In the wake of the recommendations of the McCarthy Report in 2009, and the subsequent cutbacks in public spending over the past 3 years, statutory bodies are now required to carry out their functions within diminishing budgets. Where the body in question is not in a position to carry out a responsibility conferred on it by statute, an action can arise for a breach of statutory duty. In such circumstances, the consequences of the breach are occasionally set out in the relevant statute. More often than not, however, it is up to the court to determine whether an action arises and if so, the extent of the ensuing remedies. Such remedies available to an applicant include damages, declaratory relief or a mandatory order. The mandatory order is the most contentious as the question arises, then, under the doctrine of the separation of powers, as to whether the courts can make such an order directing that the executive spend its budget in a certain way.
According to the development of case law in this jurisdiction, the courts are opposed to granting mandatory orders which necessitate expenditure, in situations where the respondent public body does not have the requisite resources to fulfil its functions. In an attempt to be practical, the courts have taken the approach that any such order is redundant if the body is precluded from complying by reason of impecuniosity. However, as can be discerned from the decisions discussed below, there have been inconsistencies in the application of this principle.
Mandatory Orders v Limited Resources
From early English case law, the courts there have demonstrated this unwillingness to force the hand of public bodies in terms of its budget. In a 1974 English Court of Appeal case, an applicant sought an order directing that his local authority comply with its legal duty to him to provide accommodation after he lost possession of his flat. It was found that he was not entitled to such an order. The Judge stated that, where there is evidence that a local authority is doing everything in its power to comply with its statutory obligation but has failed to do so because of circumstances beyond its control, "it would be improper for the court to make an order of mandamus compelling it to do that which it cannot do..."
In Ireland, the Supreme Court has taken an equally frank approach. However, there has been a sprinkling of High Court decisions indicating that statutory responsibilities cannot be completely disregarded due to a plea of insufficient resources. In Hoey v Minister for Justice1, it was argued on behalf of the Minister that she was justified in...