John McHugh v Laois County Council

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Garrett Simons
Judgment Date22 February 2021
Neutral Citation[2021] IEHC 131
Docket Number2020 No. 809 J.R.
Date22 February 2021
Between
John McHugh
Applicant
and
Laois County Council
Respondent

[2021] IEHC 131

2020 No. 809 J.R.

THE HIGH COURT

Judicial review – Leave to appeal – Costs – Applicant seeking leave to apply for judicial review – Whether the applicant required leave to appeal

Facts: Proceedings sought to challenge an administrative decision which was made in January 2006. The principal judgment was delivered on 1 February 2021, [2021] IEHC 21. The High Court (Simons J) refused leave to apply for judicial review. The proceedings were then adjourned for a number of weeks to allow the parties to consider the judgment. The proceedings were ultimately listed before Simons J on 22 February 2021 and the parties made submissions on procedural matters arising out of his earlier decision, in particular the question of whether leave to appeal was required and the allocation of costs.

Held by Simons J that the applicant, Mr McHugh, did not require leave to appeal in circumstances where the proceedings were not subject to the provisions of s. 50A(7) of the Planning and Development Act 2000. Simons J held that, subject always to his right of appeal, the applicant had been unsuccessful in that leave to apply for judicial review had been refused, principally on the grounds of delay. Simons J held that the proceedings did not raise any question of law of general public importance such as might inform the court’s discretion to depart from the default position under Part 11 of the Legal Services Regulation Act 2015 that a party who has been “entirely successful” in proceedings is entitled to a costs order as against the unsuccessful party.

Simons J held that the application for leave to apply for judicial review would be refused for the reasons set out in the written judgment of 1 February 2021. The court made a declaration that leave to appeal pursuant to s. 50A(7) of the 2000 Act was not required. Simons J made an order in favour of the respondent, Laois County Council, requiring the applicant to pay the costs of and incidental to the proceedings; the costs order included all reserved costs and such costs were to be adjudicated by the Office of the Chief Legal Costs Adjudicator in default of agreement. Simons J placed a stay on the adjudication and execution of the costs order pending the hearing and determination of the intended appeal to the Court of Appeal and any application thereafter for leave to appeal to the Supreme Court. Simons J held that the parties had liberty to apply in the event that, contrary to the declaration above, the Court of Appeal ruled that leave to appeal was required.

Leave to appeal not required in legacy judicial review proceedings.

JUDGMENT of Mr. Justice Garrett Simons delivered on 22 February 2021

INTRODUCTION
1

This ruling addresses a number of procedural matters arising out of my earlier decision to refuse leave to apply for judicial review. In particular, this ruling addresses: (i) the question of whether leave to appeal is required; and (ii) the allocation of costs. The principal judgment was delivered on 1 February 2021, McHugh v. Laois County Council [2021] IEHC 21. The proceedings were then adjourned for a number of weeks to allow the parties to consider the judgment. The proceedings were ultimately listed before me this morning (22 February 2021) and the parties made submissions on the procedural matters.

LEAVE TO APPEAL TO COURT OF APPEAL
2

As appears from the principal judgment, the fact that these proceedings seek to challenge an administrative decision which was made as long ago as January 2006 has the consequence that the judicial review proceedings are subject to the “old” procedural regime. This outcome follows from the judgment of the High Court (Charleton J.) in O'Reilly v. Galway City Council [2010] IEHC 97.

3

The present proceedings are thus subject to conventional judicial review under Order 84 of the Rules of the Superior Courts rather than the special statutory judicial review procedure prescribed for legal challenges to planning decisions. This is because the decision sought to be impugned in these proceedings is of a type which, prior to the commencement of the Planning and Development (Amendment) Act 2006, had not been captured by the statutory judicial review procedure.

4

The practical consequence of this is that the time-limit applicable to the present proceedings is six months (as prescribed under Order 84 prior to its amendment in 2011), rather than the eight week time-limit prescribed under section 50 of the Planning and Development Act 2000 (“ the PDA 2000”).

5

As flagged in the principal judgment, an issue arises as to whether the “old” regime also applies to the procedure governing an appeal to the Court of Appeal. Had the impugned decision been made after the commencement date (17 October 2006), then it would undoubtedly have been subject to the statutory requirement to obtain leave to appeal from the High Court under section 50A(7) of the PDA 2000. The question for...

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