knowledge 16 May 2024 |

Judicial Review applications now “made” when papers filed rather than when ex parte application is heard

This means that applications will be considered made at an earlier point in time than was previously the case. This will effectively put an end to ex parte applications being made just inside the 3 month time period stopping the clock for the purposes of calculating whether proceedings were brought within the relevant time limit.

Time limits for bringing an application for leave to apply for judicial review

Order 84, rule 21 RSC provides that “an application for leave to apply for judicial review shall be made within three months from the date when grounds for the application first arose”. 

This is without prejudice to any statutory provision which has the effect of further limiting the time within which an application for judicial review may be made, for example:

• Sections 50(6) and 50(7) of the Planning and Development Act 2000 (as amended) require an application for leave to apply for judicial review of a decision or act under the Act to be made within 8 weeks from the date of the decision or act in question;
• Section 87(10) of the Environmental Protection Agency Act 1992 (as amended) provides that a person shall not, by application for judicial review or in any other legal proceedings, question the validity of a decision of the Agency to grant or refuse a licence or revised licence unless the proceedings are instituted within 8 weeks of the date on which the licence was granted or the decision to refuse/not to grant the licence was made; and
• Section 5(2) of the Illegal Immigrants (Trafficking) Act 2000 requires an application for leave to apply for judicial review of the matters referred to at subsection (1) to be made within 28 days of the date on which the person was notified of the decision, determination, recommendation, refusal or making of the Order unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made.

What was the position previously?

Until recently, the case law was not wholly clear on the question of when time, be that the 3 months prescribed by Order 84, rule 21 RSC or some shorter period prescribed by legislation, stopped running for the purposes of making an ex parte application for judicial review.  However, it was recently settled that the applicable time period would “run out” on the date on which the application for leave to apply for judicial review was made in the High Court, and not when the papers were filed in the Central Office.  [Heaney v An Bord Pleanála [2022] IECA 123]

What is the position now?

Since 26 April 2024, that position is changed.  Order 84 RSC is amended such that the time period within which an application must be brought automatically stops running on filing in the Central Office of the High Court, or in the Court in urgent cases:

1. the notice grounding the motion ex parte;
2. the grounding affidavit; and
3. where it is require by enactment that the application be made by motion on notice, a notice of motion.

Implications

This means that applicants seeking to bring judicial review proceedings will be able to ‘stop the clock’ on the time period within which they must do so at an earlier point in time i.e. before their application is heard by the Court.

Also contributed to by Kate Doyle