Locus Standi Flashcards
Locus standi
Locus standi refers to a party’s ability to demonstrate that it has sufficient reasons for the court to hear it on an issue pending before the court. It means a ‘place to stand’. It is an incredibly important doctrine in constitutional law, particularly in relation to constitutional litigation. Jus tertii refers to ‘right of a third party’ – this is when a person who is a third party attempts to justify an entitlement to standing.
Cahill v Sutton
it worth examining the early case of Cahill v Sutton (1980) which set out very distinctly why such legal doctrines are necessary. Here the plaintiff P challenged constitutionality of statute of limitations on grounds that complaint would be out of time (3 year limit) if injury was not discovered within that 3 years. Difficulty was that P was at all times aware of her cause of action. Argument she was making didn’t apply to her own circumstances.
Held that this was a jus tertii argument as it wasn’t based on P’s own circumstances. Held that a litigant is NOT entitled to make a case of hypothetical third party.
Court gives 3 main reasons for this: 1) To avoid running theoretical/abstract cases, 2) Stated that the purpose of the rule was to exclude the litigious person or the crank, the obstructionist, the meddlesome. Also stated standing rule would prevent political opposition to a legislative act being in the courts, having failed Oireachtas, 3) Court indicated that the rule was designed to prevent the negative consequences resulting from a possible vacuum in the wake of striking down legislation. Court did predict that exceptions could arise in interest of justice. E.g. cannot speak for themselves.
Mohan v Ireland
Mohan v Ireland (2019) is a more recent case which has equally provided clarification on locus standi and can be said to have taken guidance from the reasoning set out in Cahill v Sutton. Mohan was a case concerning a member of Fine Fail political party who was excluded from seeking a party nomination and wished to challenge the constitutionality of Electoral Acts. The High Court found that he failed to prove a link between the act and non-inclusion and as a result didn’t have standing (Not selected due to internal discretion or improper application). Court said the party would have been a better plaintiff. The court considered that although he was a member the party did not have a common purpose of opposing gender quotas. Objectives of Fine Fail did not include resisting gender quotas and therefore the applicant couldn’t rely on the membership to gain standing.
However the SC held that the applicant DID have locus standi for 3 reasons
1) as a candidate who sought election 2) as a member of Fine Fail and 3) as a citizen. The court held that as someone who had sought election he was entitled to challenge the legislation. HC had held that that Fine Fail would have been a better body so the court DID agree that the party WOULD have standing but that this didn’t deprive other persons who also had standing. The court noted that the claim and basis for any challenge by FF would not necessarily have been the same. ‘the purpose of the rule is not to identify the person with the best claim and prevent anyone else from bringing claim: it is to exclude those who have no possible interest and no claim to justify having the rule relaxed’. The word ‘interest’ is important here and provides further clarification on the rules around locus standi.
PP v Judges of the Dublin Circuit Court (2019)
PP v Judges of the Dublin Circuit Court (2019) is a key decision concerning the historic offence of gross indecency between men. The SC examines the law relating to the age of consent for sexual acts, the effects of a finding of unconstitutionality and the need for a litigant to have locus standi based on his or her own circumstances and not those of others. In this case the teacher claimed it would be unconstitutional to prosecute for alleged offence from the 1970’s. this was rejected by the Supreme Court in a 3 to 1 majority decision.
Noris v AG
It is clear from the decisions in both Moyan and PP that the rules of locus standi clarify that an applicant must have a particular interest in litigation in order to have standing and bring a case. Examples of jus tertii where a third party makes an argument in attempt to justify that their own rights are affected are: Norris v AG was a case which challenged criminalization of buggery on privacy grounds, HC held that he had locus standi to challenge act even though he had not been prosecuted. Both SC and HCV held that he could NOT raise arguments based on marital privacy because as a gay man he couldn’t marry.
Another jus tertii example is Reilly v Judge Patwell
concerned a challenge to strict liability nature of the Litter Pollution Act which made the occupier liable for failing to keep the exterior of a premises clean. They argued the act was unconstitutional and didn’t provide for defence of reasonable care HOWEVER he himself did not exercise reasonable care and under the jus tertii rule didn’t have standing.
Standing of companies
It is important to note that while PP and Moyan don’t necessarily address the standing of companies, there are in fact ways in which companies can litigate constitutional issues. 1) to protect their own constitutional rights and 2) they may invoke public interest standing and take cases with a wider public interest. Furthermore, unincorporated bodies have been considered by the courts in Construction Industry Federation v DCC (2005) where unincorporated trade association did NOT have standing to bring a case as the challenge could have been brought by ‘any’ of its members. Court did note that there may be circumstances where a rep body could bring case.
exceptions to the general rule that an applicant must have a particular interest in litigation.
Lastly, I must note that there are exceptions to the general rule that an applicant must have a particular interest in litigation. E.g. in Crotty v An Taoiseach Crotty was given standing to challenge the single European Act on the basis that no other litigant would be ‘more effected; was a matter that would effect all citizens equally. In Riordan v An Tanaiste, the case failed in its merits but the applicant was given standing to challenge the Taoiseach and tanaiste being out of Ireland at the same time as it noted the genuine concern that the executive could be ignoring the constitution which affected everyone equally. In SPUC v Coogan the court rejected that argument that only the AG could argue on behalf of the unborn. If the bodies have a bona fide interest they can take a case and may have standing.
another exceptional circumstance which may allow a seemingly ‘third party’ to bring a case is in environmental cases
Lastly, another exceptional circumstance which may allow a seemingly ‘third party’ to bring a case is in environmental cases. One may argue that an applicant cannot be directly impacted as they don’t own the surrounding environment. In Dunne for Minister for Environment the state argued that the plaintiff had no standing given the absence of personal interest. This was rejected by the court, ‘safeguard the national assets, including monuments of cultural and historical significance’. In Grace v An Bord Pleanala (2017) where there was a windfarm in a protected area, the applicant DID have standing given proximity to the area which resulted in a bona fides interest.
Locus standi reform
The rule on locus standi is to provide a mechanism for weeding out claims which are frivolous, vexatious or of no arguable substance at an early stage before resources and time are wasted. However, there is a risk that potentially viable applications are being prematurely rejected. An inconsistency in application will lead to arbitrary and unfair results. This stage in proceedings must provide an effective filtering process, with a threshold set that weeds out claims with no merit while at the same time not ruling out genuine claims.
It is argued that the locus standi rule has become unnecessarily complicated and evolved from a mere obstacle to a barrier.
