Hellfire Massy Residents Association v an Bord Pleanála, The Minister for Housing, Local Government and Heritage (by Order), Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 14 December 2021
• Neutral Citation: [2021] IEHC 771
• Docket Number: [2020 No. 568 JR]
• Year: 2021
• Court: High Court

Between

Hellfire Massy Residents Association

Applicant

and

An Bord Pleanála, The Minister for Housing, Local Government and Heritage (By Order), Ireland and The Attorney General

Respondents

and

South Dublin County Council

Notice Party

[2021] IEHC 771

[2020 No. 568 JR]

THE HIGH COURT

JUDICIAL REVEW

(NO. 3)

JUDGMENT of Humphreys J. delivered on Tuesday the 14th day of December, 2021

1 In Hellfire Massy Residents Association v. An Bord Pleanála (No. 1) [2021] IEHC 424, ( [2021] 7 JIC 0201 Unreported, High Court, 2nd July, 2021), I decided in principle to refer certain questions to the CJEU having dismissed the applicant's proceedings on other points.

2 In Hellfire Massy Residents Association v. An Bord Pleanála (No. 2) [2021] IEHC 636, ( [2021] 10 JIC 1302 Unreported, High Court, 13th October, 2021), I refused leave to appeal to the Court of Appeal in relation to the dismissed matters.

3 The applicant subsequently proposed the addition of two amici curiae for the purposes of making submissions in advance of the reference to the CJEU, the proposed amici being An Taisce – The National Trust for Ireland and Save Our Bride Otters. The State respondents expressed some reservations about this, although in fairness the objection was not pressed very strongly.

4 On 29th November, 2021, I heard submissions in this regard. I also indicated that I would amend the title of the proceedings to reflect the current official title of the Minister concerned (the Minister for Housing, Local Government and Heritage).

5 On 1st December, 2021, I informed the parties of the order being made, and I now give reasons. I will begin by outlining some contextual issues, the essential requirements for joinder of an amicus curiae, and factors to be considered if those essential requirements are met.

Some contextual points

6 Joining an amicus curiae does not normally create any major problem. While the jurisdiction should be exercised sparingly, and is certainly not automatic, we need to be clear what that means. Of tens of thousands of cases instituted across the totality of all levels of the system every year, the number where an amicus might be an issue will be an extremely small percentage. That is what “sparingly” means. Not routine or run-of-the-mill and not for common or garden cases. Even in the context of art. 267 TFEU, where cases from Ireland run only into the single digits a year, the appointment of an amicus curiae is not automatic, although it would not be that surprising if the question fell to be considered in a fair number of that small single-digit number of cases. “Sparingly” means sparingly in the legal system overall, not that appointment of amici can't in practice be more frequently concentrated and considered in particular limited and defined contexts.

7 The inherent jurisdiction to appoint an amicus curiae was recognised by the Supreme Court in H.I. v. Minister for Justice, Equality and Law Reform [2003] IESC 42, [2003] 3 I.R. 197 at para. 22 per Keane C.J. At para. 17 the court referred to the illuminating judgment of Kirby J. (diss.) in the High Court of Australia in Levy v. Victoria [1997] 189 C.L.R. 579, where he said that “[t]here is no need for undue concern about adopting a broader approach” in relation to the appointment of amici curiae, and that “[t]he court itself retains full control over its procedures. It will always protect and respect the primacy of the parties. Costs and other inhibitions and risks will, almost always, discourage officious busybodies. Those who persist can usually be recognised and easily rebuffed. The submissions of interveners and amici curiae will typically be conveyed, for the most part, in writing.” While not specifically quoted by Keane C.J., Kirby J. began the discussion by pointing out that the court “finally declaring the law … in a particular case for application to all such cases” is a “far from mechanical task” and makes it appropriate to hear from a “broader range of interveners and amici curiae” than might have been previously thought. In my view, the increasing complexity of society and law makes these comments very resonant, doubly so in a case where the CJEU will be finally deciding a point for the continent. Kirby J.'s conclusion was that “[c]onforming to the Constitution, this Court should adapt its procedures, particularly in constitutional cases or where large issues of legal principle and legal policy are at stake, to ensure that its eventual opinions on contested legal questions are informed by relevant submissions and enlivened by appropriate materials.”

8 That judgment is a valuable reality-check to any anxiety that might be created by the sheer unfamiliarity of amici curiae in the Irish context, even recognising that they will remain the exception rather than the rule in terms of litigation overall and will not become automatic even in the very limited and specialised contexts where their appointment might arise for consideration more frequently.

9 I turn now to the essential requirements for the appointment of an amicus curiae.

Essential requirements

10 The core requirements for the appointment of an amicus curiae are as follows:

• (i). One criterion that is indispensable at least in practice is that the proposed amicus agrees to act as such. It is true that in Grant Thornton v. Scanlon [2019] IECA 276, ( [2019] 10 JIC 3105 Unreported, Court of Appeal, 31st October, 2019), Baker J. (Irvine and Donnelly JJ. concurring), said at para. 67 that it will “weigh heavily” on the court that a proposed amicus was not seeking the role. But even if a proposed amicus is not actively seeking to be appointed, such an entity would nonetheless have to agree to carry out the role if that order was made. Otherwise the appointment of an amicus would be completely pointless as it would simply decline to make any submissions.

• (ii). It is also necessary for the proposed amicus to have bona fide interest in the issue or issues in relation to which its appointment falls to the considered (see per Keane C.J. in H.I. at p. 203). This point is sometimes loosely referred to in caselaw as having an interest in “the proceedings” ( per Eagar J. in L.C. v. Director of Oberstown [2016] IEHC 705, ( [2016] 12 JIC 0905 Unreported, High Court, 9th December, 2016)), but that is not quite correct. An amicus might have no interest whatsoever in the particular proceedings as such, but that doesn't mean it wouldn't have a bona fide interest in one or more of the issues to which the proceedings relate.

• (iii). An amicus cannot contest undisputed facts and cannot get involved in evidence unless exceptionally so ordered by the court. The point that an amicus is not normally entitled to adduce any evidence was highlighted by Keane C.J. in H.I. at para. 23 referring to United States Tobacco Company v. Minister for Consumer Affairs [1988] 20 F.C.R. 520, and noting that an amicus “has no right of appeal”. Costello J. in Data Protection Commissioner v. Facebook Ireland Ltd. [2017] IEHC 105, ( [2017] 2 JIC 2003 Unreported, High Court, 20th February, 2017) said at para. 10 that “[i]t is absolutely clear that an amicus curiae cannot contest the undisputed facts in the case”. More generally Clarke J. in Fitzpatrick v. F.K. [2006] IEHC 392, [2007] 2 I.R. 406 said at p. 417 that “an amicus should not be permitted to involve itself in the specific facts of an individual case. It is only after those facts have been determined that the extent to which issues of general importance may remain for decision will be clear. That is far more likely to be the case at the appellate rather than the trial level”. Kelly J. in EMI Records Ireland Ltd v. UPC Communications (Ireland) Ltd. at para. 69 said “[i]f it is the intention of the applicant to contest either of the factual matters … then it will be seeking to involve itself in the factual aspects of the proceedings and there is no role for an amicus curiae in that regard.” Impliedly a court could order otherwise, but that is very much exceptional and unlikely to the point of being hardly worth discussing. The reference to amici at appellate level being more likely than at trial level is not because that rule is an end in itself, but a consequence of the principle that amici should not get involved in evidential disputes. If there are no such disputes at trial level, or if the trial court has already found the facts, such a hesitation doesn't apply.

• (iv). An amicus is bound by the existing parameters of the case unless otherwise ordered. In a comprehensive, and if I may respectfully say so, extremely helpful, judgment on this issue in Schrems v. Data Protection Commissioner (No. 2) [2014] IEHC 351, [2014] 2 I.L.R.M. 506, Hogan J. refused to allow an amicus to propose an additional question for the CJEU on the grounds that “an amicus is normally bound by the parameters of the existing litigation” (para. 38) and that “[t]hese additional questions would effectively make [Digital Rights Ireland (DRI) (the amicus)] a party to the litigation in order to facilitate it to make a case which the parties themselves had never made” (para. 41). An amicus can comment on the detail of a proposed question which sometimes could be helpful, and it could also argue that a point that the court is considering referring is in fact acte clair (thereby perhaps reducing the scope of the reference), but it cannot seek to extend the parameters of the case, at least in the absence of some exceptional order to that effect, which again seems so unlikely as to be hardly...