Readers may be familiar with the term, "judicial review" - if only because of its frequent appearance in the media.
A search for the term on the Irish Times website alone, for example, brings up over 3,000 hits. That frequency of appearance, in turn, is due to the variety of issues of importance that can be the subject of judicial review proceedings, often involving issues of principle between the individual and what we might call “the State”.
At the time of writing, for example, Cardinal Desmond Connell has just withdrawn judicial review proceedings against a Commission of Investigation into the handling of complaints of child sexual abuse against members of the clergy. In his proceedings, the Cardinal sought to restrain the examination by the Commission of documents obtained by it, but claimed by him to attract legal professional privilege. Apart from matters of this type, however, many readers might not, perhaps, have a clear idea of what, or who, else might be the subject of a judicial review action, or what such an action might be able to achieve, or might involve. In particular, readers may not appreciate how much ‘commercial’ judicial review takes place.
What is judicial review?
Judicial review is a procedure which enables persons to challenge decisions or omissions of public bodies, made in the course of exercising public functions.
In general terms, therefore, judicial review is not the type of action to bring if - to take random examples - you have been run over by a Department of Agriculture van, or if you believe that the Irish Sports Council has breached a contract it has with you. Whilst the issue you have in each of these cases is with a public body, the respective issues concern private, as opposed to public law, matters.
Why do I need to know about judicial review?
If you interact in any important way with public bodies, you need to know the basics of judicial review, given the critical impact decisions or omissions of such bodies will have.
Where you are aggrieved by a decision or omission of such a body, you may bring judicial review proceedings in relation to that decision or omission. However, it should be noted that any other procedures that are available to remedy the matter must usually be exhausted before bringing judicial review proceedings.
Against whom can I bring judicial review proceedings?
Any person or body – usually set up by means of legislation - exercising a public function is susceptible. Accordingly, judicial review will lie in respect of decisions of Government departments, licensing, disciplinary or planning authorities (as well as An Bord Pleanála [the Planning Appeals Board]), contracting authorities (in respect of contract award processes under public procurement rules), tribunals, inferior courts, regulators, or other persons or bodies making decisions by public or statutory authority.
Judicial review may lie against a private body if it is carrying out a public function. For example, judicial review proceedings were issued against the Irish Coursing Club Limited, 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 and effective type of action that is brought to:
stop a public body from doing something it ought not to do;
make it do something it has a duty to do;
stop it from doing something in an incorrect and/or unfair way;
set aside decisions made on foot of an incorrect and/or unfair process;
set aside decisions made without authority, irrationally or without supporting material; or
have the court declare the position at law regarding the above matters, and, in some cases, award damages.
The courts can also grant interim relief, such as an injunction or a “stay” (or freeze) on a decision, pending further order, or the outcome of the proceedings as a whole.
A decision that has been set aside by the courts is one that is void and of no legal force or effect, and thus leaves a ‘vacuum’. It is important to note that the court will not ‘re-make’ any decision, but will send it back to the original decision-making authority, so that the decision-making can be conducted in a proper fashion.
As you will see from the above list, the Superior Courts, in judicial review proceedings, can examine both procedural and substantive aspects of decision-making.
It is important to note, however, that judicial review proceedings do not challenge the merits of decisions. Rather, judicial review proceedings are brought on grounds that particular decisions are being, or have been, made beyond the powers of the body. In this regard, public bodies must apply the relevant law, as well as exercising only those functions conferred on them, and do so in a procedurally correct and fair way.
You cannot, therefore, challenge a decision simply because you do not like it, or believe it to be ‘wrong’, or capable of improvement. However, it is possible to challenge decisions that “plainly and unambiguously fly in the face of fundamental reason or common sense”, or in respect of which the decision-maker had before him “no relevant material that would support his decision.”
What do I need to look out for?
Judicial review has its own particular rules, practices and legal principles which include the following:
it involves a two-stage process, including an initial, ‘filtering’ stage, involving an application for “leave” (or permission) first being made to the Court. A reasonably significant battery of documents needs to be prepared, even before the case gets underway – including documents setting out the facts, the grounds for bringing the proceedings, reliefs sought and the evidence and documentation relied upon. In addition, if the case does not pass through the leave stage, it will not progress at all.
the timeframes for judicial review are much shorter than in ordinary proceedings, and are quite strictly observed. Judicial review proceedings must be launched promptly or at the earliest opportunity after grounds for bringing proceedings first arose, and, in any event, within three months of the grounds arising. The overriding obligation is promptness in the particular circumstances. Some types of judicial review proceedings must be brought even earlier than the general, three-month limit. For instance, judicial review of a public procurement decision needs to be sought particularly quickly, whilst in certain planning matters, it must be brought within 8 weeks, in immigration and refugee matters, within 14 days, and in Irish Takeover Panel matters, within 7 days.
judicial review proceedings are ‘paper-based’, in other words, are heard and determined on affidavit. This means that, usually, no witnesses are called, and there is no examination or cross-examination.
judicial review proceedings normally pass through the court system more quickly than ‘ordinary’ proceedings, and, moreover, can be heard in the High Court’s ‘fasttrack’ Commercial List, if the judge in charge of that list is of the view that the proceedings meet the criteria for entry into that list.
judicial review proceedings can only be commenced in the High Court.
Give me some examples of recent judicial review proceedings
MH & C is, or has been, involved in many sets of judicial review proceedings. For example, we have been involved in:
a Commercial Court challenge relating to the North/South Natural Gas Pipeline project;
judicial review proceedings brought by the State’s universal postal services provider, An Post, regarding proposed price increases for standard letters in Ireland, which resulted in the price being the current 55c;
judicial review proceedings relating to the award of the State’s third mobile telephony licence;
the challenge to the health insurance risk equalization scheme introduced by the Minister for Health and Children; and
the challenge to the constitutionality of laws under which a statutory minimum wage and working conditions were fixed for some 25,000 hotel workers. Finally, we instance a particularly stark example arising in the public procurement context, in which a tenderer for a several million Euro roads contract was held, in judicial review proceedings, to have been unlawfully and wrongly excluded from the tender process. Having established this, as well as the fact that it would necessarily otherwise have been awarded the contract (as it had put in the lowest price, and had been accepted as qualifying on all other criteria), it was in effect paid for building the road, without having to build it, as the contract had been awarded to, and was already beingperformed by, a rival bidder.