Introduction
A substantial amount of the work I have completed is in the area of human rights and while I try to negotiate settlements in as many cases as I possibly can, I often have to threaten legal action and by far the most regularly used weapon in these circumstances is judicial review. If a person fears that a public body, normally a government department or a local authority, has abused or exceeded their powers, we can make an application to the court to review the actions taken by this body and if necessary injunct them or seek a number of other orders.
The Decision Making Process
It should be noted that perhaps the most critical point in all of this is that judicial review is concerned not with the decision actually arrived at but with the decision making process. If you are unhappy with a decision of a court or a public body, then generally speaking you have a right to appeal. If however the decision making process is flawed, then judicial review may be the appropriate remedy. The first thing you have to ascertain is whether or not you should be appealing the decision itself rather than attempting to have it judicially reviewed. The purpose of judicial review is to ensure that the individual is given fair treatment by the relevant authority. Statutory powers, no matter what they are, must be exercised in accordance with the requirements of natural and constitutional justice and the courts have wide powers to review the procedures and the manner in which they are exercised.
We will now set out what we regard as the main features of judicial review.
1. Natural Justice
The most common ground on which we challenge decisions made by a public body is that the decision was taken without hearing the other side properly and we often take cases where it clear there has been an element of bias.
The right to hear the other side means that there must be fair procedures. Generally speaking this means that the person at risk must be given an opportunity to meet the claim against him. Quite often there will be written procedures that must be followed and if they are not followed then a remedy exists. If there are no written procedures then the actions taken must be fair and reasonable and must afford the party at risk an opportunity to know what the case is that is being made against them and must give them an opportunity to respond and give his side of the story.
We recently succeeded in a High Court action where a District Judge had made certain negative comments about our client, which led us to believe that he had pre-judged the case against him and that he was biased against our client. We applied for and obtained an injunction as part of a judicial review to prevent the judge hearing the rest of the case against our client. Judge McKechnie, who heard the case, said that while the judge may not have actually been biased against our client, justice not only has to be done but it has to be seen to be done and in that particular case, he felt that there was a properly grounded fear that the judge had already made his mind up about the case and was biased against our client.
Judicial review is also possible where a decision is taken by a public body and flies in the face of fundamental reason and common sense. You will note that this does not say that the decision must not be wrong and must not be unreasonable, the burden is much heavier than that. The decision, if it is to be challenged on the basis of unreasonableness must be shown to have completely disregarded fundamental reason or commonsense.
2. Legitimate Expectation
This applies where, for example a public body might have a well established practice of dealing with a particular set of circumstances and if a person relies on that knowledge and the public body subsequently refuses to follow the previously existing practice, then judicial review may remedy the situation. If you have a legitimate expectation that you will receive a certain benefit or a certain privilege then the court will protect that legitimate expectation. The best known example in Irish law involved a case where a disabled man had purchased certain cars and because of his disability he was refunded VAT and excise duty. This was the regularly established practice until August 1987 when he was refused a refund of excise duty following his latest purchase. Judicial review proceedings were subsequently taken and the High Court decided that Mr. Wiley in that particular case had a legitimate expectation, based on the well established practice over several years, that excise duty would be refunded in his circumstances.
The case was appealed and the Supreme Court overturned the decision of the High Court, saying that the man in question only had what the court described as an expectation, not a legitimate expectation. His main problem was that if the Revenue had refunded his excise duty, they would have been acting outside their own powers on that particular occasion.
There is therefore a narrow line between an expectation that a public body will continue to carry out certain actions and a legitimate expectation that can result in a successful judicial review application. As a general rule however if you can show that a public body have a long standing practice and they unreasonably refuse to follow that practice in a particular case, then judicial review may be an appropriate and successful remedy.
We recently acted in a case where we argued that our client, who were running a marina, had a legitimate expectation that the relevant local government department would act in a certain way. In that case the principles set out in Glencar Exploration v. Mayo County Council were discussed at length. In that case it was established that:-
(i). The public authority must have made a statement or adopted a position amounting to a promise or representation, express or implied as to how it would act in respect of an identifiable area of activity. This is the representation.
(ii). The representation must be addressed to an identifiable person or group of persons affected by the representation and that person or group must have acted on the strength of the representation.
(iii). The actions of the public body must be such that the affected party expected that the public body would abide by the representation to the extent that it would be unjust to permit the public authority not to do so.
In the past the courts have been reluctant to grant an applicant the benefit he was seeking in a particular case. They are far more inclined to simply state that the party is entitled to fair procedures and nothing more. This however may change as future case law develops.
3. Proportionality
This concept is similar to the concept of reasonableness.
A good way of describing this test would be to say that the measures adopted must not be arbitrary, unfair or based on irrational considerations.
The law in Ireland at the moment seems to follow the rules set down in the case of Heaney v. Ireland in which the court stated:-
“The objectives of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionately test. They must:
(a) Be rationally connected to the objective and not be arbitrary, unfair or based on a irrational considerations,
(b) Impair the right as little as possible and
(c) Be such that their affects on rights are proportional to the objective.
This test can be interpreted widely or it can be interpreted narrowly. This is where the circumstances of any particular case will take on huge importance.”
4. Sufficient Interest
It is well established that if you are applying for a judicial review you must show that you have “sufficient interest” in the matter. This condition can be interpreted liberally so as to permit representative challenges to the legality of administrative decisions by groups not directly affected by the decision in question. A person who claims to be a victim of a particular provision must show that there is a reasonable likelihood that the measures complained of will be applied to them.
In David Norris’s case against Ireland, the European Commission on Human Rights did not regard a representative body like the National Gay Federation as a victim of the Irish law prohibiting homosexuality but in Open Door Counselling Limited and Dublin Well Women Centre Limited v. Ireland, which involved an injunction granted by the Irish Supreme Court to restrain the provision of information by the applicant organisations about abortion facilities outside Ireland, both the Commission and the court found that all women of child bearing age could claim to be victims since they belonged to a class of persons likely to be adversely affected by the injunction.
5. Jurisdictional Error
This applies where for instance a judge hears a case against the defendant and the statute in question says that the penalty is a fine of up to a €1,000. If the judge in addition imposes another penalty such as disqualifying the person from driving or imposing a prison sentence, then the document reflecting this order would be regarded as suffering from a jurisdictional error and it could be challenged and set aside.
6. Discretionary Nature of Remedies
The whole area of judicial review is regarded as a discretionary remedy, which means that while on the face of it, you may feel that the facts of particular case will give rise to successful judicial review, the judge does have degree of discretion, which could result in the refusal of the order sought. We have acted in cases where we have sought to quash a conviction on the grounds that there were improper procedures and the judge has refused to quash the conviction and instead simply referred the matter back to the original court for a rehearing. The particular circumstances of that case persuaded the judge that the appropriate discretionary remedy was to have a rehearing rather than to simply quash the original conviction.
7. Remedies Available
In judicial review proceedings, the main remedy we seek is certiorari, which is an order preventing a body from exceeding its jurisdiction. This remedy is attractive because it normally applies in cases where there is a substantial degree of urgency involved and quite often an application can be made at very short notice to quash a particular decision pending a full hearing of the action. If a normal set of plenary proceeding were issued, the decision would remain in place until a full hearing took place which could take 2 or 3 years or even longer.
An order could be quashed if you can show:
(i). The relevant body such as a government department or a local authority has exceeded its jurisdiction and therefore had no legal authority to make the decision.
(ii). There is an error of law clearly apparent from the order or the determination of the public body.
(iii). That the basic elements of natural justice have not been followed.
(iv). There is clear evidence of bias.
(v). The body has acted fraudulently.
If a public body, including a court or a tribunal has acted outside its powers then an order of prohibition can be sought which is similar to an injunction.
Most of the cases we take involve actions where we are seeking to prevent something happening or trying to set aside orders or decisions made by public bodies. There are many cases however where we take actions seeking the relief of mandamus. This is an order directing a person or a public body to perform a duty rather than to stop them from performing an act. We have acted in many cases on behalf of members of the Traveller community concerning accommodation difficulties. Often we will seek orders for mandamus to seek to compel a local authority to provide proper facilities for families living in poor conditions on halting sites. Alternatively we might seek orders of mandamus to compel a local authority to provide accommodation for a Traveller family on the side of the road.
8. Procedure
Unlike other legal remedies, you must first of all obtain consent from the court to actually issue judicial review proceedings. These applications are generally made by the applicant alone (this is called an ex parte application) and the grounds for the application are set out in a comprehensive affidavit. If the court grants the order sought, then quite often an interim injunction will be granted to prevent a certain action happening and the court will then put the matter in for first hearing perhaps a week or so later and this will give the other side an opportunity to be represented and to put their side of the case to the court.
If you are seeking to quash a decision, you must bring your application within six months of the date of the decision you are complaining about. We would always advise clients that you should never wait the full six month period as it is generally expected that you should move as quickly as possible in cases of this nature.
FAQs
Q. I urgently need an injunction. How quickly can I get an order?
A. Depending on the circumstances of your case, you can get an injunction within 24 hours. We have obtained injunctions on a Saturday night by calling to a judge’s house to obtain the order and we have obtained injunctions on Christmas Eve. Injunctions can be obtained any time of the day and at any time of the year provided the matter is one of genuine urgency.
Q. Can you explain to me in simple terms what I have to prove in order to get an injunction?
A. You have to show that there is a serious issue to be tried, that a monetary award would not be an adequate remedy and that the balance of convenience favours the granting of an junction.
Q. If I apply for judicial review or an injunction how long will it take and how much will it cost?
A. Quite often an injunction application is made within a very short period of time and as this brings all parties to court, the entire issue is often resolved within a number of weeks. However, if the matter is fully contested, it can take 18 months to two years. Costs in injunction cases are generally high. They would start at around €5,000 plus VAT and outlay (mainly barrister’s fees) and they can climb substantially if the matter proceeds to a full court hearing. If the case proceeds to a full hearing, costs will climb if the case is likely to take a number of days or if there are major issues in relation to discovery. However if you win your case, your costs should be paid by the other side.