{"id":9969,"date":"2022-07-03T14:25:47","date_gmt":"2022-07-03T14:25:47","guid":{"rendered":"http:\/\/legalblog.ie\/judicial-review-remedies\/"},"modified":"2024-03-03T20:29:12","modified_gmt":"2024-03-03T20:29:12","slug":"judicial-review-remedies","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/judicial-review-remedies\/","title":{"rendered":"Judicial Review Remedies"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/judicial-review-remedies\/#Certiorari\" title=\"Certiorari\">Certiorari<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/judicial-review-remedies\/#Mandamus_I\" title=\"Mandamus I\">Mandamus I<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/judicial-review-remedies\/#Mandamus_II\" title=\"Mandamus II\">Mandamus II<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/judicial-review-remedies\/#Prohibition\" title=\"Prohibition\">Prohibition<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/judicial-review-remedies\/#Declaration_I\" title=\"Declaration I\">Declaration I<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/judicial-review-remedies\/#Declaration_II\" title=\"Declaration II\">Declaration II<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/judicial-review-remedies\/#Quo_Warranto\" title=\"Quo Warranto\">Quo Warranto<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/judicial-review-remedies\/#Injunction_I\" title=\"Injunction I\">Injunction I<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-9\" href=\"https:\/\/legalblog.ie\/judicial-review-remedies\/#Injunction_II\" title=\"Injunction II\">Injunction II<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Certiorari\"><\/span>Certiorari<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Certiorari is an ancient remedy developed by the royal courts to exercise supervision over justices of the peace. \u00a0\u00a0The justices exercised jurisdiction in a range of criminal and quasi administrative matters. Over time, the remedy developed and was extended to bodies and tribunals whether courts or not where a legal body had authority to affect rights and had a duty to act judicially or quasi-judicially in accordance with law.<\/p>\n<p>The remedy issues against an entity or person who has acted in excess of its legal powers.\u00a0 This may arise from acting outside of powers or in a way that breaches basic fair procedures.<\/p>\n<p>The essence of the remedy is that it negates usurpation or unlawful exercise of public authority.\u00a0 Decisions are not reviewed on their merits but on the issue of legality. An order for certiorari invalids or quashes the determination of the lower court or tribunal.<\/p>\n<p>If an order is appealed in accordance with a judicial or administrative appeal, then the substituted order on appeal is the relevant order for the purpose of certiorari.\u00a0 The appeal substitutes the original order.<\/p>\n<p>An order of certiorari may be made where it is determined that the court or body had no jurisdiction, in which event the proceedings or matter are a complete nullity.\u00a0 Other orders of certiorari may be based on invalidity due to the process lacking basic fair procedures before a court or body with the requisite authority.<\/p>\n<p>This may lead to an acquittal for criminal purposes, where it is not possible to retry the matter.\u00a0 In the latter case, the accused has been in jeopardy, whereas he would not have been in jeopardy if there was a total lack of jurisdiction.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Mandamus_I\"><\/span>Mandamus I<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Historically, Mandamus was a remedy issued by the King&#8217;s Courts requiring that a legal obligation and duty be fulfilled.\u00a0 An order of Mandamus may require that a public duty be performed.<\/p>\n<p>The obligation may be statutory. In some cases, it may subsist under contractual arrangements, for example, through the rules of an association exercising public functions. The nature of the obligation will be considered.<\/p>\n<p>Generally an order of Mandamus may be issue, in appropriate circumstance where there appears to be a discretion on the part of the public body. \u00a0Many statutory provision provide an apparently discretionary public powers.\u00a0 However, in context, it is often clear that what is apparently a discretion is, in the appropriate context, an obligation.<\/p>\n<p>Orders of Mandamus may issue against public bodies, officials or inferior court.\u00a0 It may not be issued (as with other public remedies) against the higher courts. It may be made against court officers, including the taxing master and the Master of the High Court.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Mandamus_II\"><\/span>Mandamus II<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Orders may be issued against public bodies at all levels including the government and state in appropriate cases. It applies where a public duty has not been performed.\u00a0 It does not lie where it has been performed incorrectly, performed incorrectly.\u00a0 If, however, the public official refuses to perform a function or believes that he or she lacks jurisdiction where they do, the order may be made.<\/p>\n<p>The applicant must have an interest in the duty being performed.\u00a0 Generally, a demand must have been made for performance, followed by a refusal.\u00a0 The demand must specify the duty.\u00a0 Refusal may be found in inaction.<\/p>\n<p>The grant of mandamus is said to be exceptional and to be granted only where there is no other more convenient remedy available.\u00a0 This does not necessarily mean that there must be literally no alternative mechanism.\u00a0 Factors of time and cost would be considered.<\/p>\n<p>As with other public law remedies, delay or misconduct causes the court not to grant mandamus. A court will not make an order in vain.<\/p>\n<p>An order of mandamus directs the performance of a duty.\u00a0 Depending on the nature of the duty, it may be in broad terms such that the precise exercise of power may not be specified.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Prohibition\"><\/span>Prohibition<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>An order of prohibition restrains a body or a lower court of limited jurisdiction from acting unlawfully or in excess of jurisdiction. It is similar in nature to the remedy of certiorari, which invalidates or quashes the decision of a public body.<\/p>\n<p>As with certiorari it historically lay against inferior courts, i.e. now the District Court and Circuit Court but historically the justices is the exercise of the additional quasi-judicial and quasi-administrative functions.<\/p>\n<p>In modern times, the jurisdiction applies to administrative and quasi-judicial bodies in almost the same way as the remedy of certiorari.\u00a0 It may be available to restrain what would otherwise constitute a breach of fair procedures.<\/p>\n<p>Prohibition may prevent action or orders in breach of jurisdictional limits or in infringement of fundamental human rights.\u00a0 Prohibition may be sought, for example, where a prosecution is sought to be retaken in what would otherwise constitute an abuse of \u00a0the principle of double jeopardy. It may be sought where there has been an extraordinary delay in initiating proceedings, in particular criminal proceedings, such that it may prejudice a fair trial.<\/p>\n<p>Prohibition will not be readily \u00a0granted in anticipation of a breach of jurisdiction. Unless there is evidence otherwise, it will be deemed that inferior courts, tribunals and bodies will exercise their functions within the limits of the law and in accordance with fair procedures.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Declaration_I\"><\/span>Declaration I<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A declaration is a civil remedy historically granted by the courts of chancery.\u00a0 See the separate section in relation to a declaration as an equitable remedy. Generally, a declaration confirms a particular position but does not grant any remedies in consequence.\u00a0 Public bodies however are entitled to follow the law and when the legal position has been affirmed in a particular respect, it may be expected that it will adhere to it the declaration.<\/p>\n<p>The declaration is a flexible remedy. As with other public law remedies, it may be granted against bodies exercising judicial, quasi-judicial and administrative functions. Formerly it was granted sparingly, but in modern times it is more readily granted provided there is a good reason for so doing.<\/p>\n<p>A declaration will not be granted in respect of a moot or theoretical matter.\u00a0 The person seeking the declaration must have an interest in the matter concerned.\u00a0 The respondent must be an appropriate party.<\/p>\n<p>A party cannot simply have a declaration unopposed.\u00a0 As with legal proceedings generally, it may only be granted in the context of a dispute between parties with contrary interests. The order will not be made in hypothetical circumstances. It must be based on facts before the court in the normal way.<\/p>\n<p>In theory, a declaration may be granted where there is an apprehended breach of jurisdiction.\u00a0 There must be a real and immediate threat.\u00a0 The applicant&#8217;s interest must be an infringement of a right on the part of the applicant, although not necessarily one that will give rise to a civil action for damages.<\/p>\n<p>In appropriate cases, the Attorney general may be joined to represent the public interest.\u00a0 The court has the power to appoint a party to represent a contrary view in appropriate circumstances.<\/p>\n<p>A declaration as an equitable remedy is discretionary in nature.\u00a0 The discretion is exercised in accordance with well-established criteria.\u00a0 See generally the grounds on which public order remedies may be refused.\u00a0 It may be refused, for example, on the grounds of the delay, the conduct of the applicant or the failure to use an alternative relief or where in the circumstances it would provide no meaningful relief.<\/p>\n<p>Court rules provide that a declaration may be granted where it is just and convenient. It is to have regard to the nature of the matters in relation to which relief is sought, whether by way of mandamus prohibition, certiorari or quo warranto, the nature of the persons or bodies against whom the relief may be granted.<\/p>\n<p>As with other public order remedies, it may be sought together with or in the alternative to the classic public law remedies of certiorari, prohibition and mandamus.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Declaration_II\"><\/span>Declaration II<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>In the case of challenges to the Constitutionality of statutory provisions, the proceedings will commonly \u00a0proceed by plenary hearing.\u00a0 However, a declaration of constitutionality may also be made by way of an application for judicial review.<\/p>\n<p>A declaration of unconstitutionality be sought in relation to the invalidity of statutory instrument either under the Constitution or because it is outside the statutory power under which it is made.<\/p>\n<p>In some cases, the declaration may be an alternative to certiorari.\u00a0 Certiorari quashes decisions that are unlawful by reason of breach of jurisdiction or failure to use fair procedures.\u00a0 A\u00a0\u00a0 declaration may be made in some cases because it is less disruptive than other remedies. As it does not invalidate the proceedings, it may allow the body itself to adopt the court declaration so as to be left disruptive to the statutory scheme and the decision-making process.<\/p>\n<p>The declaration may declare that there has been a breach of fundamental constitutional fair procedure.\u00a0 It may declare what is required for fair procedures in the circumstances.<\/p>\n<p>The declaration may declare the proper application of the law to particular circumstances.\u00a0 It may accordingly define the terms of the applicant\u2019s rights and entitlements.\u00a0 It may declare the true legal position and the terms of the rights and obligations of the public authority and the citizen.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Quo_Warranto\"><\/span>Quo Warranto<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Quo warranto is a standalone remedy in public law matters.\u00a0 It is rarely invoked in practice in modern times. \u00a0\u00a0It is sought by way of judicial review.<\/p>\n<p>In strict terms, it is an application challenging the qualifications of an appointee for office.\u00a0 Alternative means exist challenge its decisions by way of declaration or injunction and quo warranto is unlikely to be used in modern times.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Injunction_I\"><\/span>Injunction I<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>An injunction may be granted in an application by way of judicial review.\u00a0 See generally the sections on injunctions and equitable remedies.\u00a0 Injunctions may be granted on much the same criteria as in private law matters.\u00a0 It may be granted if the court considers it just and convenient having regard to<\/p>\n<ul>\n<li>the nature of the matters in respect of which relief may be granted by way of mandamus prohibition, certiorari or quo warranto,<\/li>\n<li>the nature of the persons or bodies against whom relief may be granted, and<\/li>\n<li>all the circumstances of the case.<\/li>\n<\/ul>\n<p>In the usual way, an injunction may be directed to a respondent to restrain it from engaging in specified conduct pending the determination of a matter or following a full hearing. It may be granted in aid of or in support of the requisite rights. It \u00a0may restrain the misuse of powers by public bodies.<\/p>\n<p>An interlocutory injunction may be granted at the initial stage of judicial review proceedings pending full determination.\u00a0 It may restrain a public authority from taking particular steps.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Injunction_II\"><\/span>Injunction II<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The criteria for granting an injunction in public law matters is similar to that in private law matters.\u00a0 There must be a fair question to be tried.\u00a0 The injunction \u00a0will be granted if the balance of convenience lies in favour of such granting.\u00a0 See generally the sections on injunctions in this regard.<\/p>\n<p>The public law context, \u00a0however, may lead to different in regard to the how and when injunctions are granted.\u00a0 In public law cases, the issues are more commonly issues of law than issues of fact.<\/p>\n<p>It will generally be more difficult to assess what is or is not a fair point of the question of law without considering the matter in a preliminary application.\u00a0 Damages are rarely granted in public law matters, so may be less suitable as a substitute remedy.<\/p>\n<p>In public law matters, the interest of the public generally and that of other third parties with an interest in the process may be more significant factors than in private law matters.\u00a0 The public interest may raise controversial issues.<\/p>\n<p>There may be a severe impact of the efficiency of administration and on the public, if for example, injunction is granted against an important public process such as adoption of the development plan.<\/p>\n<p>The principles applicable to the grant of an injunction are more flexible than those in respect of prohibition. It may be granted in an interim basis unlike other public law remedies.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-9969\" data-postid=\"9969\" class=\"themify_builder_content themify_builder_content-9969 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Certiorari Certiorari is an ancient remedy developed by the royal courts to exercise supervision over justices of the peace. \u00a0\u00a0The justices exercised jurisdiction in a range of criminal and quasi administrative matters. Over time, the remedy developed and was extended to bodies and tribunals whether courts or not where a legal body had authority to [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[202],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/9969"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=9969"}],"version-history":[{"count":5,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/9969\/revisions"}],"predecessor-version":[{"id":32613,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/9969\/revisions\/32613"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=9969"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=9969"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=9969"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}