Judicial Review or Plenary Summons

johnnyskeleton

If you are challenging the constitutionality of a decision and one of the main reliefs sought is a declaration of incompatability should you judicially review the decision or is it more appropriate to issue a plenary summons?

There is case law pointing to either view, but I think that Judicial Review is more appropriate as it seems to me that it is more specific, more urgent, and prohibits the challenger from raising hypothetical ancillary challenges (Cahill v. Sutton).

Tom Young

Well if we look at Henchy J in Cahill v Sutton [1980] IR 269:

"The primary rules as to standing in constitutional matters is that the person challenging the constitutionality of the statute ....must be able to assert that, because of the alleged unconstitutionality, his [interest] have been adversely affected, or stand in real or imminent danger of being adversely affected by the statute" or decision.

In that case the Plaintiff challenged the constitutionality of S.11(2)(b) of the Statute of Limitations Act. She was found to be championing the putitative rights of a third party and she was aware of the timing issue.

I guess I think that Judicial review is open in cases where the decision is taken in lower courts and a right is infringed. The administrative law rules and precedents as outlined in the Rules of the Superior Courts can show that Judicial review is not open in the High Court, but will be heard in the High Court, whereas Constitutionality is generally a feature of the Supreme Court stemming either from appealed JR rulings or indeed direct appeals.

johnnyskeleton

Tom Young wrote: »

I guess I think that Judicial review is open in cases where the decision is taken in lower courts and a right is infringed. The administrative law rules and precedents as outlined in the Rules of the Superior Courts can show that Judicial review is not open in the High Court, but will be heard in the High Court, whereas Constitutionality is generally a feature of the Supreme Court stemming either from appealed JR rulings or indeed direct appeals.

The High court has original jurisdiction to try issues of constitutionality and to find statutory provisions incompatible with the constitution, doesn't it?

The only exception, as far as Im aware, is where there has been a reference by the President under Article 26.

Tom Young

johnnyskeleton wrote: »

The High court has original jurisdiction to try issues of constitutionality and to find statutory provisions incompatible with the constitution, doesn't it?

Indeed, but the issue is I was eluding to is a problem with a judicial review in the High Court. Where that can't be judicially reviewed save for appeal to SC.

The only exception, as far as Im aware, is where there has been a reference by the President under Article 26.

Agreed.