Administrative Law Flashcards
1
Q
Non-Delegation Doctrine
A
- Article 28.2 - executive has power to administer laws and policy
- Legislature delegates power to the executive/administration so they have time to scrutinise legislation and debate in Dail
- Maintains the balance of SOP
- Administrators may have better expertise than the legislature
Naisiunta Leictreach:
1. Was there a usurpation of the power of the Oireachtas?
2. Has there been a trespassing on the powers of the Oireachtas?
3. Do policies and objectives ensure sufficient standards to ensure that what is taking place is regulatory, rather than legislative?
2
Q
Cityview Press Test
A
- Are all principles and policies needed to use the delegated power set out in the legislation?
- Are they filling in details or making laws?
- Draws a distinction between law-making and law implementation
- Legislature makes policy but someone else implements it
- Steward proposes that statutes serve as a ‘transmission belt’ to the agency, transferring democratic authority to administrators and constraining them.
3
Q
Laurentiu v Minister for Justice (1994)
A
Aliens Act 1935, Section 5(1)(e) gave the Minister so much discretion to the point that he could deport whoever he wanted according to this act, deciding on a case-by-case basis, except for a few named categories with immunity from deportation
HELD: It was more than a giving effect to the principles and policies contained in the legislation itself. It was an invasion of the power of the legislature.
4
Q
O’Sullivan v Sea Fisheries
A
It was permissible under EU law to have the points system and EU regulations give discretion to member states as to how to award points. The area of delegated power was not so broad as to trespass on the power of the Oireachtas.
5
Q
Leontjava and Chang
A
- Courts should be slow to set limits on how the legislature can make laws.
- Powers of the minister were INCORPORATED by REFERENCE.
- Administrators have a high degree of expertise.
6
Q
Grounds of Challenges for Review
A
- Ultra Vires
- Bad faith
- Improper purposes
- Irrelevant/Relevant Considerations
- Unreasonableness
- Irrationality
- Fettering
7
Q
Ultra Vires
A
Indeterminant - keeps evolving
1. Narrow: When the decision maker steps outside of the powers granted by the SUBSTANTIVE TERMS of the statute or delegated legislation
2. Broad: Where the decision maker MISAPPLIES the power granted by statute during the REASONING process - bad faith, unreasonableness, irrelevant/relevant considerations
3. Forsyth talks of modified ultra vires as a premise for admin law since it takes place against the background of a sovereign legislature. The legislature enacts law in a context and environment that assumes knowledge of the principles that have been developed by the court.
8
Q
Exercise of Executive Powers
A
- Bode v MJELR - Underlined the presumption that powers not explicitly bestowed upon non-executive organs are taken to fall within the remit of the Government.
- Prendergast v HEA - It is necessary for the Government to rely on statutory authority to exercise executive power such as foreign affairs, international arrangements and ex-gratia schemes. Donson underlines the unclear nature and foundations of executive power.
9
Q
Statutory Interpretation
A
McVeigh v MJELR - Powers conferred by statute can include, by implication, the right to take any steps reasonably necessary to achieve the statutory purpose.
1. There is a literal method of interpreting statutes using internal aids. External aids continue to be used.
2. There are incidental or complementary powers too
East Donegal Co-Operative - Words of the Act cannot be read in isolation. Their content is to be derived from their context. Examined against the objects of the Act from a study of the Act as a whole and its long title. Now there is increased legislative hyperactivity to confine decision-makers to an exhaustively stated set of considerations like s 84 of NAMA Act.
10
Q
Statutory Presumptions
A
- Presumption against interference with common law rights
- Presumption against interfering with property rights
- Presumption against taxing or revenue-raising powers
- Presumption against creating or extending penal liability by implication
11
Q
Improper Delegation of Decision-Making Powers
A
- When statutory power is vested in a specific individual and they delegate it (O’Neill v Beaumont Hospital Board)
- When a decision-maker relies entirely on the assessment of someone lower down in the operational hierarchy or on someone with no statutory role in the matter (Dunne v Donohue)
-> Genmark Pharma - Minister can seek advice but cannot rely on advice in the form of conclusions without reference to the basic material on which those conclusions were based.
12
Q
Error of Law
A
Looks at the body making the decision and asks whether the decision was legally permitted.
* Difficulty in distinguishing flawed factual determinations vs. incorrect legal interpretations
13
Q
Jurisdictional Error
A
If the decision-maker makes a decision outside the limits of the functions and powers conferred on them
Anisminic, Donoghue, Friends of the Irish Environment
14
Q
Ryan v Compensation Tribunal
A
Error of Law on Face of the Record
15
Q
Anisminic v FCC
A
Concerned legislation that clearly intended for the FCC to have immunity in its decisions.
Lord Reid established that jurisdictional errors can involve a whole range of mistakes made by a tribunal which can render a decision ultra vires. It gave the court the ability to review a whole range of errors made by administrative tribunals.
IRELAND IS CURRENTLY IMPLICIT OF ANISMINIC BUT HAVE NOT OPENLY STATED IT
16
Q
Donoghue v O’Donoghue
A
Favoured the Anisminic approach that all errors are treated as going to jurisdiction and there should be no more debate between jurisdictional and non-jurisdictional errors.
17
Q
Friends of the Irish Environment
A
Implicitly adopts Anisminic.
About Climate Action and Low Carbon Development Act 2015 which sets out the state’s objectives to help the environment.
Argument that there was not enough specificity in the plan
HELD: The plan was not compliant with the statutory requirements so it was outside of jurisdiction. This case followed the narrow jurisdictional requirement. but implicitly adopts Anisminic
18
Q
Cases on Error of Fact
A
- Ryanair Ltd v Flynn - Very high threshold before the Courts will intervene against an error of fact
- AMT - Material significant of the error of fact overpowered the deferential concerns of the court. Reliance on an incorrect fact would have led to the rejection of asylum application
- Richardson - Courts would not review errors of fact that led to “part findings” of the tribunal.
19
Q
Mix of Error of Fact and Error of Law
A
SK v MJELR
Courts can quash an administrative decision where there have been serious errors of fact such that, taken cumulatively, they amount to an error of law or where the decision maker assumes a jurisdiction they do not have
20
Q
Non-statutory Power
A
The GCHQ case shows that the court can review bodies not set up by statute. The court look at the nature of the power.
DPP v Fagan - Courts was uncomfortable with an implied statutory power for police to ask people to stop but they have a common law power to do this.
21
Q
Principles of Good Administration
A
Protects public from arbitrary government
Fair procedures, presumptions in case law that anything done by public bodies must be in line with Constitution
Dawn Oliver - legality, fairness and rationality
22
Q
Bad Faith
A
Western Fish Products - not fair to a public authority that it should be found to have acted in bad faith when it had made an honest mistake. High threshold for bad faith. Requires personal fault going beyond errors of fact or law. Lack of honest or genuine attempt to undertake the task.
O’Mahony v South Cork Board - refusal of application was attributable to past clashes between applicant and respondent. Bad faith found.
23
Q
Improper Purposes
A
Using a statutory power that was intended for one purpose to achieve a different outcome/purpose. Onus on applicant. Practically difficult to prove.
1. Hoey v MJELR
Statutory obligation to repair courthouse but minister discontinued it. Minister not allowed to evade obligation.
TEST: WHETHER THE PURPORTED REASON FOR THE EXERCISE OF DISCRETION WAS MERELY A COLOURABLE DEVICE TO ACHIEVE AN UNLAWFUL OBJECTIVE
2. Kennedy v Law Society - whether the improper purpose materially influenced the decision-maker
24
Q
Mix of Permissible and Impermissible Purpose
A
Cassidy v Minister for Industry and Commerce
A permissible purpose co-existed with an impermissible purpose -
Minister’s order set a max price for the sale of alcohol to control price increase (permissible purpose) and to ensure they obeyed voluntary arrangements in the future (impermissible purpose) but it was allowed
25
Uncertainty
1. Ashbourne - insufficiently defined terms
2. Ali v MJELR - Uncertainty created by the muddled reasoning of the advisor trumped his argument that broader determinations permitted his decision.
26
Relevant/Irrelevant Considerations
1. P&F Sharpe - Decision-maker must have regard to all relevant and legitimate factors which are before it and must disregard any irrelevant or illegitimate factor which might be advanced
2. Scrollside - The weight given to the different factors is quintessentially a matter for the decision-maker.
MATERIALITY TEST: A factor may be relevant but so insignificant that a failure to take it into account could not have materially affected the decision. It has to have had a bearing on the outcome. There is a de minimis threshold to this ground of review.
3. State (Cussen) v Brennan - Extra credit given for knowledge of Irish which was not a listed qualification not permissible
4. Luximon - Right to private and family life under Article 8 ECHR is a relevant factor that overlays statutory schemes and should be considered,
27
UK Unreasonableness
1. Wednesbury Unreasonableness - decision was one that no reasonable person could have taken... A decision which is arbitrary and not founded on reason
2. Budgacay -> fundamental rights = sub-Wednesbury anxious scrutiny. Threshold should not be lower when rights are being restricted.
3. Hammersmith and Fullam -> decisions of a policy-laden, esoteric or security-based nature = super-Wednesbury
28
UK Irrationality
GCHQ Case - a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at it.
Looks at 1. illegality 2. irrationality 3. procedural impropriety
29
IRISH Unreasonableness/Irrationality
O'Keeffe --> technical decisions. Applicant must establish that the decision-making authority had before it no relevant material which would support its decision.
Keegan wrapped up in Heaney proportionality as in Meadows --> fundamental rights. Whether decision ‘plainly and unambiguously flies in the face of fundamental reason and common sense.’
30
Proportionality
- Used by ECHR and ECJ
- Heaney v Ireland and de Freitas
1. Must be a sufficiently important legislative objective to justify limiting a fundamental right
2. Means used to achieve an objective must be rationally connected to the objective
3. Minimum impairment of rights - looks at less restrictive alternatives. Effects on rights must be proportional to objective
Huang (UK) --> balance the interests of society with those of individuals and groups
- In IRELAND, some judges use a balancing test and others use the structured test. EVOLVING!!
31
Meadows
- You use proportionality to check for unreasonableness in the Keegan sense. Whether the decision maker is acting in defiance of logic and common sense!!!
- There is ambiguity about whether lack of proportionality is enough or whether it has to be disproportionate to quash
- Denham J says lack of proportionality is enough
- Fennelly J says there is a threshold to cross
- Biehler suggests that Meadows relied more substantially on notions of institutional competence than democratic legitimacy as a basis for its conceptual justification.. an attempt to respond to the criticisms of the minority
32
Reasons for Deference
1.Expertise
2. Institutional competence
3. Democratic legitimacy
4. Constitutional reasons and separation of powers
I.S.O.F. - Minister has a duty to balance opposing rights and interests of the individual vs. the interests the State want to safeguard
33
Proportionality in Immigration Cases
AAA v MJELR
1. Decision-maker applies proportionality test
2. Courts can review it in the context of the Keegan standard. Decision must be proportionate on its effects of fundamental rights.
3. Onus on applicant to establish that decision was proportionate
34
Burke v Minister for Education
Elijah Burke complained about a refusal by the minister to provide more calculated leaving certificate grades to home-schooled students.
It was an exercise of executive power under Article 28.3 of the Constitution.
HELD: Courts did not apply the clear disregard test. The structured proportionality test applies to legislative and executive power in the administrative context. It is the standard of review.
35
Benefits of Proportionality
1. Structured review for courts - restrains the subjectivity of the Courts.
2. Replaces vagueness of unreasonableness
3. Proportionality can be applied with varying levels of intensity - the Courts can regard how critical the objective is
36
How do we deal with Cases involving EU Law but not fundamental rights?
Word Perfect Translation Services
- Standard of Review: whether the decision is vitiated by manifest error. Focus on individual decisions rather than the overall process.
- If, once understood, it is clear that it is indeed an error, then the test is satisfied
- If fundamental rights are involved, we use the proportionality test.
37
What is Fettering?
Failure of an administrator to exercise discretion under the powers conferred to him by statute
Example: if they enact a policy under a statute but never do away with it.
- CSB, MISHRA
CSB - Evidence showed that the decision officer always followed the recommendation of the medical assessor that assessed whether an applicant should be allowed the grant
HELD: No evidence of a lack of willingness to exercise discretion. Since it was medical decision, he needed advice but did not consider himself bound by it.
38
Benefits of Policy
1. Non-arbitrariness because it constrains the decision-maker in a way
2. Equal treatment
3. Transparency and consistency between different applicants
39
Mishra
Indian doctor refused a certificate of naturalisation because of a policy
HELD: It was a blanket policy and the use of fixed rules must not fetter discretion
Note: It is rare when policies are not permitted since they are normally advisory rather than mandatory
40
Minister Delegating Power
1. Carltona - Ministers can delegate their duties to a responsible official within the department but they must be 1. responsible and appropriate for the level of the decision and have the 2. requisite expertise and experience.
2. Devanney - enables ministers to function efficiently in a complex modern govt. Minister is still responsible for what has been done.
3. WT - If the Oireachtas wants the minister to exercise the power themselves, they have to use the word ''personally'' since this doctrine is well-founded and well-established
41
Decisions excluded from administrative discretion
State v Curran - limited review of DPP decisions
A and Others - cannot review whether there was a national emergency but can review the reaction to public emergency
Ryanair Holdings - investigatory decisions or processes undertaken by the police (highly sensitive, complicated, identity of others)
42
Kerins
While the constitution confers privileges to ensure freedom of debate, it does not necessarily follow that there is an ‘absolute barrier’ to launching a claim against the Oireachtas.
Proceedings cannot be brought which would breach the constitutional privileges and immunities.
43
Substantive vs. Procedural Fairness
Substantive fairness ensures powers are not exceeded
Procedural fairness provides individuals with a fair opportunity to influence the outcome of the decision and so ensure the decision's integrity.
Dellway Investments states that it is Implicit in Article 40.3.1 of the Constitution which guarantees basic fairness of procedures.
44
Why do we need Procedural Fairness?
1. Provides decision-makers with information they might not otherwise receive
2. Applicants can influence the outcome of decision through participation
3. Promote objectivity and impartiality
4. Serve the purpose of protecting human dignity and shows that justice has been done and seen to be done
5. Increase the likelihood of an accurate substantive outcome
Note - it does not guarantee the open-mind of an administrator or that it is free from bias
6. Regulates the actions of public authorities
7. Ensures appropriate standards in public decision-making are adhered to
8. Ensures confidence in decision-making
45
Principles of Procedural Fairness
1. Diversity of Functions of public power.
Kelly - rule against bias must take account of different functions being performed.
Bord na gCon - Different cases may, legitimately, involve different procedures and compliance with fair procedures is not a box-ticking exercise.
2. Certainty and Precision
3. Accountability
4. Efficiency and promptness in decision-making
5. Respect for fair procedures vs. too much formality in decision-making
Biehler - decision-makers with appropriate expertise make decisions within these areas of expertise. Superior Courts exercise a supervisory role.
46
Rule against Bias
Nobody should be a judge in their own course.
Justice must be done and should be seen to be done.
1. Actual bias - deliberately setting out to hold against a particular party
2. Perceived Bias - presumption of bias where the decision-maker has a personal interest in the matter he is deciding
3. Apparent Bias - if a reasonable person might have apprehended that decision-maker might be biased. Requires proof of involvement, association or interest and that it is reasonable to expect decision-maker to be influenced.
47
Rule Against Bias Test in UK
Porter v Magill - whether REAL POSSIBILITY OF BIAS in the tribunal.
High threshold
48
Rule Against Bias Test in Ireland
Orange Communications obiter - TEST is whether there is a reasonable apprehension or suspicion that the decision-maker might have been biased.
KELLY - the application of the rule must take account of the 1. nature of the tribunal, the 2. different functions being performed, the 3. legal circumstances of the decision, and the 4. legal characteristics of the decision-maker.
Whether administrative, quasi-judicial or judicial
Radio Limerick One - member accused of bias was in the Commission but did not take part in the decision-making. In media, people are often well-acquainted with each other to have the expertise to sit in the Commision but Commission must take reasonable steps to act in a manner free from bias.
49
Automatic Disqualification
Automatic Presumption of Bias arises because of the nature of the decision maker’s interest - usually of financial or proprietary nature in the outcome
UK -->
Dimes - shareholder in the company so disqualified.
Pinochet - non-financial interest rendered disqualification. Criticised by Olowofoyeku and in Locabail.
Ireland --> Goode Concrete - we try to steer clear of the principle of automatic disqualification. We use reasonable suspicion test.
50
Personal Relationship or Animosity (Rule against Bias)
Donoghue v Cork County - Bad feeling between judge and accused family.
Dillon - applicant's party was seeking re-election to the Dail in same constituency as minister so minister did not allow distribution of brochure
Dublin Wellwoman Centre - a pre-determined outlook might give rise to a reasonable suspicion of bias. The perception of personal/professional association. Judge as a chairperson made a submission to the govt regarding availability of abortion information
51
Professional Relationship (Rule against Bias)
1. Bula - judge gave respondents legal services in the past but any link must be ’cogent and rational’
2. Kenny v TCD - rule against bias extends to witnesses. This case was at an extreme end of the spectrum and applied the most favourable interpretation of the facts from the appellant’s point of view,
3. O'Ceallaigh - Where the relationship concerns a witness or person, not a party, who does not have a stake in the outcome of the proceedings, the threshold to establish objective bias will necessarily be higher. They must have the capacity to influence the mind of the decision-maker.
52
Recusal Principles
Balance maintaining confidence in judicial impartiality vs. lengthy and unnecessary retrials
O'Driscoll - The reasonable suspicion of bias test is objective and if judges stand down too readily, it will reduce public confidence. Applicant must establish recusal.
53
Participation in more than one stage
1. O'Donoghue - individual made a complaint of professional misconduct, then sat on the council that suspended him.
2. Irish Hereford Breed Society - Individuals that sat on the sub-committee RECOMMENDING the expulsion also sat on the full Council that made the decision expelling him.
3. O'Callaghan - Stage 1 did not make any findings of fact but said whether he had a case to answer so the decision was not set aside
4. Facebook Ireland - no general principle that the same person cannot be involved at different stages of an inquiry or adjudicative process. Is the process as a whole fair?
54
Prejudgement of Issues
P v McDonagh and Beaumont Hospital Board - if a decision-maker makes a statement which is reasonably capable of being interpreted by an objective and informed bystander as implying that pre-judgment exists, then that is a factor to be weighed significantly in the balance
55
NB - Can a client request a different person to hear the case?
Normally yes but sometimes it is not possible
McAuley - Garda's trainee contract was terminated which violated fair procedures. Getting different committee members to do a fresh inquiry would deprive the commissioner of the power and responsibility to terminate the contract again if they concluded after the investigation that the trainee was unsuitable to continue employment because of misconduct
Likely a generous measure of the necessity doctrine
56
Necessity
1. where all members of decision-making body would normally be disqualified
2. where quorum cannot otherwise be put together
3. O'Byrne - plaintiff could not have recourse in any other court
4. O'Neill v Beaumont Hospital Board - entire board not tainted by prejudgment but if they were all prohibited from deciding the question, there was no other machinery by which it might be determined.
57
Waiver
Party continues with proceedings without protest, being aware of facts which entitle him to object.
1. Bula - high level of knowledge required for waiver.
2. Corrigan - applicant was fully being apprised of circumstances and still failed to make a complaint, so was estopped. Minority said it is not competent for an individual to waive a rule of public policy (Goudkamp)
3. O’Neill v Irish Hereford Breed Society - applicant present at certain stages of the proceedings regarding arbitration but not at the actual decision-making process regarding his expulsion so he did not waive his right.
Note - smell of foul play so only awarded 50% of costs. (Biehler).
58
Audi alteram partem
1. Dellaway Investments - Hear the other side. Parties must be given a fair hearing. Inherent part of fair procedures. Justice is even-handed and the scales of justice are not weighted too much in favour of one party.
2. Mallak - ensures access to justice and that fair procedures safeguards rights
3. Kiely - Applicant did not get a chance to challenge a written report admitted to and relied on in the decision-making process. Natural justice not observed when “scales of justice are tilted against one side.” Quasi-judicial tribunals may act informally but may not act in a way that imperils a fair result.
4. Rowland - whether, taken as a whole, the ultimate conclusion can be sustained having regard to the principles of constitutional justice. Many errors of procedure can be corrected by appropriate measures before the process ends.
59
Prior Notice
1. Fact that an inquiry will be taking place
2. The time and location (if applicable) of the inquiry
3. The grounds of complaint - to prepare an effective defence
4. State (Gleeson) and Garvey - Need notice of charges, reason for removal, and opportunity to defend oneself
60
Oral Hearings
Likely necessary to achieve a just result:
1. where a hearing would resolve facts at issue that influence the outcome of the proceedings and
2. where credibility is involved.
A) Galvin - consider 1. the nature of the inquiry 2. the rules under which the decision-maker is acting 3. the subject matter 4. whether an oral hearing is requested. Biehler adds 5. consequences to individual
B) J&E Davy - Was hearing necessary for fair adjudication of issue?
Efficient and quick process vs. protecting rights
C) Geraghty - Information obtained outside hearing should not be considered.
D) Coleman - an oral hearing could not solve the fact at issue as bank teller had no memory of interacting with the client
Note: UK (Osborn) focuses more on what is at stake and outcome
61
Witnesses/Cross-Examination
Re Haughey - Right to call witnesses and cross-examine must be afforded when to deny this would prevent fair hearing. Witness needed to have his counsel cross-examine those making accusations against him since the accusations could get him convicted and impair his right to good name.
62
Representation
Tarrant Principles:
1. Nature of tribunal
2. Gravity of charge
3. Potential consequences - may not be as relevant under McKelvey
4. Whether difficult issues of law and very complex facts involved - big emphasis in McKelvey
Referred to in Ireland and UK
63
Cases for Representation
1. McKelvey - it was not a clear case where it could be said that a fair process could not ensue without legal representation.
TEST: Looks at the Cumulative effect of factors which might lead in exceptional cases to finding that legal representation required. Move from emphasis on potential consequences.
2. Burns - seriousness of charge, points of law, capacity of prisoner to present case, procedural difficulty, need for reasonable speed in adjudication, need for fairness. Legal representation should be the exception not the rule.
3. Flanagan v UCD - UCD plagiarism case. Applicant should have been allowed representation by someone of her choice. Fact-specific.
4. Boyhan - rights were adequately safeguarded by the limited representation. There was no need for full legal representation.
5. Scariff - lack of representation at the inquiry stage did not imperil a fair result. Initial inquiry was inquisitorial, not adversarial so he was not in peril of conviction at that stage.
64
Can Breach at Initial Stage be Cured?
1. Is procedure as a whole fair?
2. When does order become effective? If it is after the final stage, shortcomings of the initial stage might be overlooked
3. Is there an opportunity to make representations before decision takes effect? May cure defects in initial stage
4. Does the second stage in the process involve a de novo hearing? Second stage identifies facts but first stage says is there even a case at all.
65
Breach at Initial Stage Cases
1. Gammell - opportunity to make representation at the second stage was enough. Two stage process regarded as one.
2. Scariff - Defects at the preliminary stage could be cured where applicant was not in peril of conviction at this stage
3. O'Ceallaigh - midwife that suffered reputational effects before final stage. She was not aware of preliminary stage complaints. Breach not cured.
4. Crayden fishing - in a commercial context, it is appropriate to look at process as a whole and ask whether it was fair to applicant.
66
Duty to Give Reasons
Some statutory schemes mention the adequacy of reasons
1. FOI Act 2014, section 10
2. State (Daly) - To determine whether decisions made pursuant to legislation are in compliance with fair procedures, you need to know why they are made. Courts need reasons to review if decisions are made in good faith, reasonably, using relevant facts, etc.
3. State (Creedon) - obligation to provide reasons applies independently of any question of review
4. Christian - Must have access to a sufficient amount of information to enable an assessment of lawfulness to be made. Biehler believes it marks a trend in favour of individuals. Difficult for a litigant on whom the onus lies, if they're bringing judicial review to get
access to the kind of information. More focus on the adequacy of reasons.
5. In UK (Doody), there is no general obligation to provide reasons for administrative decisions but sometimes, the Duty might arise
67
Legitimate Expectations
Holds public authorities to account, upholds rights, avoids abuse of power, prevents public authorities from reneging on their promises
1. Is there a procedural or substantive benefit?
2. Is knowledge or detrimental reliance necessary?
Paponette - Onus is on applicant then burden shifts to respondent
68
Legitimate Expectations in UK
Arises where there is an:
1. EXPRESS PROMISE given on behalf of public authority, or
2. Existence of REGULAR PRACTICE which the claimant can reasonably expect to continue.
1 is a stronger basis
Nadarajah - England have advocated the application of a proportionality test to the balancing exercise which must be carried out.
69
Legitimate Expectations in Ireland
Cannon - whether in all the circumstances it would be UNFAIR or UNJUST to allow a party
RESILE from a position which at the time gave rise to a legitimate expectation in the mind of another that that situation would continue
and might be acted upon to his advantage.
70
Conditions to Establish Legitimate Expectations
Glencar
1. Representation or position adopted - express or implied
2. Addressed to identifiable person/group which acted on the faith of representation (reliance/knowledge is suggested)
3. Created reasonable expectation that public authority will abide by representation to extent it would be unjust to resile from it (detriment)
Sometimes, an expectation is fulfilled through an opportunity for consultation or for the making of representations.
71
Representation of Legitimate Expectation
Webb v Ireland - Metal deterctor case. Unqualified assurance was an integral part of transaction which the State could not go back on - EXPRESS
Philips v Medical Council - IMPLIED Representation may suffice in limited circumstances
72
Custom/Practice as a Basis for Legitimate Expectations
- More difficult to rely on custom practice than representation
Willey - practice of allowing Mr Willey to import cars rebate which he got TWICE. When you have a statutory scheme with certain requirements and you have a custom that does not follow the requirements, you cannot allow the legitimate expectations of that custom to trump the requirements of the statutory scheme or it would be ultra vires
73
Number of People Representation is made to
R. (Rashid) v Home Secretary - Policy in public domain. Whether the claimant knew of the policy that he later relied on is not relevant. Ireland might insist on detrimental reliance but note Lett.
Bhatt Murphy - For a substantive expectation to arise, the promise/practice must constitute a specific undertaking, directed at a particular individual or group. The larger the group, the likelier the supervening public interest will be a justification.
74
Knowledge/Detrimental Reliance
1. Rashid - Whether the claimant knew of the policy that he later relied on is not relevant. Ireland looks at transactions as the rationale so they may be more likely to insist on knowledge and detrimental reliance.
2. Webb v Ireland - closer link with estoppel
3. Lett - once legitimate expectation was established, court has authority to give whatever relief the equity of case demanded
4. Sherry - Detrimental reliance was not a condition precedent.
5. Fakih - focused on the expectation which might reasonably have been created by the undertakings given by the authorities.
6. Re Finucane - detriment as a prerequisite could only arise for substantive expectations
Elliott states that detrimental reliance is not necessarily a key factor but may well play a role in determining the key question of what's fair and what's unfair.
75
Legitimate Expectations for Substantive Benefits
1. Ruddock - important to fair dealing that a promise or undertaking given by a minister as to how he will proceed should be kept.’
2. Coughlan - 8 people promised a home for life in a facility for the long-term disabled. Would frustrating the expectation be unfair? Would a different course be an abuse of power?
Fairness means fairness of outcome
3. Fakih - in SOME cases, expectation may be no more than procedural fairness
4. Power - BTEA case. Substantive legitimate expectation upheld.
5. McGrath - Posiibility of damages instead of enforcement for substantive benefit.
76
Public Interest Considerations
1. Curran - early retirement scheme for teachers. Declining economic circumstances outweighed legitimate expectation.
2. Atlantic Marine Supplies - public policy requirements are much more likely to be present and are much more likely to weigh heavily for substantive benefits.
3. Cromane Foods - awarding damages might not be appropriate for public policy reasons because it might have the same effect as substantive outcomes
77
Minimum Equity Approach
Lett - give such remedy as the equity of the case may
demand. The Courts can ask is something less fair if expectation is disproportionate to detriment or reliance.
Tries to get a fair outcome.
78
Hempenstall
Law should not trammel the exercise by a minister of his statutory functions even if, in the light of new information and advice, he exercises them in a manner contrary to an earlier statement of intent.
79
Who can be subject to Judicial Review?
Ireland
I) D'Arcy - decisions of administrative and quasi-judicial tribunals and lower courts using statutory or common law powers.
II) Beirne - 1. Decisions excluded - where duty being performed is manifestly a private duty and where right to make it derives solely from contract or consent
2. Where the function ordinarily seen as within the public domain, decision excluded if power solely and exclusively derived from an individual contract made in private law.
III) Bane - look at nature and source of power.
IV) Geoghegan - decision by Institute of Charters Accountants in Ireland not subject to review
V) O'Donnell - employment of a fire station officer within public domain and reviewable.
VI) O'Connell - decision by racing regulatory body within public domain. They were EXERCISING SIGNIFICANT POWER with legislature's APPROVAL. Must look at realities of power exercised not superficialities. Monopolistic powers.
VII) E.G. v Societies of Actuaries - creature of private law which depends on the agreement of its members on payment of a subscription
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Who can be subject to Judicial Review?
UK
Datafin (UK) - look at the source and nature of the panel's power. Judicial review possibly applied to bodies exercising public law functions, duties, supported by public law sanctions.
Bramforth Critique - jockey club had a monopoly.
Pannick says judicial review should lie for de facto monopolistic powers.
Ireland is less strict with who can be subject to judicial review.
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Forms of Remedies Available
1. Certirorari - ultra vires or error on face of record
2. Prohibition - restrains
3. Mandamaus - compels
4. Declaration - position of parties
5. Injunction - restrain/compel
6. Damages (Order 84, rule 25)
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Convert judicial review proceedings into plenary proceedings
- Order 84 Rule 27(5) & (7) RSC 2011
- EG v Society of Actuaries
* Requirement that leave be obtained
* Stricter time limits
* Some further limitations in statutory schemes
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Application for leave to apply for judicial review
Order 84 Rule 20
- First step to judicial review is to apply for leave: filters out claims which are trivial or without merit
G v DPP - burden on applicant is light. Must show:
1. They have made out an ARGUABLE CASE in law and...
2. Sufficient interest
3. Facts averred in the affidavit sufficient
4. Application made within time
5. judicial review is only effective remedy or more appropriate method of procedure
May include other things
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Why does Order 84 provide such a short timeframe
Shell E&P Ireland - of bringing finality to questions concerning the validity of public law measures, early certainty so people can order their affairs on the basis that a measure, valid on its face, can be relied on
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Does Order 84 Provide Exclusive Procedure in Convention (non-statutory) Judicial Review?
Many Statutory schemes have an exclusive procedure like planning permissions
1. O'Donnell - Order 84 does not provide an exclusive procedure for persons seeking declaratory relief in matters of public law. The concern that it abuses the process of the Courts is not a real danger. Applied Order 84 time limits by analogy. Not desirable that the form of action should determine the relief granted.
2. McGrath - Rules apply by analogy where in substance seeking type of relief ordinarily sought by judicial review. Applicants pursing both will be faced with application of Order 84 safeguards BY ANALOGY.
3. Hosford - some cases where a failure to proceed by way of judicial review will represent an abuse of process.There are some safeguards like applying for leave.
4. UK Approach (Mackman) does not allow plenary when judicia; review could have been done.
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What if a client has serious doubts as to whether to take a review?
Ask what is the nature of the complaint and what does the client want to achieve?
Judicial review might more appropriate for questions about the legality of a decision.
If Serious doubts about whether you can bring judicial review and that you care would be struck out --> can still bring a plenary action in Ireland, but the safeguards will apply, like time limits.
You can't many years later take a plenary action.
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Discretionary Nature of Remedies
1. Relevance of context - quashing criminal convictions will likely get remedy
2. How serious is the misconduct/delay?
3. Sometimes, Gravity of errors
Vozza - Conviction without jursidciton. Entitled to certiorari despite lack of candour and good faith.
Abenglen - planning permission granted with different conditions. In civil cases, remedy on discretionary basis especially if relief is not necessary to protect rights. Normally where rights are infringed, there is entitlement to relief ex debito justitiae unless unless conduct disentitles applicant to relief. Mentions applicants with no real interest in proceedings (Doyle). Must consider the circumstances of the case, why certiorari was sought, applicant's conduct, adequacy of ALTERNATIVE REMEDIES. A simple appeal can rectify some errors of law or administrative legislation might provide some ways to deal with it.
O'Keeffe - hints that even in a criminal context, relief is discretionary and fact-specific.
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Conduct as a Factor influencing Relief
1. State (Furey) and State (Vozza) - Certiorari granted despite lack of candour
2. Oboh - deportation case. Must be a link between wrongdoing and remedy being sought. Did the untruths materially influenced the case?
3. Henegan - withheld info at an earlier stage. Lack of candour not a bar. Upholds the integrity of the judicial process rather than punishing applicant.
4. Murtagh - Also an obligation of candour on respondent, due diligence in investigating
what material is available, relevant disclosure. Common aim of maintaining the highest
standards of public administration. Duty of candour is largely self-policing.
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Delay as a Factor Influencing Relief
1. Order 84, rule 21- within three months from date when grounds first arose.
2. Order 84, rule 21 - Courts may dismiss application to extend time if applicant’s delay has caused or is likely to cause prejudice to a respondent or a third party.
3. De Roiste - “time is more of the essence, more urgent, in judicial review proceedings”
4. Shell E & P Ireland Ltd - desirability of bringing finality to questions concerning the validity of public law measures
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Requesting Time Extension
1. Order 84, rule 21 - requirement of (a) “good and sufficient reason” and (b) the circumstances that caused delay of the application for leave was outside applicant's control or could not reasonably have been anticipated by the applicant.
Most case law is from pre-2011 but is still useful.
2. O'Donnell - applicants were agitating and writing letters to resolve the matter through the help of their public representatives over delay period. Must establish reasons which explain delay and afford justifiable excuse.
3. Power - Attempts to obtain redress through political pressure constituted good reason.
4. De Roiste - nature of order, applicant's conduct, respondent's conduct, effects of order under review, steps taken by parties after order, effect on third parties, public policy, etc.
5. O'S - addition of word sufficient has likely increased threshold. No chance of success in bringing judicial review against the Residential Institutions Redress Board until a decision made by the Court of Appeal which would improve his prospects of success. Courts can consider recent developments in jurisprudence. In most instances where a court has been satisfied of good and
sufficient reason to extend time, it will also be in a position to make a positive finding under sub-rule (3)(b).
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Alternative Remedy
1. Abenglen - Court ought to take into account all the circumstances including motive and the availability of an alternative remedy (O'Higgins CJ). Henchy J was stricter and wanted to bar relief through judicial review since the applicant did not exhaust an adequate alternative statutory remedy,
2. Memorex - applicant did not get relief since they could have appealed. Biehler says this case is probably not one to follow.
3. Mythen - applicant could NOT be denied judicial review just because they could have appealed.
4. Abenglen looks at the nature of the challenge and McGoldrick uses a middle-ground approach that looks at the merits of an appeal vs. relief through judicial review.
5. Stefan - appeal lodged but not open. a pending appeal is not a bar but a factor to be considered. Court has discretion to achieve a just solution.
6. O'Donnell - appeal began. A weighty factor but not determinative. This was manifestly a matter for appeal.
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What happens if you seek appeal instead of a judicial review and you lose your appeal?
NAA - Courts should ONLY intervene to grant certiorari where there is SPECIAL CIRCUMSTANCES making a LATE INTERFERENCE necessary to do justice to the parties.
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Statutory vs. Conventional
1. Stricter time limits - weeks instead of months
2. Standard to obtain leave is more onerous - ‘substantial grounds’ for contending that the decision is invalid (need for legal certainty)
3. More restricted availability of an appeal to the Court of Appeal
4. Often prescribes exclusive procedure in a limited number of cases and sets out safeguards
5. Some have notice requirements
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Interest Requirement
Order 84, Rule 20 - requires SUFFICIENT interest
1. Lancefort and McGimpsey - jurisprudence where public interest parties have been
adjudged to have standing.
2. Mulcreevy - decisions of questionable validity should not escape scrutiny because an applicant is not personally affected but the Court will not entertain vexatious proceedings
4. Grace - Planning scheme. Decision either has or is imminently in danger of adversely affecting their interests so as to cause or potentially cause injury or prejudice having regard to the scale and nature of the proposed development and the proximity or contact of the challenger to or with the area potentially impacted by the development
Some statutory schemes have raised bar to SUBSTANTIAL INTEREST
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Inter Partes Application for Leave
Normally ex parte
Order 84, rule 24 - Court may request inter partes
O'Brien - different opinions but majority said a higher standard of proof is not appropriate than arguable case test or it would lead to the Court virtually deciding the case
Note: in inter partes hearings, it will be more difficult to satisfy the arguable case standard because they will be challenged by the respondent.
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Notice Requirements
Order 84, rule 22 – notice of proceedings must be served on ‘all persons directly affected’
Third parties can be enjoined if they feel they are affected (BUPA Ireland Case).
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Frequently Used Planning Schemes
Section 50 of the Planning and Development Act 2000 - CERTAIN decisions made by planning authorities and An Bord Pleanála.
Section 5 of the Illegal Immigrants (Trafficking) Act 2000 - aspects of immigration and international protection legislation & related Statutory Instruments. Exclusive procedure.
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Planning and Development Act 2000
Courts should consider issues arising, likely impact of the proceedings ‘or other good and sufficient reasons’ if requesting inter partes.
Sufficient interest requirement
8 weeks from the date of the decision with extension possible
Kelly - Must consider:
1. Length of the delay
2. Whether 3rd party rights might be affected (Connemara case)
3. Legislative policy in imposing strict time limits
4. Blameworthiness
5. Nature of issues involved
6. Merits of case
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Illegal Immigrants (Trafficking) Act 2000
1. Notice requirement (application for leave) for points of law of exceptional public importance or in the interests of justice considering likely impact of the proceedings on the respondent or another party
2. 28 days from the date the person is notified. Extension provision is phrased in a negative way. Biehler does not attach significance to it.
Substantial interest requirement for leave
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When can Leap Frog Appeals Happen for Statutory Judicial Review?
1. Leave of the High Court
2. High Court certifies that its decision involves a point of law of exceptional public importance and
3. Appeal is desirable for public interest
Grace - Restrictions on appeals to the Supreme Court without a High Court certificate does not prevent a party from pursuing an appeal to the SC now provided the constitutional threshold has been met. More difficult to certify an appeal in the HIgh Court.
