New public interest test to be introduced to judicial review process

Jim O'Callaghan

Justice, home affairs and migration minister Jim O’Callaghan has now published the general scheme of the Civil Reform Bill, which also proposes major changes to the discovery process and court jurisdiction.

The minister said the bill will implement the recommendations of the review of the administration of civil justice completed by former High Court president Mr Justice Peter Kelly in 2020.

The government has previously linked the implementation of the recommendations to Ireland’s economic competitiveness.

However, the general scheme’s proposals on judicial review go further than the Kelly recommendations, which only related to the leave to apply stage.

The proposed bill will put both the leave to apply stage and the substantive hearing stage of judicial review proceedings on a statutory basis.

It is proposed that a remedy under judicial review may only be granted where the following conditions are met:

• the respondent has acted unlawfully;
• the applicant has suffered harm or prejudice;
• any error of law, or procedural error, was material to the decision;
• the interests of justice require such a remedy to be granted, taking into account both the interests of the applicant and the public interest;
• and the granting of the remedy leaves the applicant in a significantly better position.

Mr O’Callaghan said the reforms “will ensure the system cannot be misused on purely technical grounds, that costs are reduced where possible and litigants have sufficient standing to properly challenge decisions”.

He continued: “I recognise that citizens have a right to challenge what they perceive as unlawful decisions of public bodies. This is a fundamental part of the checks and balances of a liberal democracy.

“However, this right must be protected in a balanced manner which also protects the common good.

“Through the forthcoming legislation, I will make clear that judicial review is a process whereby someone who has suffered harm or prejudice because of an unlawful action of a public body may seek a remedy from the courts.

“However, any remedy will consider the public interest as well as the interests of the applicant.”

Lawyers have in recent months pushed back against the government’s narrative that judicial reviews are slowing down housing and infrastructure delivery.

The bill also proposes reforms in relation to discovery and civil procedure in the courts, as well as a change to the monetary limits on the jurisdiction of the Circuit and District Courts.

Mr Jim O’Callaghan said: “The Kelly report found that economically stronger parties frequently weaponised the current discovery regime to effectively impede the less well-resourced party in the conduct of proceedings.

“This bill replaces that process with a new system for ‘production of documents’.

“This means production will be restricted to documents which are relevant and material to the outcome of the proceedings, reasonably likely to be relied on at trial and where production of those documents is necessary for the administration of justice.

“These more stringent criteria should minimise both delay and cost in the conduct of civil litigation in the State and achieve greater equality between parties.”

He added: “The bill will also increase the monetary jurisdiction of the District Court to €20,000 and that of the Circuit Court — including in relation to personal injury actions — to €100,000, considering inflation since the last such changes in 2013.

“These changes will require affected cases to be heard in lower courts and should reduce legal costs.

“The bill contains a number of other civil reform measures that are likely to lead to more orderly conduct of civil litigation, cost savings for the parties, and the efficient use of court resources.”

The proposed bill will also provide for a suite of civil reform measures including:

• creation of case conduct principles;
• presumption against granting of adjournments;
• pre-action protocols extended beyond clinical negligence proceedings;
• limiting the term of a lis pendens;
• deemed discontinuance of civil actions;
• plaintiffs in personal injuries actions to distinguish between pre-existing injuries and those which are the subject of the claim; and
• extension of rules committees’ remit to include rules of evidence in civil proceedings.

The minister concluded: “I am confident that the Civil Reform Bill will remove weaknesses in the current law, eliminate impediments to progress and deliver reform that benefits the public. It will also reserve the right of the citizen to ensure public bodies act lawfully and are accountable for their decisions.

“This bill is progressing in tandem with ongoing progress in relation to broader access to justice initiatives. These include the Courts Service modernisation programme and the Judicial Planning Working Group, alongside ongoing technology improvements and operational reforms being delivered by the Courts Service.

“Overall, I believe these collective modernisation and reform measures will deliver significant efficiencies in terms of access to justice and the reduction of legal costs.”