A Tale of Faulty Beginnings and False Hope: The Intensity of Review in Judicial Review Cases

by Tommy McDarby (Mac Diarmada)

Tommy McDarby (Mac Diarmada) completed his undergraduate degree in Law with Politics in UCD in 2021. In this colourful article, Tommy considers the intensity of judicial review in Irish law.

(1)   Introduction

This article peels back the onion layers on the intensity of review in Judicial Review (“JR”) cases. Indeed, an onion is an apt metaphor for the development of this area: it is enough to reduce the potential litigant to tears, as curial deference is arguably placed on a higher pedestal than doing justice in individual cases.

The examination proceeds on the basic assumption of understanding (as set out in O’Keeffe)[1] that as with all JR, a court will have regard only to procedural questions and not conduct a review de novo of the substance or merits. Although as demonstrated in North Wall Property Company Ltd & Anor v Dublin Docklands Development Authority & Anor [2008] IEHC 305 – there are certain limited exceptions where the HC will exercise an appellate function.Regard will thus be had to the various tests required for success.

The intensity of review in JR cases is traced back through to its roots in the Wednesbury decision. Its journey across the Irish Sea is then documented, noting how, as it became more settled in this jurisdiction, it became apparently more and more insurmountable as a hurdle for litigants. This post then goes on to characterise the optimism around the new approach to O’Keeffe demonstrated by Simons J in the HC as false hope.

(2)   The Faulty Beginning: Wednesbury

Angelou’s adage that ‘you cannot really know where you are going until you know where you’ve been’[2] is apposite in laying out the faulty beginning of the intensity of review – this journey began in a cinema. It was under the control of the Associated Provincial Picture Houses, the applicant in the now infamous Wednesbury[3] decision. They sought JR by way of certiorari on the condition that no children (irrespective of accompaniment by an adult) be permitted to attend screenings on Sunday in the licencing of Sunday opening.

The English Court of Appeal (“EWCA”) held that unreasonableness could only be a ground of JR where the decision to be set aside was palpably unreasonable. It coined the somewhat self-defeating and circular test: ‘so unreasonable that no reasonable authority could ever have come to [the decision]’[4] and hinted at a need to demonstrate bad faith.[5] It is difficult to imagine what a more deferential and lower intensity scrutiny of administrative decisions might look like. The temptation is to posit a standard which requires something akin to an accosting by decision makers. In short, it places an intolerable burden on  applicants from the outset.

(3)   Snowballing and Cementing: Keegan, O’Keeffe, and Meadows

The very low intensity of review originating in Wednesbury came to be part of Irish  administrative law in O’Keeffe.[6] Wednesbury was a case which sought to rely almost exclusively on unreasonableness as a substantive ground. The applicants in both Keegan[7](from which O’Keeffe took the standard)and O’Keeffe sought to rely on a broader spectrum of grounds, of which unreasonableness was merely a constituent.  Nonetheless, the lower intensity was adopted in both. Arguably, O’Keeffe lowered the scrutiny even further by requiring that a decision be the complete inverse of logic: i.e., asking if ‘[i]t is fundamentally at variance with reason and common sense [and] It is indefensible for being in the teeth of plain reason and common sense.’[8]

More recently, Meadows[9]saw the Supreme Court recommit itself to the principle of curial deference (albeit in different circumstances) and structured administrative proportionality review (where unconnected with fundamental human rights). Referencing the Wednesbury/O’Keeffe principles, the Court allowed for a wide margin of appreciation, and required that decisions should not just be disproportionate but unreasonably disproportionate by referring to the need to accord with common sense and fundamental reason. The position now is such that many commentators address how it is exceedingly difficult to succeed in reviewing a decision of the Board.[10] Indeed, the Board themselves have commented on it in their submissions seeking leave to appeal in Halpin v An Bord Pleanála.[11]

The decline of Wednesbury from an ‘ugly but acceptable in context’ decision to a ‘wholly unpalatable extension of itself’ is coincidentally mirrored in the Wednesbury cinema building, which in the years since has spent periods either in disuse or as a bingo hall and is now surrounded by shuttered buildings plagued by chipped paint and brickwork, though ostensibly still in use.

(4)   False Hope: Halpin

The two Halpin decisions appeared to use Wednesbury/O’Keefe/Meadows logic against itself. The case concerned a JR by way of certiorari of an Bord Pleanála’s (“the Board”) decision to grant permission to an anaerobic digestion plant, despite a recommendation to the contrary from its own inspector. A small child applicant brought the review through his mother, arguing inter alia that proper screening did not take place pursuant to the Environmental Impact Assessment Directive. It was advanced that the Board should have considered the proposed plant an ‘establishment’ within the meaning of the Seveso III Directive and that the Board had erred as to the proximity between the proposed plant and the intended site of  the applicant’s home.

The initial reaction to the approach taken by Simons J in the substantive Halpin[12] case is to take hope. He  adopts an interesting approach to the authority in O’Keefe, suggesting that it is underpinned by an assumption that all the relevant information is before the decision maker. At this juncture, he does not mention the Finlay CJ passage on the absence of relevant material.[13] He knows that the Board did have relevant material, he just (rightly) questions its adequacy for reaching the conclusion which the Board reached. A generous reading of his reasoning would perhaps liken the imbued assumption to the initial Wednesbury taking into account extraneous matters and excluding relevant matters language.[14] That is a strained likening to make the best of it. In Wednesbury, the court was hinting at wilful or deliberate ignorance on the part of the decision maker rather than the more innocuous (albeit still egregious) omission to circulate the report on the facts in Halpin, allowing the applicant to produce and adduce their own report before the Board. He then considered both the applicants responding report to the uncirculated report and the uncirculated report itself, among other documents before the Board and determined that there was not enough evidence in the latter report and documents to justify the conclusion reached.[15]

This is at best a stretch on the authorities traced above, where the clear spirit is to allow expert decision makers their margin of appreciation and to engage with their decisions with curial deference. Once the learned judge was satisfied that there was material before the Board upon which they based their decision, which, given the submissions and his detailed consideration of that same material, he manifestly was, even if he suspects it was misunderstood (as he did),[16] a strict application of earlier authorities would oblige him to uphold the Board’s decision. The incompleteness upon which he relies is (as above) a tenuous stretch of the spirit and letter of O’Keeffe. The purposive manner in which he engages with an inconvenient authority on intensity of review is admirable and meritorious but is meaningless in light of the forgoing Supreme Court authorities and useless in light of the Court’s conservatism around curial deference. 

When the Board sought leave to appeal the substantive Halpin decision, Simons J doubled down on his creative approach to O’Keeffe, finding that he had faithfully applied the requirement for applicants to show no relevant material,[17] although making subtle and clever adjustments to the wording of the test, in light of which his scrutiny of the documents which the Board claimed to have relied on seemed like a requirement rather than an overstep.

An attempt to proceed by corollary to White v Dublin City Council[18] may have borne plumper fruit and led to less controversy. Indeed, this post is highly dubious that this authority will come to be regarded as anything more than a blip on the jurisprudential radar and a ‘nice try.’ What the intensity of Review in  JR –– requires is an acknowledgement at SC level that Wednesbury was a flawed level of scrutiny to begin with, and the direction in which we’ve taken it is equally flawed, and places a higher premium on curial deference (which as Halpin demonstrates is not all it’s touted to be) than it does on justice inter partes.[19] Those who would sigh and shake their heads at the rarity of the Supreme Court reversing themselves are respectfully directed to the decisions in DPP v JC[20] and Lynch v Burke and AIB[21] for examples of Supreme Court self-reversal.

(5)   Conclusion

The conclusion that the Halpin approach to O’Keeffe is a blip on the radar rather than a permanent new fixture has been justified by reference to the foregoing caselaw, and an implicit respect for stare decisis, even in the face of undesirable jurisprudence. However, the Common Law is rife with convenient abandonment of that doctrine, indeed such is half of Denning MR’s judicial career. So perhaps this post’s scepticism as to the value of the HC’s new approach to O’Keeffe in Halpin will be proved wrong. Time will tell.    

[1] O’Keeffe v An Bord Pleanála [1993] 1 IR 39.

[2]Maya Angelou, ‘America’s Renaissance Women: Archived Interview with a Poet and Historian from 22 January 1997’ (The American Academy of Achievement, 10 May 2021) <https://achievement.org/achiever/maya-angelou/#interview>   

[3] Associated Provincial Picture Houses Ltd v Wednesbury [1948] 1 KB 223.

[4] ibid, 230.

[5] ibid, 229.

[6] O’Keeffe v an Bord Pleanála [1993] 1 IR 39 (SC).

[7] The State (Keegan) v The Stardust Compensation Tribunal [1986] IR 642 (SC).

[8] O’Keeffe (n 6), [27] – [30], quoting Keegan.

[9] Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 IR 701.

[10] A&L Goodbody, Irish Planning Law and Practice (Bloomsbury Professional 2020), Part 11, [1], David Browne, Law of Local Government (2nd edn, Round Hall 2020), [6-401], Hillary Delaney (now Biehler) and Catherine Donnelly, ‘The Irish Supreme Court inches towards Proportionality Review’ (2011) Public Law 9, see especially where they describe the test for proportionality as framed through a reasonableness lens as ‘circular’, 14.

[11] [2020] IEHC 218, [20].

[12] Halpin v An Bord Pleanála [2019] IEHC 352.

[13] O’Keeffe (n 6), [42].

[14] Wednesbury (n 3), 229.

[15] Substantive Halpin [2019] (n 14), [92].

[16] Halpin Leave Application [2020] (n 12), [45].

[17] ibid, [48]-[55].

[18] [2009] IEHC 346.

[19] see the Board’s misinterpretation of the material before it and failed to impose proper conditions or seek more specificity.

[20] 2015] IESC 31, reversing long-settled law from The People (AG) v O’Brien [1965] IR 142 (SC) and from The people (DPP) v Kenny [1990] 2 IR 110 (SC), and the later People (DPP) v Balfe [1998] 4 IR 50 (CCA).

[21] [1990] 1 IR 1 (SC), reversing the authority in Owens and Freely v Green [1935] IR 225 (SC).

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