Consultation Paper on Judicial Review Procedure

By Órla Gillen, Monday, 20th January 2003 | 0 comments
Filed under: 2003.



Press Release

Law Reform Commission issues Consultation Paper on Judicial Review Procedure

The Law Reform Commission on 20 January 2003 launches its Consultation Paper on Judicial Review Procedure. This paper undertakes a review of a number of procedural aspects of the present law on judicial review, and the Commission makes several provisional proposals for reform.

Judicial review is not an appeal process; rather, it is the exercise by the High Court of its supervisory jurisdiction over lower courts, tribunals and administrative bodies and individuals. Judicial review proceedings are directed at the process of decision-making rather than with the merits of the decision in question. In Ireland, there are two separate regimes of judicial review: "conventional" judicial review proceedings, and the more recent statutory regimes.

Conventional judicial review proceedings have always been part of the law in this country. However, there has been a trend in more recent times to create separate statutory schemes of judicial review in respect of certain policy-sensitive areas, such as planning law and immigration law. A combination of the growing numbers of such statutory schemes, and an increase in applications for judicial review under the conventional scheme, has led to a marked increase in the total number of applications being made to the High Court each year. The Commission's examination of this area was made all the more pertinent by this increase in the volume of applications in recent times, and the resulting pressure on the High Court in dealing with such applications.

Many of the issues arising in relation to conventional judicial review proceedings are also considered in the context of the statutory schemes. One of the most important issues addressed is whether there is sufficient justification for the abolition of the leave stage in judicial review proceedings; at present, in both conventional and statutory judicial review, it is necessary to make an "application for leave" to seek judicial review. This leave stage is designed to act as a filter, weeding out weak or vexatious claims, thereby saving enormous time and expense for the public bodies who might otherwise be required to mount a costly and lengthy defence. Although some questions were raised as to the efficiency of this leave stage, the Commission ultimately concludes that there is, as yet, insufficient support or justification for the abolition of the leave stage. However, the paper makes various recommendations intended to alleviate some of the complaints in the area of judicial review, with particular consideration given to the increase in the use of case management in addressing some of these issues. Other matters the Commission considers in relation to both conventional and statutory judicial review are the appropriate tests to be applied to the application for leave, and the important issue of the time limits to be applied in judicial review proceedings. The present law in relation to costs in judicial review proceedings is also considered, at both the leave stage and the substantive hearing.

The consultation paper also examines the important issue of case management in judicial review. This refers to the manner in which the court system operates in relation to such matters, as the efficient disposal of judicial review proceedings is of great importance to public bodies whose actions are challenged. Delay in the conclusion of judicial review proceedings can significantly affect the public, by effectively "freezing" public bodies from acting in relation to the decision being challenged, for example, in long planned road building schemes or the granting of licences to mobile phone companies. It has been the practice for some years now that the President of the High Court nominates certain judges to deal with judicial review, with the aim of ensuring the efficient and consistent administration of such matters. The Commission considered the possibility of establishing a separate  "Administrative Court" for dealing with judicial review, although the tentative conclusion was reached that there would be little benefit from establishing such a separate division of the High Court for dealing with judicial review. Also considered are proposals for a number of procedures which might aid the efficient administration of the judicial review list, including the possibility of imposing time limits on parties for the exchange of documents once leave has been granted, and also the possibility that, with the consent of the judge hearing the case, not all affidavits be opened in court, as this can sometimes involve lengthy and relatively unproductive process.

Finally, arising from the Commission's examination of comparative material on judicial review throughout the Commonwealth, the Commission examines whether legislative reforms should be enacted in this jurisdiction to remove the final element of distinction between the various traditional orders sought in an application for judicial review. Such reforms generally provide for a single unified procedure wherein an application is made for "an order of judicial review". Although the Commission provisionally recommends that such reform not be undertaken, a debate would be welcomed on the merits and demerits of creating a unified order of judicial review in this jurisdiction.

The area of judicial review involves a delicate balance between the rights of applicants with a grievance and the rights of public bodies (and hence, the public at large) to carry out those tasks with which they are charged without unnecessary interference. Throughout the consultation paper, the Commission acknowledges the difficult task of striking the appropriate balance, and was aided throughout by the generous advice of a cross-section of distinguished legal practitioners. In the light of the impact of judicial review on the public, the Commission welcomes submissions on any aspect of this consultation paper; the closing date for such submissions is 30 April 2003.

For further information, contact the Law Reform Commission, Tel: 6377600; Fax: 6377601; Email or visit our website at