knowledge 21 September 2018 |

Extent of Fair Procedures Required Depends on Context and Practicalities

Fair procedures always depend on context and extent of risk to rights

It is well-established in Irish law that the kinds of natural justice or due process rights which should be available to a person affected (for example, advance notice of questions they might be asked; a right to an oral hearing;¹ a guarantee of legal representation; an ability to cross-examine) depend on the context, and on the extent to which the affected person’s reputational or other rights are potentially at risk.  

Such procedural rights need not necessarily be fully available in a purely fact-finding inquiry which does not have legal consequences for people’s rights.  As the extent to which an affected person’s rights are genuinely at risk will vary depending on the nature of the process, and may indeed vary within the process as it evolves or develops,² courts have avoided setting out any rigid rules about the circumstances in which particular procedural rights should be guaranteed.³  

A short-term decision in a truncated hearing 

LSM (a minor) v Child and Family Agency ⁴ concerned a baby born in June 2018 in a mother and baby home to a young woman who had spent time in secure care.  Due to concerns for the baby’s welfare, the Child and Family Agency (“CFA”) sought and was granted an emergency care order (valid only for eight days).  It then sought an interim care order, on notice to the mother, which was listed on 5 September 2018.  Reports on which the CFA intended to rely were only sent to the mother’s lawyers on 4 September 2018 (later than permitted by court rules).  

At the hearing, the District Court heard oral evidence from a unit manager of the home, who was cross-examined on behalf of the mother, and heard some evidence from the home’s Clinical Lead.  The court had sat very late and there was no prospect of the hearing finishing that day. The earliest available date to resume was 17 September 2018.  In the circumstances, having regard to the evidence heard, the District Judge determined that she should make an interim care order (keeping the baby in the custody of the CFA) up to the date of the resumed hearing. 

The mother sought a High Court order directing the child’s release from the CFA’s custody, alleging that the District Judge lacked jurisdiction to make the order, essentially on two grounds: (1) that the late delivery of the reports was a fundamental denial of justice and a breach of her right to fair procedures in dealing with the application, and (2) that the District Court made an order without having heard all the evidence, which was a fundamental breach of fair procedures and so deprived the court of jurisdiction. 

Humphreys J disposed of the first argument on the basis that the mother’s counsel had not sought an adjournment in the District Court to deal with the reports (but rather had applied unsuccessfully to dismiss the proceedings). As the particular argument was not made in the District Court, the objection was now legalistic and did not meet the threshold for fundamental denial of justice.⁵ 

A general principle that a curtailed or modified form of fair procedures may suffice where circumstances make the full operation of classic fair procedures impractical 

On the second objection, Humphreys J noted that that the District Court had not made an order on the basis of no evidence.  The court had considerable written evidence and also the benefit of full cross-examination of the first witness. Taking as a starting point the Supreme Court’s judgment in State (Lynch) v Cooney,⁶ which essentially held that a decision-maker is not always obliged to give an opportunity for persons likely to be affected by a decision to be heard, the judge derived a broader principle “that where circumstances are such that the full operation of conventional fair procedures is simply impractical, due in particular to the decision-maker running out of time, a practical and pragmatic solution whereby a curtailed or modified form of fair procedures is applied is not in itself a breach of the principle”. By making an order lasting only for 12 days, the District Judge’s approach was proportionate and was one “that a court is entitled to make if time runs out because under those circumstances the right to fair procedures is not breached by a truncated process”. 

While the articulation of this principle goes further than in previous cases involving decisions of lower courts, it reflects that courts themselves, rather than court users, must determine when and to what extent the full panoply of procedural rights must be available. Without this discretion, courts could not make urgent decisions on an ex parte basis, or control litigants who waste court time or try to create appeal points by persisting in unmeritorious arguments.  

This principle also resonates comfortably with earlier judgments which held that it is wrong to suppose that the full panoply of procedural rights or protections should be available where rights are not genuinely at risk, including observations that “natural rights are the procedures for the protection of the Constitutional rights of citizens and the attainment of justice.  They are not a ritual or formula requiring a slavish adherence” ⁷ and that “neither natural nor constitutional justice requires perfect or the best possible justice, it requires reasonable fairness in all the circumstances.⁸

Wider application of this principle? 

LSM involved very particular facts. However, the principle identified could be applied much more widely. Decision-makers in statutory or bespoke procedures often have outer time limits; sometimes a default decision is defined if a particular decision is not taken within a prescribed time. This can create incentives for affected persons who want the default outcome to prolong the process, to deliver voluminous material late or to filibuster, in the hope of running down the clock. Often facts or circumstances arise late in the process, without any strategy behind them, and need to be considered.  

LSM shows that it may be legitimate in such circumstances for a decision-maker to sacrifice out of necessity elements of procedural fairness which would otherwise be present, and that the decision made may withstand challenge on procedural fairness grounds if it has a proper factual basis and the sacrifice does not go beyond what was necessary in the circumstances, especially if it can be revisited or revised (including, presumably, by appeal). This judgment gives decision-makers considerable comfort if they ever find themselves wedged between the rock of demands by interested parties to be heard or heard again and the hard place of a clock running down close to zero.