JR Relief & Remission

Relief Sought

Where the relief sought is an order of certiorari and the Court is satisfied that there are grounds for quashing the decision to which the application relates, the Court may, in addition to quashing it, remit the matter to the Court, tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the Court.

Where the relief sought is a declaration, an injunction or damages and the Court considers that it should not be granted on an application for judicial review but might have been granted if it had been sought in a civil action against any respondent or respondents begun by plenary summons by the applicant at the time of making his application, the Court may, instead of refusing the application, order the proceedings to continue as if they had been begun by plenary summons.

Where the relief sought is or includes an order of mandamus, the proceedings shall not abate by reason of the death, resignation or removal from office of the respondent, but they may, by order of the Court, be continued and carried on in his name or in the name of the successor in office or right of that person.

Remission

The court has the power to remit the decision, and it has wide discretion. Criteria of fairness and justice apply. The court should aim to undo the consequences of any wrongful and invalid act but go no further.

In most cases the appropriate remedy will be to quash the decision and remit it to the decision maker so that the administrative power can be fairly exercised in light of the court’s judgement. The court has discretion on the matter which depends on the circumstances.

The purpose of the remittal order is to attempt to undo the consequences of the wrongful and invalid act. The court should not seek to do more or less than that. The extent to which this is possible will depend on the facts and the legal framework concerned within which the invalid decision may have been taken.

Directions may be given when a case is remitted back to the original decision maker. The specific directions will depend on the issues in  dispute and the grounds on which the orders are made. It may be necessary for the court to assess the legislative provisions that apply when the application is considered.

If the court believes that the original decision maker may not reconsider the decision it may choose not to remit the case. This may mean that the order stands quashed.

Remission to a Point

There may be a number of steps in the decision-making process. The remission may be made back to the appropriate stage or step. It may not necessarily require the process to go back to the beginning. Sometimes, this may not be logistically possible.

If the process is conducted in a regular and lawful way up to a certain point in time the court may give consideration to whether there is good reason for the process to start again. There may be the possibility of remitting the matter back to the decision maker to continue the process from the point in time at which it could be said to have gone wrong.

Nature of Error Factors

The nature of the error affects the decision as to remittal. If there is a finding of lack of good faith there may be remittal to the same organisation but to a different decision maker. The question of whether the matter should be remitted to the same  decision maker depends on the nature of the error identified.

In some cases, for example where  objective bias has been established,  where the decision maker has been shown to have misconducted himself or herself the matter could not possibly be remitted to the same decision maker. In other cases where the mistake was a legal mistake, there is no reason in principle why it should not be remitted to the same decision-maker.

If the process taken by the decision-maker has been conducted in a regular and lawful way up to a certain point of time, consideration should be given to remitting it to that point forward. Factors include the expense and inconvenience which may arise in sending the matter back to the drawing board.

The court may treat the decision-maker as a disinterested party with no stake in the matter.

Where the statutory decision-maker has taken the view that it can carry out statutory functions in light of the findings of the court, the court will not generally override that view. An applicant who is not satisfied with the decision following remittal, would be entitled once again to seek leave to challenge it.

Under planning law where a court decides to quash a decision the court shall if requested by the applicant remit the matter to the planning authority or Bord Pleanala  to reconsider the matter subject to such directions as the court considers appropriate unless the court considers it would not be lawful to do so.

Court Determination & Mootnes

In exceptional circumstances, where one or both parties have material interest in a decision on a point of law of exceptional public importance, the court may, in the interests of the proper administration of justice, determine the matter. The discretion to hear an appeal where there is no longer a live controversy should be executed with caution. An academic and hypothetical appeal should not be heard.

Proceedings may become moot when there is no longer any legal dispute between the parties. The general practice of the court is to the decline in principle to decide the case.

Issues in relation to mootness may arise in the public sphere, most clearly where the proceedings challenge the validity of legislation under the constitution. Events may occur after the commencement of proceedings but before the first instance decision which are considered to render the proceedings moot. Events which may be contended to render a case moot may occur after a decision has been made at first instance by the Court of Appeal but before the Supreme Court appeal.

Each has separate consequences for the parties and the legal system. The discretion of the court to hear the matter should be exercised accordingly.

The court is to consider the context of the proceedings,  the need for judicial economy,  the proper place of judicial decision-making and the separation of powers.