What is Judicial Review?
Put simply, judicial review is the legal procedure which enables persons (including legal persons) to challenge the decisions of public bodies made in exercise, or purported exercise, of their public functions, or, indeed, the omissions of such bodies. Unless some other procedure is specified as applicable where a person is aggrieved by a decision or omission of such a body, judicial review is the appropriate remedy, even if it is not expressly mentioned in the legislation governing the body concerned.
The existence of a ‘public law’ dimension is central to any judicial review application. Therefore, judicial review is not the type of action to bring if, for example, a person has suffered a personal injury at the hands of a public body, or if a person believes that such a body has breached a contract. Whilst the issue in each case would involve a public body, the respective issues in them concern private, as opposed to public, law matters, and are therefore not ones for judicial review.
Against whom can judicial review be sought?
Judicial review proceedings can be brought against any person/body exercising a public function. Usually, the person/body is set up by, or under, legislation. Accordingly, judicial review will lie in respect of decisions of bodies such as Government ministers, licensing or planning authorities, An Bord Pleanála, contracting authorities (in respect of contract award processes under public procurement rules), tribunals, inferior courts, or regulators, to instance but a few.
Note that only the High Court, and, on appeal, the Supreme Court, have jurisdiction to entertain judicial review proceedings. Judicial review does not lie against these courts, or judges of these courts acting as such.
A person may, in certain circumstances, even bring judicial review proceedings against private bodies if those bodies are carrying out public functions. For example, judicial review proceedings were issued against the Irish Coursing Club Limited, a private limited company, in circumstances where that company had been given certain statutory functions under the Greyhound Industry Act 1958.
What Can Judicial Review Achieve?
Judicial review is a comparatively speedy type of action that is brought, within the above parameters, to:
- stop a public body from doing something it ought not to do; • make a public body do something it has a duty to do;
- restrain a public body from doing something in an incorrect and/or unfair way;
- set aside (or “quash”) decisions made on foot of an incorrect and/or unfair process;
- quash decisions made without authority, irrationally or without supporting material; or
- have the court declare the position at law regarding the above matters.
It is evident from the foregoing that the Superior Courts have the jurisdiction in judicial review proceedings to examine both the procedural fairness and the ‘substantive’ lawfulness of decisions of public bodies. It is important to note, however, that judicial review proceedings do not challenge the merits of decisions made by public bodies. Instead, such proceedings look at whether the decisions of public bodies are within the bounds of lawfulness. Accordingly, if the court finds that a public body was, in fact, acting ultra vires (that is to say, beyond its powers), it will not substitute its own decision for the unlawful one made by the public body; rather, it will quash the decision, and, where appropriate, send the matter back to the public body, so that the decision-making process can be conducted afresh, and lawfully. Where this is not appropriate, it might just quash the decision, and declare that it was ultra vires, void and of no legal force or effect, whereupon the position thus created would have to be dealt with by the public body and other persons involved, accordingly.
What do we need to look out for?
Judicial review, as we have noted, is a specialised form of court procedure to be availed of in particular circumstances. As such, its operation is governed by its own set of rules and practices, covering the following issues:
- Time limits (see below).
- Standing. To bring an application for judicial review the applicant must have a “sufficient interest” in the matter at issue. Although this is usually obvious, difficulties can arise in demonstrating such interest to the court.
- The application process (see ‘How do judicial review proceedings work?’ below).
- Having an arguable case (see ‘How do judicial review proceedings work?’ below).
- Discretionary remedy. It must always be remembered that judicial review is a discretionary remedy. The courts are not obliged to grant any of the remedies sought even if the applicant is, in fact, aggrieved by the decision of the public body and has made out a technically good case. If, for example, an applicant’s conduct is also found to be questionable, or if he has delayed, or if granting him relief would serve no useful purpose, the court retains discretion to refuse the application sought.
Of the above, one of the most important issues surrounds the time limit within which judicial review proceedings must be initiated. Following a recent amendment, the applicable rules of court now state that such proceedings must be commenced within 3 months from the date when grounds for the application first arose, although this can be extended by the court if it considers that there is good and sufficient reason to do so.
Some legislation prescribes even stricter time limits. For example, judicial review of decisions in certain planning matters must be brought within 8 weeks; decisions regarding the award of public contracts must be challenged within 30 days after the applicant was notified of the decision, or knew or ought to have known of the alleged infringement of the rules granting the award of such contracts; decisions made under the immigration and refugee legislation must be challenged within 14 days; and challenges to certain decisions made by the Irish Takeover Panel must be brought within 7 days.
Delayed applications will normally be refused, and, indeed, some cases brought within the time limit may still be dismissed if the applicant’s delay has caused or is likely to cause prejudice to a respondent or third party.
How do judicial review proceedings work?
Judicial review is a two-stage process. In the first instance, an application for ‘permission’ (so-called “leave”) must be made within the prescribed time limits, as set out above. Best practice is to take immediate action, particularly where the rights and obligations of others are also affected by the matter in question.
Therefore, before even knowing whether he will be permitted to bring his case, the applicant must nevertheless prepare court documents and set out in some detail what relief he is seeking, and on what grounds, and must go on to support his application with sufficient written and sworn evidence (in the form of an “affidavit”) from one or more persons, as relevant to the case. (In some cases, it will be necessary to support a case with the evidence of expert witnesses, such as economists, accountants, town planners and so on).
The intending applicant must then appear before the court and apply for leave on the basis of the papers he has prepared. Apart from certain exceptions, this is done without notice to the intended respondent, and without the participation of such respondent. The court may partially or wholly grant the leave sought, and may do so on some or all of the grounds put forward. If leave is granted, whether wholly or partly, because the case is “arguable”, the court documents (including the affidavits) will be served on the opposing party or parties, and they will have an opportunity to file papers in opposition, including affidavits in reply.
In the case of certain restrictive types of judicial review, such as those of certain planning decisions or the modified procedure involving the Irish Takeover Panel, there is not only a shorter timeframe within which to bring proceedings, but the application for leave must also be made on notice to the respondent, and leave will not be given unless there are “substantial grounds”, rather than just an “arguable case.”
Once the exchange of affidavits is complete, and any other matters arising in the case have been dealt with, the case will be assigned a hearing date. The matter will then proceed to a full hearing, but usually without oral evidence being given by witnesses (as their evidence will have been given on affidavit). The parties’ legal representatives will draw the attention of the court to the relevant portions of the affidavits and the documents appended to them, and make arguments and submissions based on these, and on the applicable law.
It is often forgotten that judicial review proceedings can also be heard in the commercial list of the High Court if the judge in charge of that list is of the view that the proceedings are appropriate for entry in the list, having regard to the commercial, or any other aspect thereof. If the case falls within the remit of the commercial list, with the case-management processes adopted there, matters will proceed much more quickly and efficiently than in the ‘ordinary’ High Court list.
Is there an appeal against the High Court’s decision?
Unless there is some statutory restriction on an appeal from the High Court decision to the Supreme Court in any particular case, any decision of the High Court on a judicial review may be appealed to the Supreme Court.