Judical review question;

junkyard

How many times can a judge or a court case result be judically reviewed?

maidhc

junkyard wrote:

How many times can a judge or a court case result be judically reviewed?

"Judicial Review" means "Review by a Judge" rather than "A Judge being reviewed". It is normally used to review the law behind the decision of those in official authority.

The best example of it in operation is the spire in dublin:
Here a losing designer (a Mr. O Nuallain) sought a judicial review of DCC's decision to grant planning for the spire without requiring an Environmental Impact Assessment as O'N contended was required by legislation. The court found in favour of Mr. O Nuallain, and stated the planning permission was invalid for want of an EIA.

The result: DCC got the EIA, the spire was built, O'Nuallain delayed the inevitable but clarified the situations in which an EIA is required.

If you mean how many times can a court case be revisited, with a view to it being over ruled then the answer is as many times as one chooses (except where it relates to Art. 26?)

focusing

It’s not usually a review of the law, but whether a particular decision maker acted within the law.

District Court and Circuit Court judges are susceptible to JR in the High Court, though most CC cases can be appealed to the High Court anyway.

If you thought a sentence in the DC was made ultra vires (beyond legal authority) you’d seek a JR on the legal powers of the DJ, but you’d still have an appeal to the Circuit Court on the merits of the case.

You have to get leave of the High Court to bring a JR case, and you get one bite of the cherry, as it were. A particular decision can really only be challenged once.

focusing

Article 26 (the refferal of a Bill to the Supreme Court by the President) isn't a Judicial Review in the legal sense of the term.

And it can only apply once to each Bill, since Bills upheld by the Supreme Court have to be signed into law by the President as soon as possible after the SC decision.

maidhc

focusing wrote:

It’s not usually a review of the law, but whether a particular decision maker acted within the law.

That is what I meant to say. Most people understand a JR to be an appeal on the substantial issue, in particular residents angry with a decision of An Bord Pleanala.

I don't think this is what Junkyard is talking about though.

dermot_sheehan

Judicial Review is the jurisdiction exercised by the High Court in reviewing the decisions of inferiror courts and public decision making bodies. It does so by 3 writs, certiorari, mandamus and prohibition. Certiorari is basically an order to the decision making body to send the records of the decision to the court for review of the legality of a decision. Mandamus is an order requring a public body to do something, and prohibition is an order prohibiting an inferior court from dealing with an issue for lack of jurisdiction.

A decision can be illegal if a body exceeded it's powers granted by law (ultra vires). A public body can not act unconstitutionaly. It's been held that the constitution contains certain norms of constitutional justice that decision making bodies must follow (Re Haughey). These include audi alteram partem (the decision making body must hear the other side), nemo iudex in causa sua (never a judge in your own cause, the decision making body must be impartial and appear to be impartial). Other concepts of fair procedures include in a hearing, a right to cross examine witnesses, and call your own witnesses.


A decision can also be declared illegal for unreasonableness. This heading of illegality however has been restricted greatly in this jurisdiction in (O'Keefe v. An Bord Pleanala), basically for a decision making body to have acted unreasonably, it must have reached a decision that a decision making body could not reasonably make. A very high standard.

Basically to sum up, Judicial Review is a court reviewing the legality of a decision, not the merits of the decision itself. A decision could be illegal due to procedural defects, want of jurisdiction or due to it being incredibly unreasonable.

junkyard

Thanks for the info everyone. Just one more point though, if some one looses a case, can they keep appealing the judges decision by getting him and/or the case judicially reviewed every time they loose? If this is the case this case will be tried and tried time after time with a different judge? Sorry if this sounds stupid but I'm trying to get a hold on how the legal system works.

Gobán Saor

Not really. Say a Bord Planala decision is judicially reviewed by the High Court and the decision is not overturned. That decision of the High Court can be appealed to the Supreme Court but there's nowhere else after that.

Problems can arise though when the process to be reviewed has multiple stages each one is subject to JR. Effectively the JR process can be grossly abused by litigants to whom money doesn't matter and to whom costs are not a disincentive. This happens when the applicants are either very rich or very poor! Good examples are repeated challenges to the interim rulings of Tribunals of Inquiry (by the rich) or to major road projects (by the poor). In either case, the applicants can secure huge delays running to many years simply by seeking JR of every step in the process and appealing every defeat to the Supreme Court. In many cases, this can result in the litigants achieving their effect by successfully delaying the process rather than winning a case on its legal merits.

junkyard

Ok thanks for that, I think I can see where this is heading alright. Is there any way a situation like this could be stopped?

sh_o

You have to obtain the leave of the court before you can seek judicial review. This acts as a safeguard and would generally stop actions without merit from proceeding.
You can also get the leave set aside if it is granted in your absence. Other than that if there are sufficient grounds for judicial review, then there is not a lot you can do about it.

dermot_sheehan

There are some other ways the High Court prevents judicial review from being abused, other then the aforementioned requirement to seek leave.


For Example, the High Court would not entertain an application until all administrative appeals have been heard. For example in a planning application, you could theoretically appeal the decision to an bord pleanala and have the county council's decision judicially reviewed. The High Court doesn't allow this though, you must first pursue your administrative appeal.

maidhc

It is also difficult for residents to use a company to judicially review a decision since Lancefort, as its interpretation of s360 of the Companies Act 1963 seems to require security for costs.

I don't think JR is an abused procedure TBH. People like to paint it as such at times, but I really don't think it has any basis in reality. e.g. the whole carrickmines issue has more to do with the County Council acting arrogant than anything else.

focusing

Do you have any case law on this? Throws up some interesting scenarios.

gabhain7 wrote:

For example in a planning application, you could theoretically appeal the decision to an bord pleanala and have the county council's decision judicially reviewed. The High Court doesn't allow this though, you must first pursue your administrative appeal.

sh_o

Take a look at Stefan v. Minister for Justice - The Supreme Court held that the availability of an alternative remedy or appeal does not bar the applicant from taking judicial review proceedings where there has been a breach of fair procedures. - Effectively, if the original decision was so 'unfair' then you are entitled to go the JR route without exhausting your appeal - you are entitled to a fair first 'hearing'

dermot_sheehan

focusing wrote:

Do you have any case law on this? Throws up some interesting scenarios.

State (Abenglen) v Dublin Corporation [1984] IR 384 where the Supreme Court held where the state had:

... a self contained administrative scheme", the Courts should not intervene by way of judicial review when the statutory appellate procedure was adequate to meet the complaint on which the application was grounded"

There is however divergent authority, in P & F Sharpe Limited v Dublin City and County Manager [1989] IR 701 the Supreme Court held that the applicant was entitled to a proper decision at first instance, without the trauma or expense of an appeal.

Barr J. in High Court in
Tennyson v Dun Laoghaire Corporation [1991] 2 IR 527 followed Abenglen

McGuiness J. discusses the law in Bula v. Flynn [2000] IEHC 170 which is available online here: http://www.bailii.org/cgi-bin/markup.cgi?doc=/ie/cases/IEHC/2000/170.html

junkyard

What if the whole case hinged around the sale of an item of which there was a warranty issue. There was no proof that the item was sold by the defendant who was being sued. Could the case be thrown out as there was no proof of sale?

dermot_sheehan

junkyard wrote:

What if the whole case hinged around the sale of an item of which there was a warranty issue. There was no proof that the item was sold by the defendant who was being sued. Could the case be thrown out as there was no proof of sale?

A sale generally would not involve judicial review since only "public bodies" can be reviewed. Warranty would be covered by a breach of contract claim. It must be taken within 6 years of the breach, and if litigated to a conclusion, can not be relitigated.

Gobán Saor

maidhc wrote:

....I don't think JR is an abused procedure TBH. People like to paint it as such at times, but I really don't think it has any basis in reality. e.g. the whole carrickmines issue has more to do with the County Council acting arrogant than anything else.

I disagree. While the O'Keefe case sets a high standard to be met for a JR application to succeed, it does NOT stop applications of very little merit from being brought and being litigated to tortuous finality. In so doing, the applicant can achieve a success merely by virtue of delay as the Courts will generally "freeze" the status quo and stay the public body from acting while the case is underway. Clearly, this is capable of serious abuse.

maidhc

Gob&#225 wrote: »

I disagree. While the O'Keefe case sets a high standard to be met for a JR application to succeed, it does NOT stop applications of very little merit from being brought and being litigated to tortuous finality. In so doing, the applicant can achieve a success merely by virtue of delay as the Courts will generally "freeze" the status quo and stay the public body from acting while the case is underway. Clearly, this is capable of serious abuse.

Certainly capable of abuse, but at least in the context of planning, by the time the locus standi requirments of s50 of the Planning and Development Act 2000 have been met, and a case built it is only the most directly affected and concerned will actually ever make it to court.

Mind, in the context of planning, I am of the opinion the public authorites are the greatest abusers of the system. In particular Cork City concil need a good few JRs IMO!

Incidentally there was a question about the constitutionality of s50 in this years Fe1 exam. Interesting question!