Mungovan v Clare County Council

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton
• Judgment Date: 24 April 2020
• Neutral Citation: [2020] IESC 17
• Date: 24 April 2020
• Court: Supreme Court
• Docket Number: [S.C. No. 75 of 2019],S:AP:IE:2019:000075 2016/233 [2017] IECA 321 2011/9930P [2015] IEHC 561; [2018] IEHC 267

BETWEEN

JOHN JAMES MUNGOVAN

PLAINTIFF/APPELLANT

- AND -

CLARE COUNTY COUNCIL

DEFENDANT/RESPONDENT

[2020] IESC 17

Clarke C.J.

MacMenamin J.

Dunne J.

Charleton J.

O'Malley J.

S:AP:IE:2019:000075

[2020] IESC 000

2016/233

[2017] IECA 321

2011/9930P

[2015] IEHC 561; [2018] IEHC 267

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Time limits – Judicial review – Remittal – Appellant seeking acceptance as a qualified water treatment engineer for planning purposes – Where an administrative body decides and implements a fixed policy directly affecting those interacting with it, is a person on receipt of an adverse decision founded on that policy required to bring a challenge within the time limits fixed for judicial review?

Facts: Leave to appear before the Supreme Court was given on 6 September 2019, [2019] IESCDET 203, to determine questions relating to the validity of several refusals of the respondent, Clare County Council, to accept the appellant, Mr Mungovan as a qualified water treatment engineer for planning purposes by entering his name on a list of such experts who would be acceptable to the local authority. The following question arose for decision on a direct appeal from the judgment of Costello J in the High Court, [2018] IEHC 267: where an administrative body decides and implements a fixed policy directly affecting those interacting with it, is a person on receipt of an adverse decision founded on that policy required, by statute or the Rules of the Superior Courts, to bring a challenge within the time limits fixed for judicial review or, instead, is that person entitled to seek judicial condemnation of the policy at any time while it is in force and hence liable to affect them afresh?

Held by Charleton J that challenges to administrative and quasi-judicial actions are on the same footing whether damages or any other remedy in tort or contract is claimed and do not depend on the form of the action, whether Order 84 or plenary summons; furthermore, decking out a judicial review as a tort claim does not remove applicable time limits. Charleton J held that in any issue as to time limits, a court must analyse what is in reality, and in terms of practicality, the question under consideration; a decision on an individual basis or a policy equivalent to delegated legislation by which someone continues to be affected. Charleton J held that, in the latter case, not challenging does not necessarily remove the right to challenge where there genuinely is an ongoing policy or legislative base affecting an applicant; but, even then, sleeping on rights or acquiescence must be regarded as undermining the prospect of success. Charleton J held that this is a matter of assessment in individual cases.

Charleton J held that the plaintiff must succeed on the time point and that the matter would be remitted to the High Court for a unitary trial to decide: the validity of the policy of Clare County Council in the context in which it was taken; whether the plaintiff was validly excluded by that policy; what steps he took to assert his rights; whether laches or acquiescence or any other principle of equity should bar the plenary action; if there is invalidity in the policy, was there malice by the county council such as to ground a tort action for misfeasance in public office; and whether any aspect of defamation can validly be asserted.

Matter remitted to High Court.

Judgment of Mr Justice Peter Charleton delivered on Friday, April 24th 2020

1 Where an administrative body, here Clare County Council, decides and implements a fixed policy directly affecting those interacting with it, is a person on receipt of an adverse decision founded on that policy required, by statute or the Rules of the Superior Courts, to bring a challenge within the time limits fixed for judicial review or, instead, is that person entitled to seek judicial condemnation of the policy at any time while it is in force and hence liable to affect them afresh? This is the question which arises for decision on this direct appeal from the judgment of Costello J in the High Court, [2018] IEHC 267. Leave to appear before this Court was given on 6 September 2019, [2019] IESCDET 203, to determine questions relating to the validity of several refusals of Clare County Council to accept John James Mungovan as a qualified water treatment engineer for planning purposes by entering his name on a list of such experts who would be acceptable to the local authority. Regrettably, only the time aspect of the case has so far been decided.

Background

2 Mr Mungovan attended the National University of Ireland, Galway and graduated with an honours degree in environmental engineering, specialising in wastewater treatment. Returning to Clare, he sought work in that area. With the proliferation of one-off houses in the countryside being an aspect of the general trend of planning decisions in much of our country over the last three decades, very few of which are linked to a local authority sewage system, inspecting and certifying the percolation systems of septic tanks became a likely profitable way in which to occupy himself. These individual human waste disposal systems operate on the basis of piping sewage from toilets into a tank which will percolate faecal sludge. A primary outlet to a first tank allows solids to settle and become anaerobically digested. Scum rises on the liquid component which then flows through a permeable barrier into a second chamber, where further settlement takes place. Fluid, which it is hoped, will now be less dangerous to human and animal health, drains from this secondary tank into a leachate area. What is important in the context of safety from pathogens is design and testing so that the soil enables evaporation and absorption, killing viruses and biotically active microorganisms, rather than pathogens destroying the water table on which the entire community depends for clean water.

3 In that context, it is essential for local authorities to ensure that applications for houses unconnected to sewage systems are consistent with proper planning and sustainable development principles. With that in mind, no other inference appears reasonable on the face of the papers, Clare County Council initiated a policy from November 2004 that only particular qualified environmental engineers would be accepted for certifying, in the context of the planning process, that one-off housing with septic tanks conformed to appropriate environmental-protection standards. Shortly after that policy was initiated and was announced on the local authority website, Mr Mungovan applied to be admitted to what was called the “Register of Independent Suitably Qualified Agents/Consultants Wastewater Treatment”. He was refused by letter from the local authority dated 7 March 2005. As a result, an important line of work was closed to him. He again applied on 26 November 2008 but was again informed by letter dated 16 March 2010 that he was not to be admitted. This was based, or so it was asserted, on information available to the local authority. He protested this refusal. The local authority again reviewed his suitability in the light of further documentation proffered by him, but this was stated to be insufficient for admission; letter dated 28 May 2010. On 11 April 2011, his solicitors became involved and wrote to the local authority protesting their claim that there had been deficiencies in a site report he had submitted and protesting the decision not to admit him onto the register. Thus, there were four separate refusals for his inclusion onto the register: 7 March 2006, 16 March 2010, 28 May 2010 by way of a review of the prior decision, and 11 April 2011. By plenary summons dated 4 November 2011, seven months later, these proceedings were commenced. These claimed damages for tort, defamation and misfeasance in public office, and for public law declarations condemning the policy and the decisions.

History of proceedings

4 The subsequent history of these proceedings illustrates why a unitary trial is the preferred mode to dispose of cases, unless special circumstances enable the trial of a preliminary issue. That is the default position unless a court is convinced that some aspect of the case may safely be tried on its own. It should be born in mind that preliminary issue trials can risk leading to the kind of decision where a court has not had the chance to see all of the issues in a case in the round and in the light of each other. In principle there should be a unitary trial; O'Sullivan v Ireland [2019] IESC 33. That is especially so where the determination of one fact, such as the passage of time, is considered in isolation from facts which might impact on a court's discretion or where the issue to be tried, such as the interpretation of a contract, may depend on the background against which an agreement was set. In Weavering Macro Fixed Income Fund Ltd (In Liquidation) v PNC Global Investment Servicing (Europe) Ltd [2012] 4 IR 681, at pages 699-700 Clarke J identified the fundamental principles to be considered before there should be any departure from the unitary trial principle:

As is clear from those authorities the trial of a preliminary issue under the rules is concerned with circumstances where it is possible to separate out a legal issue which can be determined on the basis of facts agreed either generally or for the purposes of the preliminary issue. It is also possible, under O.35, to have an issue of fact tried where the case will almost completely depend on a resolution of that factual question. What is, however, clear from all of the authorities is that the trial of an issue, formally separated out as a preliminary issue in the sense in which that term is used in the rules, is a practice which is to be adopted with great care by virtue of the experience of the courts that “the longest round is often the...