SHD judicial reviews ‘now an industry’ – Humphreys

Practitioners have a significant role to play in accelerating litigation in the Planning and Environmental (P&E) list of the High Court, Mr Justice Richard Humphreys has said.

Mr Justice Humphreys, the first judge in charge of the list, told the Law Society Environmental and Planning Law Committee Conference (5 November), that when the list was first spun off from the Commercial Court, there were 12 live cases and now there are currently over 300.

High success

In 2020, the caseload doubled because of the Strategic Housing Development (SHD) legislation and high success rates for applicants in judicial reviews.

“When you have a situation where 93% of SHD judicial reviews are being decided in favour of applicants, that creates an industry,” Mr Justice Humphreys said.

A further 50% increase followed in 2024 as a result of the Supreme Court decision in Heather Hill which removed uncertainty around legal costs.

Judge Humphreys said this was a positive development for litigants but had contributed to the increased volume of proceedings.

Up to mid-October 2026 there has been a reduction in cases compared with the previous year.

The judge suggested that this might reflect a more structured approach to decision-making within An Coimisiún Pleanála, resulting in more robust decisions that were less vulnerable to challenge.

Using an estimated capacity of 60 live cases per full-time judge and ten per part-time judge, Humphreys said the gap between the number of live cases and the court's capacity represented the backlog, “the number one problem in the P&E list”.

Of 579 cases finally disposed of since October 2020, including settlements, 44% of those decided judicially had been determined in favour of applicants and 56% in favour of respondents.

Humphreys said settlement remained his preferred outcome, “and if there's anything I can do to facilitate that, obviously I'm willing to do that”.

He added that fixing a hearing date could itself encourage parties to resolve proceedings.

He described collaboration as the “overarching theme” of the court which is also “reasonably informal”.

All types of participants are welcome, and, if they are copied to the other parties, queries can be made by email.

Engagement

Stakeholder engagement is a distinctive feature of the list and includes customer surveys and consultation on procedures and practice directions.

There is also a fast track, notwithstanding the number of cases, “we do try and prioritise to some extent pragmatic and creative options for resolution”.

'Conspicuously European court'

What is also distinctive about the P&E court, the judge said, is that “we're a conspicuously European court.”

Twenty-five references have been sent to the CJEU so far.

“We only refer serious points of doubt to the European Court,” he explained, arguing that “if there is to be a reference, it's far cheaper for everybody to get it over with in the first instance because the answer is determinative nine times out of 10.”

The reference procedure is also an important check and a balance in the system, he said.

The number and robustness of decisions made by the commission influence the number of judicial reviews before the court.

And the complexity of the substantive law is a major factor in the speed of litigation.

Intellectual self-respect

“The only thing I've got direct influence over is the procedures and the duration of the hearing,” he said, before outlining ways in which practitioners can speed up litigation.

• A practitioner’s first duty is to the court, which needs their help, including accurately representing decisions on appeal,
• Intellectual self-respect: Lawyers should advance only arguments they genuinely consider reasonably valid, rather than every conceivable point, Humphreys said, borrowing a phrase from fellow P&E judge David Holland,
• Redefining success: Lawyers are not ‘miracle workers’ and must recognise the limits of advocacy,
• While oral advocacy has its place, Humphreys questioned its influence on cases largely determined by established legal principles. Written submissions can have greater impact than practitioners realise,
• Provisional views: He highlighted a voluntary procedure, requiring parties’ agreement, under which a judge gives a provisional view before a brief oral hearing. Unlike responses to draft judgments, this allows substantive counterarguments. Humphreys said practitioners had significantly influenced the outcomes of test cases using this approach.

The judge also stressed that judgments reflect the court's view of the facts and the law: “It's no reflection on the lawyers on the losing side”.

His other recommendations included managing clients' expectations, corresponding constructively, working with the court and its registrars, considering the strengths and weaknesses of a case, and exploring Alternative Dispute Resolution (ADR).

Solicitors should also ensure that counsel adopted a similarly constructive approach.

Engage creatively with the court

Practitioners were encouraged to engage creatively with the court where opportunities arose, including through time-saving procedures, expedited directions and pragmatic forms of disposal.

In a Q&A with Rachel Minch SC, Humphreys acknowledged the trade-offs involved in the removal of the preliminary leave stage in planning judicial reviews but said it should save time even though it will mean respondents having to bring a motion to challenge proceedings.

He described AI as potentially transformative and urged against treating its use as inherently problematic, provided appropriate safeguards are in place.

Under the current practice direction, an expert can use AI to assist with a report, provided this is disclosed, but the accompanying affidavit must be in the expert's own words.