High Court: Application for leave to review GSOC refusal of complaint due to delay was brought out of time

High Court: Application for leave to review GSOC refusal of complaint due to delay was brought out of time

The High Court has refused an application for leave to proceed by way of judicial review that was brought out of time by a woman whose complaint to GSOC was refused as being inadmissible for delay.

Delivering judgment for the High Court, Ms Justice Siobhán Phelan determined that the applicant had failed to identify any arguable grounds for contending that the decision to find her complaint inadmissible on time grounds was “unfairly or otherwise than bona fide made, factually sustainable and reasonable.” Further the applicant was held to have fallen foul of the requirement “to move promptly and within three months as prescribed under O.84, r.21 of the Rules of the Superior Courts.”


The applicant claimed to have been assaulted by a hotel employee in Galway in December 2008. The Director of Public Prosecutions (DPP) directed that an adult caution be offered to both parties. The employee accepted the caution, and no prosecution ever ensued.

The applicant corresponded with the DPP in 2011 and again in 2020 - 2021 seeking a review and an explanation for its direction. In April 2021, 12 years following the alleged assault, the applicant complained to the respondent (GSOC) concerning the conduct of the investigation and prosecution by Gardaí.

In a letter dated 4 May 2021, further information was sought from the applicant and she was apprised of the requirement for “good reasons” to grant an extension of time to complain. When asked why she failed to complain to GSOC within 12 months of the event complained of as prescribed by s.84(1) of the Garda Síochána Act 2005, the applicant contended that it was difficult to complain about Gardaí whilst living in a small town and that she had been traumatised by the events.

Having considered the documentation provided by the applicant, GSOC communicated to the applicant its decision of 23 July 2021 to refuse her complaint as being inadmissible for delay by letter dated 26 July 2021.

Subsequently, the applicant alleged for the first time that she had made a complaint within six months at the local Garda Station which Gardaí had failed to lodge with GSOC. Correspondence continued until 20 December 2022, when the applicant asserted that she had only became aware of the Gardaí’s misuse of the Adult Caution Scheme in her case upon conducting her own research in June 2021, despite becoming aware of the events surrounding same in 2009. The applicant also contended in this letter that she had ample grounds to proceed by way of judicial review, but did not pursue same at that time.

GSOC contended inter alia that the applicant had failed to commence proceedings within three months of the decision of 23 July 2021.

The High Court

Ms Justice Phelan considered the test to be applied in an application for leave as set out in Order 84, rule 20 of the Rules of the Superior Courts 1986 (RSC).

Noting the discussion of that test and its associated principles in G v. Director of Public Prosecutions [1994] 1 I.R. 374, Gordon v. Director of Public Prosecutions [2002] 2 I.R. 369 and O’ Doherty v. Minister for Health & Ors. [2022] 1 ILRM 421, Ms Justice Phelan observed that “It is now well settled law that for a prima facie case to be established, it must be arguable. A point of law is only arguable if it could, by the standards of a rational preliminary analysis, ultimately have a prospect of success (see O.O. v. Minister for Justice [2015] IESC 26) and this is the threshold which an applicant for leave must meet… In essence, it is the same test which arises when proceedings are sought to be struck out on the grounds that they are bound to fail, or the test that is normally required in order to seek an interlocutory injunction.”

Acknowledging that the screening function performed by the court upon an application for leave imposes a “light burden” on the applicant, the High Court warned that it is not a “non-existent threshold”.

Examining the communication of February 2023 which informed the applicant that GSOC was precluded from continuing to correspond with her over the complaint and would take no further action, the court found GSOC’s position to be correct in light of s.88(1)(c) of the 2005 Act and that its only potential option was to entertain a fresh complaint from the applicant based on further evidence.

Recognising that GSOC is “a creature of statute and has not been vested with a review power”, the Court found it unfortunate that the terms of GSOC’s correspondence had suggested that its decision could be reviewed in light of new evidence, creating ambiguity as to its powers and processes.

Finding this ambiguity to support the existence of grounds to argue the applicant’s entitlement to an extension of time to challenge the decision to treat her April 2021 complaint as inadmissible, the court found it “noteworthy” that the applicant asserted to GSOC that she had ample grounds to seek judicial review but did not do so. In any event, the court found that no new evidence had been presented by the applicant to GSOC.

Considering that “it may be unsafe to refuse the Applicant leave to proceed by way of judicial review on this application on time grounds only where arguable grounds for seeking an extension of time to challenge the July, 2021 decision are demonstrated at least in respect of some (but in my view not all) of the delay and where the proceedings are capable of being reconstituted through appropriate amendment to ensure that the real issues in the case are properly pleaded.”

Moving to consider whether it is arguable that GSOC’s opinion that no good reasons had been demonstrated by the applicant to warrant an extension of time was unsustainable in law, the court considered the applicant was required to show that it was arguable that “the reasons she identified to the Respondent in support of an extension of time…by the Respondent were such that the Respondent did not fairly or rationally or bona fide conclude that she had failed to explain the delay and had not provided a justifiable excuse for the delay.”

Examining O’Donnell v. Dun Laoghaire Corporation [1991] ILRM 301, Moran v. Garda Síochána Ombudsman Commission [2011] IEHC 237, Shell E & P Ireland Limited v. McGrath [2013] 1 I.R. 247, Ms Justice Phelan found that the test of whether there are good reasons to extend time “is an objective one” and that it was open to GSOC to conclude that the applicant had not advanced good reasons.

Concluding that the court’s role was not to substitute its view for that of the decision-maker, Ms Justice Phelan identified no arguable grounds advanced by the applicant for contending that the decision finding her complaint inadmissible was amenable to judicial review and ruled that the applicant’s application was out of time pursuant to the RSC.


Accordingly, the High Court refused leave and dismissed the application.

McDonagh v. Garda Síochána Ombudsman Commission [2024] IEHC 200

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