Summary of the Judgment
On 12 April 2021, Mr. Justice Humphreys gave Judgment in a motion to exclude some of the applicant's evidence in the case of Thomas Reid v An Bord Pleanála and Intel Ireland Ltd  IEHC 230.
The Judgment provides a useful overview (from a lawyer's perspective) of the nature of judicial review, the correct procedure for pleadings in judicial review and expands on a notable exception (in respect of EU environmental law) to the rule that an applicant must raise points with the decision maker first before they can raise those points in a judicial review.
A. Nature of Judicial Review
Humphreys J the following grounds that warrant leave for judicial review being granted:
1. Illegality - a decision can be deemed to be illegal if:
a. The decision-maker lacked jurisdiction to make the decision;
b. There was a breach of substantive legal provision - this includes an error of law or of legal interpretation having been made;
c. The legitimate expectations of the parties concerned have not been met;
d. A rule of law including EU Law or a statutory provision has been breached; or
e. The decision-making procedures in the administration of law are deemed defective.
2. Irrationality – this covers quasi-merits-based challenges (e.g. unreasonableness or disproportionality).
3. Procedural Impropriety – this deals with fairness of the procedure before the decision-maker. Specifically it requires:
a. A fair hearing being afforded to both sides;
b. The elimination of any and all biases within a decision making process; and
c. Sufficient reasons being provided for a decision.
B. Requirement that Complaints be Pleaded
Humphreys J summarised the basic rules regarding pleadings in judicial review, as follows:
a. A party can only pursue grounds set out in his or her pleadings;
b. A party cannot introduce new grounds of claim or opposition by affidavit;
c. Any new grounds or reliefs have to be sought by amendment of statement of grounds;
d. Any new points of opposition have to be sought by amendment of statement of grounds.
C. Requirement that Points Raised Before Decision-Maker
In addressing the issue of whether a point can be raised during a judicial review, which was not initially raised before the decision maker concerned, Humphreys J reiterated the legal position as established in Lancefort Ltd. v. An Bord Pleanála (No. 2)  2 I.R. 270. Following Lancefort, it is not permitted for an applicant to raise a point during the course of a judicial review without having first brought them to the attention of the decision maker.
However, Humphreys J. noted that the exception to this rule arises in respect of EU law. He referred to the decision of Commission v. Germany (Case C-137/14), which dealt with the access to justice provisions of art. 11 of directive 2011/92/EU on EIA and art. 25 of directive 2010/75/EU on industrial emissions (i.e. giving effect to the access to justice requirements of the Aarhus Convention). In that case, the CJEU found that a domestic requirement that “pleas in law” to be made to the court must first be made in the administrative process is not provided for in the directives which have the objective “of ensuring broad access to justice in the area of environmental protection”.
Humphreys J identified the Habitats Directive and the EIA Directive as being two such directives which do not require the applicant to have raised a point with the decision-maker prior to raising such a point before the High Court. He went on to state that this position is not strictly limited to such directives but may apply more generally to 'any similar access to justice provision in EU environmental law'.
Therefore, an applicant who has failed to raise a point before a decision-maker will not be barred from making such a point before the court where it relates to EU environmental law. The Judgment does note that such a principle does not take away from the need for a complaint to be properly pleaded and nor does it create an entitlement to introduce new evidence that would not otherwise be permitted.
D. Summary of When New Evidence Can be Admitted
Humphreys J helpfully summarised the instances in which an applicant should normally raise their point with the decision-maker first, as follows:
a. If the complaint is that the decision-maker didn’t consider something that she was not otherwise obliged to consider;
b. If the applicant complains about the lack of a specific procedure (e.g. oral hearing, cross-examination, etc), which should be positively asked for from the decision-maker;
c. If the applicant is aware of some fact giving rise to a possible claim of bias;
d. If the complaint is one of irrationality, then the material by reference to which the decision would be irrational has to be put forward during the process under review.
Humphreys J also set out a long list of other instances where evidence may be admitted during a judicial review where that evidence was not first put before the decision maker, and we have set out some of these as follows:
a. A complaint of illegality is jurisdictional or the applicant seeks to introduce new evidence regarding a fact going to jurisdiction or a breach of an essential procedural requirement;
b. The complaint is in respect of a procedural unfairness (i.e. excluding special procedures which were not originally requested);
c. The complaint is one of lack of reasons (but asking for reasons is to be encouraged);
d. The complaint engages the principle of access to justice in EU law (e.g. Art. 11 of the EIA Directive and Art. 25 of the Industrial Emissions Directive, or related fields);
e. The complaint is that the decision maker made an error of fact;
f. The applicant wishes to show what material was before the decision-maker;
g. New evidence is necessary to explain technical terms or processes;
h. New evidence is necessary to show a process of reasoning involved technical error;
i. A decision-maker had an independent duty to inquire, and relevant information could reasonably have been available;
j. The complaint is one of misconduct by the decision-maker;
k. The applicant has explained why they failed to raise the point at the appropriate time.
On foot of the principles set out above, Humphreys J went on to strike out a number of paragraphs from the applicant's (and the applicant's scientific expert's) affidavits and refused permission to file one particular affidavit.
Therefore, the Judgment lays down a firm marker in respect of the admission of new evidence during judicial review and in particular in respect of issues concerning EU environmental law.
The full Judgment can be found here.