The much-anticipated report of the Government’s Review Group, entitled the “Review of the Administration of Civil Justice”, was published by Minister for Justice, Helen McEntee, in December 2020. Chaired by former High Court President, Mr Justice Peter Kelly, the Group’s review commenced in March 2017. Its remit was to examine the current administration of civil justice in the State with a view, amongst other things, to:
Reducing the cost of litigation, including costs to the State
Improving procedures and practices so as to ensure timely hearings, and
Removing obsolete, unnecessary or over-complex rules of procedure
We look at the Group’s particular recommendations for the reform of procedure in the area of judicial review. The most significant of these relate to:
Restricting litigants from pursuing or being granted judicial review in cases of ‘technical’ errors or omissions, where these can be rectified on application to the relevant decision-maker
Restricting those who will have sufficient standing to apply for judicial review in any given case
Requiring a stronger case before a person will be given High Court permission to do so
Amending the procedures to be adopted for progression to a speedy trial by reforming the content of pleadings and promoting concision, as well as by tightening up timelines and incentives for compliance with court directions and orders, and
Making practical reforms to the Rules of the Superior Courts, such as by designating clearly and expressly the point at which time stops running for the bringing of proceedings
Conscious of the ‘reports-gather-dust-on-shelves’ phenomenon, the Group has made straightforward recommendations with a view to easy implementation. The Review Group considered and made recommendations on the following issues:
The requirement for High Court permission or “leave” to apply for judicial review
The threshold for granting such eave
Locus standi i.e. “standing”, or sufficiency of connection with the matter at issue
Measures to address delay and inefficiency, and
Applications for judicial review in cases where particular statutory schemes, such as the planning scheme, modify the ‘default’ judicial review procedures
The requirement for leave to apply for judicial review
The Review Group recommended that applicants for judicial review should continue to have to seek the permission of the High Court before they can commence proceedings.
This is a significant recommendation given the view expressed to the Group by the current President of the High Court, Ms Justice Irvine, that:
“the reality is that the leave requirement adds little or nothing to modern judicial review practice, save perhaps that it represents a burden on the judicial system and adds to costs”.
However, in order to increase the effectiveness of the leave requirement, which is intended as a ‘filtration process’ to weed out unmeritorious cases, the Review Group recommended that the threshold for granting leave should be increased.
The threshold for granting leave
The Review Group has recommended that the current “arguable case” requirement to obtain leave be replaced by a requirement to demonstrate not only substantial grounds but also that the claim has a reasonable prospect of success.
It is not clear that this would necessarily lead to a more effective filtration of judicial review cases. Ms Justice Mary Irvine has, for example, commented that the existing threshold of “substantial grounds” in planning judicial review cases has not operated to weed out the commencement of weak cases. However, it may be that adding the further express requirement of having to demonstrate a reasonable prospect of success may achieve better results than a “substantial grounds” criterion operating on its own. Indeed, the Group has asked that consideration also be given to incorporating the proposed ‘reasonable-chance-of-success’ criterion into statutory judicial review remedies generally.
An applicant for ordinary, non-statutorily-modified judicial review must currently establish that s/he has a “sufficient interest in the matter to which the application relates”. The Group recommends, in line with previously statutorily-modified judicial review schemes, that all applicants for judicial review should now be required to demonstrate that they have a substantial interest in the subject matter of the decision that is challenged.
The Group recommended that statute preclude a person from seeking judicial review in cases involving certain factors. These factors include, for example: clerical or typographical errors, unintentional slips or omissions, or text or omissions of text in a determination or order, or in material relied on in making a determination or order, unless s/he had previously applied to the body concerned for a rectification, and had wrongly been refused.
In cases where judicial review was in train in the High Court, the Group recommended that the Court be given the power to require the applicant to apply for a rectification where it was satisfied that would be an adequate alternative to granting judicial review. As a complementary matter, the Group recommended that the primary legislation underpinning adjudicative or decision-making regimes in the administrative law field should expressly confer a general jurisdiction on the decision-makers and tribunals concerned to re-open decisions to correct errors of the type referenced. This would overcome the obstacle that a decision maker might feel unable to re-open and rectify a matter once decided on, on the basis that the existing law might consider the decision-maker to be functus officio and not to have the power to do so.
Measures to address delay and inefficiency
The Group placed a particular focus on delay and inefficiency in the course of the judicial review process.
Amongst its recommendations, it suggested that the requirement to have actually made an application for leave for judicial review within three months of the cause of action accruing be amended to a requirement that the motion papers for the application be filed within that period, fostering less of a ‘rush’ to make, and hear and determine, the application within the three-month time-limit.
In terms of preparation for the substantive hearing, the Group recommended a tightening of post-leave procedures to ensure a speedy trial. These procedures include greater use of:
- “Wasted cost orders”; that is to say, court orders requiring legal practitioners to pay costs personally where they have unprofessionally failed, for example, to adhere to time limits; and
- “Unless orders” to ensure compliance with court directions; that is to say, orders providing that certain consequences will arise - for example, a dismissal of a claim, or liability for costs - if a procedural direction of the Court is not complied with, and complied with on time.
After the initial return date, the Review Group recommended that there be greater prescription in the setting of directions, with a six-week adjournment being granted for the lodgement and delivery of opposition papers with a possible further adjournment of two weeks. The Review Group also directed that if, after two weeks, opposition papers have not been filed, the case should be remitted to the Judge’s List for further measures, as appropriate. Once pleadings are closed, the case should be given the next available date for hearing. Submissions would then require to be delivered within two weeks of pleadings closing by the applicant, and then within a further two weeks by the respondent.
In order to overcome the current practice of populating the pleadings with unwieldy facts and grounds, and then of verifying these by way of formulaic affidavit, the Review Group recommended that the Court Rules be amended. The amended Rules would provide that there be a specific heading for facts in the statement required to ground the application for judicial review, and that these facts should then be set out in the grounding affidavit in a narrative manner.
Similarly, in the opposition papers, the Review Group recommended a change in the Rules such that, where no specific new facts or matters were being alleged by the respondent, a general traverse or denial of the claims should be acceptable. In turn, the statement of opposition should only address any material facts or issues disputed, and incorporate any matters positively relied on, such as time, discretion, or alternative remedies. The Group recommends that an affidavit verifying a statement of opposition should only be necessary if there is a distinct plea as to a new fact that is not otherwise in evidence.
The Review Group has also recommended that it be open to both the applicant and the respondent to seek to apply for a “leapfrog” appeal to the Supreme Court, bypassing the Court of Appeal - as opposed to the current position where this procedure is available to the applicant only.
The recommendations of the Group are practical ones that could be implemented relatively easily, with minimal legislative change, resources or cost. Overall, it is anticipated that these would result in a pronounced streamlining of the judicial review process. Genuinely-affected parties could bring only substantially-grounded claims standing a reasonable chance of success. Cases would not come to court, or applicants would be sent back by the court, if the matter involved a ‘technical’ error which could be reopened and rectified by the decision-making body. Pleadings would be more concise, and court procedures would ensure better progression of matters to a hearing, resulting in cases being determined more quickly. There is also some prospect for cost-saving; however, it is unclear to what degree the recommendations will result in a major saving of costs.
The Report in full can be accessed here
The content of this article is provided for information purposes only and does not constitute legal or other advice.