.