JR costs proposal to spark ‘significant debate’
Lawyers at McCann FitzGerald say that an apparent attempt by the Government to disincentivise judicial-review (JR) proceedings is likely to become the subject of “significant debate”.
The comments come in an analysis of the JR sections of the General Scheme of the Civil Reform Bill, which was published earlier this month.
The bill sets out that a remedy under judicial review may be granted only where the following conditions are met:
- The respondent has acted unlawfully,
- The applicant has suffered harm or prejudice,
- Any error of law, or procedural error, was material to the decision,
- The interests of justice require such a remedy to be granted, taking into account both the interests of the applicant and the public interest, and
- The granting of the remedy leaves the applicant in a significantly better position.
‘Significant benefit’
McCann FitzGerald points out that, under the proposals, costs may be awarded to an applicant only where the final decision of the court provides “a significant benefit to the applicant”.
“No guidance is provided as to the meaning of this term, which is likely, if enacted as it stands (and commenced), to become the subject matter of significant debate and, no doubt, judicial consideration,” the firm’s lawyers state.
The firm points out that certain provisions of the JR section of the bill will not apply to applications under part nine of the Planning and Development Act 2024.
This exception relates to a development that is likely to have significant effects on the environment or on a European site, or to an act or omission by any person that contravenes a provision of the 2024 act or an enactment under the 2024 act relating to the environment.
Applications for leave to apply
McCann FitzGerald notes that, under head ten of the bill, an application for leave to apply for JR may be sought only by a person directly affected by the act that is the subject of the application, and who has a sufficient interest in the matter.
“While this apparent change has generated some media attention, we query in practice whether it will result in a more onerous hurdle for an applicant at the leave stage, given that currently, in order to satisfy the sufficient-interest test, an applicant will usually demonstrate that they are directly affected by the act or decision in question,” the firm’s analysis states.
The analysis also points to “an interesting limit” in the bill on a court’s ability to extend the duration for bringing JR proceedings.
Currently, a court is not limited in the extension period it can order, where it is satisfied of certain matters.
16-week limit
Once enacted and commenced, a court will not be allowed to extend the period for bringing JR proceedings beyond 16 weeks from the date when grounds for the application first arose, the McCann FitzGerald lawyers note.
They conclude that the bill’s proposals are likely to be “refined and developed significantly” during its journey through the Oireachtas.
“It also remains to be seen whether the bill will deliver on the Government’s intent to reduce the level and scope of challenge that consents/approvals for large infrastructure projects face, or if it will create uncertainty and more issues than ever for judicial consideration,” they add.