Lennon v Disabled Drivers Medical Board of Appeal; Reeves v Disabled Drivers Medical Board of Appeal
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Regan |
| Judgment Date | 31 July 2018 |
| Neutral Citation | [2018] IEHC 465 |
| Date | 31 July 2018 |
| Court | High Court |
| Docket Number | [RECORD NO 2018 No. 205 J.R.] [RECORD NO 2018 408 JR] |
[2018] IEHC 465
THE HIGH COURT
JUDICIAL REVIEW
O'Regan J.
[RECORD NO 2018 No. 205 J.R.]
[RECORD NO 2018 408 JR]
AND
AND
AND
AND
Order of certiorari – Adequate reasons – Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations 1994 – Applicants seeking an order of certiorari in respect of impugned orders – Whether Regulation 3 of the Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations 1994 is ultra vires s. 92 of the Finance Act 1989
Facts: The applicants in both proceedings (the Lennon application and the Reeves application) claimed an order of certiorari in respect of impugned orders together with a declaration to the effect that Regulation 3 of the Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations 1994 is ultra vires s. 92 of the Finance Act 1989. It was asserted that the first respondent, Disabled Drivers Medical Board of Appeal, failed to give any or any adequate reasons in respect of the decisions made and under review. Allied to the reasons issue it was asserted that the first respondent failed to consider adequately or at all the evidence submitted. In respect of the Lennon application there was a further argument to the effect that in respect of the conflict incorporated within the medical reports before the first respondent, it failed to identify why one report was preferred over the other.
Held by the High Court (O’Regan J) that the applicants in both cases failed to establish sufficient grounds to secure an order of certiorari in respect of the decision of the 29th January 2018, in the case of Lennon, and the decision of 21st May 2018 in respect of Reeves.
O’Regan J held that the declaration sought to the effect that Regulation 3 of the 1994 Regulations is invalid and/or unreasonable would be refused as was the balance of the declarations sought.
Applications refused.
In the above proceedings, both applicants are claiming an order of Certiorari in respect of each of the impugned orders together with a declaration to the effect that Regulation 3 of the Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations, 1994 (the regulations) is ultra viress. 92 of the Finance Act (1989) as amended. It is asserted that the first named respondent failed to give any or any adequate reasons in respect of the decisions made and now under review. Allied to the reasons issue it is asserted that the first named respondent failed to consider adequately or at all the evidence submitted.
In respect of the Lennon application there is a further argument to the effect that in respect of the conflict incorporated within the medical reports before the first named respondent, the first named respondent failed to identify why one report was preferred over the other.
In the Lennon application, the relevant applicant was born on 12th January 2001 and the decision impugned is dated the 29th January 2018. The application is brought by way of statement of ground of the 12th March 2018 and is grounded upon the affidavit of Margaret Lennon, the applicants' mother, of the 7th March 2018. Leave was afforded on the 12th March 2018. It is common case that the applicant is severely disabled and uses a wheelchair much of the time.
In the Reeves application, the applicant was born on the 2nd February 2016. The statement of grounds is dated June 2018. In that matter the impugned decision is dated the 21st May 2018. The application is grounded upon the affidavit of the applicants' mother Amanda Reeves of the 18th June 2018. Leave was afforded on the 22nd June 2018. It is common case that the applicant suffers from spina bifida, hydrocephalus and Arnold-Chiari 2 malformation.
For the purposes of the within application, the respondent accepts that both applicants have a severe and permanent disability.
The jurisprudence relevant to whether or not a statutory instrument is ultra vires the primary legislation is accepted.
The Oireachtas is not to be diluted or usurped. Furthermore, the Oireachtas is presumed not to have delegated the power to effect a substantial alteration in general law and any delegation of power must be exercised within the limitations of that power as they are expressed or necessarily implied in the statutory delegation. The power should be exercised reasonably. Such power is not exercised reasonably if there is such manifest arbitrariness or injustice or partiality that a court would say ‘parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.’ (see Island Ferries Teoranta v. Minister for Communications & Ors [2015] IESC 95 and Cassidy v. Minister for Industry and Commerce [1978] 1 IR 297.)
In Kennedy v. the Law Society of Ireland [2002] 2 IR 458, it was held that the delegates of statutory power cannot be allowed to exceed the limits of the statute and any excessive exercise of the delegation discretion will defeat the legislative intent. The delegates are bound to ensure respect for the laws passed by the Oireachtas.
In or about determining whether or not the exercise of the power is permitted as a legitimate exercise the answer is to be found within the terms of the statute itself (see Ireland Ferries Teoranta aforesaid). The fact that the statutory instrument might be subject to annulment by either house of the Oireachtas is merely a safeguard however the ultimate responsibility rests with the courts to ensure that the exclusive authority of the national parliament in the field of law-making is not eroded by a delegation of power (see Cityview v. ANCO [1980] 1 IR 381).
In addition to the foregoing, it is accepted by the respondent, in accordance with the applicants' submission, that the true meaning of each statutory provision is ascertained by the plain language of the act and it is only in case of doubt or ambiguity that the purpose and intention might be inferred from other provisions or other statutes expressed to be construed with it. In Board of Management of St. Molaga's School v. Minister for Education [2010] IESC 57, Denham J. stated that once the plain meaning of the words are clear unambiguous and not absurd, the statute should be construed accordingly.
The respondents also accept the applicants' submission relative to adequacy of reasons save that the respondent argues that the relevant starting point for the consideration of adequacy of reasons is the case of Mallak v. Minister for Justice [2012] 3 IR 297 as was held by Laffoy J. in McInerney v. Commissioner of An Garda Siochána [2016] IESC 66 in or about dealing with the consideration of adequacy of reasons. The respondents accept under this jurisprudence that a failure or refusal by a decision maker to explain or give reasons for a decision may amount to a ground for quashing it, however an important consideration is as to whether or not there is a right of appeal – where there is a right of appeal there is a greater onus to provide reasons. Where however there is no right of appeal, Fennelly J. in Mallak indicated that the decision should enable an applicant to know whether he has a good ground for applying for judicial review and this decision should also make it possible for the courts effectively to exercise their power of judicial review. Fennelly J. also stated that the most obvious means of achieving fairness is for reasons to accompany the decision however it is not a matter of complying with a formal...
To continue reading
Request your trial
-
Lennon v Disabled Drivers Medical Board of Appeal Reeves v Disabled Drivers Medical Board of Appeal
...Justice Costello delivered on the 25th day of February, 2019 1 This is an appeal of the decision of O'Regan J. on the 31st July 2018 ( [2018] IEHC 465) where she refused the applicants orders of certiorari in respect of decisions dated the 29th January 2018 and 21st May 2018 by the first n......
-
Reeves v Disabled Drivers Medical Board of Appeal, Lennon v Disabled Drivers Medical Board of Appeal
...for its decisions. The applications were heard together in the High Court. O'Regan J. delivered judgment on the 31st July 2018 (see [2018] IEHC 465), refusing the claims for relief. She found that the statutory scheme permitted the Minister to make regulations and that he had not exercised ......
-
Reeves (minor) v Disabled Drivers Medical Board
...of judicial review (see Lennon & anor v. Disabled Drivers Medical Board of Appeal and ors [2019] IECA 61, delivered 28th March 2019, and [2018] IEHC 465, delivered 31st July 2018, respectively). General Considerations 2 The general principles applied by this Court in determining whether to ......
-
Lennon (A Minor) v Disabled Drivers Medical Board
...of judicial review (see Lennon & anor v. Disabled Drivers Medical Board of Appeal and ors [2019] IECA 61, delivered 28th March 2019, and [2018] IEHC 465, delivered 31st July 2018, respectively). General Considerations 2 The general principles applied by this Court in determining whether to ......