IESC 4 · Supreme Court

[2001] IESC 4

THE SUPREME COURT

JUDICIAL REVIEW

211/99

Keane C.J.

Denham J.

Fennelly J.

BETWEEN

Dónal de Roíste

APPLICANT/APPELLANT

and

Minister for Defence, Ireland and the Attorney General

RESPONDENTS

Judgment of Mrs. Justice Denham delivered on the 19th day of January, 2001.

1. Issue

The issue on this appeal is a preliminary issue in the action and is as to delay in the commencement of judicial review proceedings.

The applicant/appellant, hereinafter referred to as the applicant, brought judicial review proceedings of actions giving rise to his

compulsory retirement from the Defence Forces in 1969.

2. Proceedings

On 23rd November, 1998, upon a motion made ex parte to the court for leave to apply by way of an application for judicial review,

the High Court (Geoghegan J.) ordered that the applicant’s time for making the application for leave to apply for judicial review was

extended to that date. However, the learned High Court judge specifically granted:

“liberty to the Respondents to argue the time point at the hearing of these proceedings”.

On 18th February, 1999, the High Court (Kinlen J.) ordered that the preliminary issue be listed for hearing. The orders sought included:

“(i) An Order dismissing or staying the Applicant’s claim herein on the grounds that there has been inordinate and/or

inexcusable delay in the commencement of the proceedings herein

(ii) An Order determining that the Applicant’s claim for Judicial Review was not made promptly and within six months of the

impugned decision and that the Applicant is thereby barred or precluded from claiming the relief sought therein

(iii) In the alternative an Order setting aside the Order of this Honourable Court dated the 23rd day of November 1998

granting the Applicant leave to apply for Judicial Review.

(iv) An Order that the Applicant’s claim for damages for breach of constitutional rights unconstitutional and improper

removal from office abuse of process wrongful and unlawful arrest and imprisonment defamation and for damage to his

good name reputation career and livelihood are for an account and for payment of monies in statute barred pursuant to

the Statute of Limitations 1957 as amended by the Statute of Limitations (Amendment) Act 1991.”

3. The High Court

On the hearing of the preliminary issue the High Court (McCracken J.), on 28th June, 1999, ordered that the applicant’s proceedings

be dismissed. McCracken J. held as follows:

“In summary, therefore, it is my view that the Applicant, while undoubtedly having suffered a traumatic experience, has

not shown that he was so affected by that experience that he was unable to issue these proceedings over such a

lengthy period. He was able to work, he was able to marry and bring up a family, and indeed Dr. O’Loughlin says in her

history of the complaint that the Applicant seemed to deal with the problems of alcohol and drug abuse and resolved his

dependence. In the light of all these matters I do not think he has discharged the onus which is upon him to show the

Court that there is good reason for extending the period within which this application should be made.”

The learned High Court Judge, having analysed the provisions of Order 84, Rule 21 of the Rules of the Superior Courts, also considered

cases where the Court has struck out proceedings on the grounds of inordinate and inexcusable delay. He summarised the principles

as originally set down in Rainsford v. Corporation of Limerick (Unreported, High Court, Finlay P., 31st July, 1979, noted at [1984]

I.R.152) as follows:

“The Courts should consider whether the delay was inordinate and whether it was inexcusable.

There are no real grounds for dismissing the proceedings if the delay has not been both inordinate and inexcusable.

The onus of establishing that the delay has been both inordinate and inexcusable lies on the parties seeking to dismiss the

proceedings.

Even where the delay has been both inordinate and inexcusable, the Court may allow the proceedings to continue if on

the facts it finds that the balance of justice is in favour of this course.

Consideration should be given to the extent of the litigants (sic.) personal blameworthiness for delay, even where he has

acted through a Solicitor.”

McCracken J. held that:

“There can be no doubt that in the present case the delay was inordinate. In my view, for the reasons given above in

relation to Order 84 Rule 21, I would also hold that the delay was inexcusable. There only remains therefore, to consider

whether the balance of justice is in favour of or against allowing the case to continue taking into account the extent of

the Applicant’s personal blameworthiness.”

On the issue of the balance of justice the learned judge, having stated that the applicant’s effective dismissal from the Defence

Forces must have been a very traumatic experience, especially in view of the attitude of his family, held:

“I do not think that there is any convincing evidence that this trauma was such as to render the Applicant incapable of

issuing these proceedings, and indeed neither the psychologist nor the psychiatrist who have given evidence go this far.

A couple of years after the events took place, the Applicant chose to leave the country and seek to make a new life

elsewhere. I am not for a moment blaming him for taking this action but I think it points to an attitude on his part of

wanting to leave the whole unfortunate experience behind him and start afresh. I think this was a deliberate choice on his

part, taken at a time when he could have sought relief through the Courts. Unlike the infant cases, the Applicant was at

all times personally in a position to instruct Solicitors and to issue proceedings, and did not do so for some twenty nine

years. In my view he is totally blameworthy in the sense that that word is used in the judgment I have referred to. This is

not to imply that he did anything wrong, but rather that he is the person responsible for proceedings not having been

issued. I should also add that the Respondents cannot in any way be blamed for the delay.”

McCracken J. also took into account the fact that one potential witness who could have given direct evidence of the matter had died

and that two persons who could have given evidence as to the reasons behind the enforced retirement of the applicant had died also.

Further, he took into account the fact that twenty nine years had elapsed since the events and that memories would be severely

dimmed. He did not consider that the balance of justice required that the case be allowed to proceed. The learned trial judge

distinguished the words of McCarthy J. in The State (Furey) v. Minister for Justice and Attorney General [1988] I.L.R.M. 89 at p.100

where McCarthy J. stated:

“I see no logical reason why delay, however long, should, of itself, disentitle to certiorari any applicant for that remedy

who can demonstrate that a public wrong has been done to him - that, for instance, a conviction was obtained without

jurisdiction, or that, otherwise, the State has wronged him and that the wrong continues to mark or mar his life.”

McCracken J. concluded in relation to those words:

“This remark was clearly obiter in the context of that case, although I fully accept that in considering the requirements of

justice, the fact that the Plaintiff may have been wronged by the state authorities rather than by a private individual

must be a relevant consideration. However, I would emphasis (sic.) that this was not an absolute statement that delay

cannot disentitle an Applicant but rather that it should not “of itself” disentitle an Applicant. In fact, I think that this

comment is not inconsistent with the principles I have quoted already and I would dismiss these proceedings not solely

because of the delay in itself, but because, in addition to such delay, there is the element of blameworthiness on the part

of the Applicant and the fact of possible prejudice to the Respondent.”

4. Appeal and Submissions

Against that decision the applicant has appealed submitting that the learned trial judge erred. The grounds of appeal moved by

counsel were as follows:

“3. The High Court erred in failing to hold that the balance of justice lay in allowing the case continue to trial in a

situation where the learned Judge found that the events were unusual that gave rise to the case.

4. The High Court erred in failing to hold that the balance of justice lay in allowing the case continue to trial in a situation

where there is extensive documentation in the possession of the Respondents and not in the possession of the Applicant

and where the Respondents claim that three potential witnesses have died in the intervening period and where the trial

Judge accepted the Applicant’s argument that only one of the three deceased witnesses give direct evidence of the

matters which took place.

5. The High Court erred in law and in fact in refusing to allow the matter to proceed to trial not solely on the grounds of

delay but on, inter alia, the fact of possible prejudice to the Respondent in a situation where the Respondents did not

establish or prove any prejudice and where they have all the documentation in their care, management, power and or

procurement and the Appellant cannot even get a copy of any statement he may have made.

6. That the learned High Court Judge erred in law in his interpretation of the judgment of the Supreme Court (the late

McCarthy J) in re the State (Furey) -v- Minister for Defence and the Attorney General [1988] ILRM 89 where he said

“Further, I see no logical reason why delay, however long, should, of itself disentitle to certiorari any Applicant for that

remedy who can demonstrate that a public wrong has been done to him - that, for instance, a conviction was obtained

without jurisdiction or that, otherwise, the State and (sic.) wronged him and that the wrong has continued to mark or mar

his life” which is the situation herein.

7. The learned High Court Judge erred in law in failing to give sufficient weight to the alleged public wrong aspect of the

Applicant’s wrong which is continuing.

8. The High Court errect (sic.) in fact in holding that the Applicant chose to leave the country and seek to make a new

life elsewhere where the evidence was that the Applicant was compelled to do so by reason of the circumstances he was

put in, where he was an exile in his own country and because of the peculiar reason for terminating his career, even in

exile in America the mark on his character continued to mar him there. The Judge erred in failing to take into consideration

the vastness of the penalty imposed on the Applicant from which there is no relief.

9. That the learned High Court Judge erred in law and in fact in failing to take into account the impecunious nature of his

circumstances where he felt himself in exile suffering a wrong in what the learned Judge accepted to be unusual

circumstances in a military system where there was no direct access to legal advice and in a system where there was no

legal aid and an extra-legal provision had been invoked by the Respondents against the Applicant and where he acted

through a Solicitor who disappeared in suspicious circumstances and no record is available in what the learned Judge

already held “even if the events were as unusual as they appear to have been in this case”.

10. Further, the learned High Court Judge erred in fact in holding an element of blameworthiness on the part of the

Applicant without specifying the extent of the Applicant’s alleged blameworthiness for delay and erred in fact in holding

that the Applicant was able to work, to marry and to bring up a family when in fact he had tried and failed.

11. The learned Judge erred in law in holding that the was not concerned with the merits of the Applicant’s case save

insofar as they may affect the question of delay in a situation where he held it was an unusual situation.”

Written submissions were presented on behalf of both parties. Mr. Ercus Stewart, S.C., counsel for the applicant, opened Order 84

Rule 21 of the Rules of the Superior Courts and argued that there were good reasons in this case for extending the time for this

application. He relied on The State (Furey) v. Minister for Defence. Counsel referred to the evidence that was before the Court that

the applicant had suffered from post traumatic stress disorder. In answer to queries from the Court he did agree that the applicant

had a solicitor at the time but that that solicitor had left the jurisdiction, though he did not specify when this occurred. He submitted

that it was a unique case and that on the papers prima facie there was a wrong done to the applicant and that he was entitled to an

order. He submitted that the delay was excusable, that it is an exceptional situation which should enable him to have a trial. That

while there has been delay, it has been explained by the applicant and that the applicant is entitled on the balance of justice to a

hearing.

Mr. Brian McGovern, S.C., counsel for the respondents, did not go into the merits of the applicant’s case but said the State did not

accept the facts alleged. He submitted that there was inordinate delay and that it was inexcusable. He pointed out that the applicant

had had a solicitor initially which indicated that he had considered seeking legal redress. He argued that there was no evidence that

the applicant could not deal with the matter initially. He submitted that the applicant had failed to show that the delay was

excusable. Counsel argued that the judgment of the High Court was correct in law. Counsel referred to and relied upon Order 84 Rule

21 of the Rules of the Superior Courts and said the application was not made promptly or within six months and that no reasonable

basis had been given for the Court to exercise its inherent discretion. He also argued that all the claims are statute barred. This

matter was not pursued by the applicant who was essentially seeking a declaratory order in relation to his good name. Counsel for the

respondents submitted that the delay in this case was so long that there could not be justice between the parties; that justice

implies fairness for both parties and there would be prejudice to the respondents in these circumstances if the application proceeded.

5. Decision

5.(i) Judicial Review

The applicant is seeking judicial review of decisions made in 1969. The Rules of the Superior Courts, Order 84 Rule 21, state that an

application for judicial review shall be made promptly and in any event within three months from the date when grounds for the

application first arose or six months when the relief sought is certiorari. However, the Court has discretion to extend time if the Court

considers there is good reason. The onus is on the applicant to meet the conditions. It is for the applicant to show that he has made

the application promptly and within the time limit or that there is good reason to extend the time within which the application may be

made. The conditions are not rigid as judicial review is a discretionary remedy. There remains in the Court an inherent discretion to be

exercised according to the requirements of justice in the circumstances of each case.

Judicial review is an important legal remedy, developed to review decision-making in the public law domain. As the arena of public law

decision-making has expanded so too has the volume of judicial review. It is a great remedy modernized by the Rules of the Superior

Courts, 1986, and by precedent. However, there is no absolute right to its use, there are limitations to its application. The granting of

leave to apply for judicial review and the determination to grant judicial review are discretionary decisions for the Court. This has

been set out clearly in precedent. The first condition as to time is that the application be brought promptly. As to whether the

application is prompt will depend on the circumstances. In some circumstances even if the application is brought within months of the

decision being challenged it may not be sufficiently prompt. Thus in The State (Cussen) v. Brennan [1981] I.R. 181 an application

made within four months of a decision was refused. Henchy J. stated, at p.196,

“What particular period of inactivity will debar a person from getting an order such as mandamus or certiorari will depend

on the circumstances of the case. I have no doubt that in this case it would be unjust to grant either mandamus or

certiorari.”

This concept of delay is analysed from both the procedural and substantive aspect. The court in exercising its discretion goes further

than a merely procedural analysis. In this case there are no statutory limitations and the Court exercises its full discretion.

The analysis commences with the obligation to bring the application “promptly”. It is the key word which is the foundation of the

process. As to whether the application is prompt will depend on all the circumstances of the case.

Judicial review is the modern proceeding which has developed from the prerogative writs. The development of these public law

remedies over the last thirty years has been one of the significant growth areas in Ireland and the common law world. At a time when

the state and public agencies are growing these remedies are important methods of access to the courts. As it was stated in The

State (Abenglen Properties Ltd.) v. Dublin Corporation [1984] I.R. 381 at 392 by O’Higgins C.J.:

“The remedy of certiorari first emerged in the early years of the seventeenth century as the means by which the Court of

King’s Bench assumed a superintendence and control over the exercise of their jurisdiction by justices of the peace. The

court was concerned that these justices would exercise their functions properly and that there would be a uniform

administration of the law throughout the country. For that reason it was open to anyone - even a stranger to the

proceedings - to make complaint of irregularity and to seek to have the proceedings quashed. From early on, however,

the court exercised a discretion as to whether the relief should be granted.

From this emergence three centuries ago of the means by which the Court of King’s Bench controlled the judicial process

of lower courts, the remedy of certiorari has been developed and extended to reach far beyond the mere control of

judicial process in courts as such. To-day it is the great remedy available to citizens, on application to the High Court,

when any body or tribunal (be it a court or otherwise), having legal authority to affect their rights and having a duty to

act judicially in accordance with the law and the Constitution, acts in excess of legal authority or contrary to its duty.

Despite this development and extension, however, certiorari still retains its essential features. Its purpose is to supervise

the exercise of jurisdiction by such bodies or tribunals and to control any usurpation or action in excess of jurisdiction. It

is not available to correct errors or to review decisions or to make the High Court a court of appeal from the decisions

complained of. In addition it remains a discretionary remedy.”

The discretion of the Court is not absolute but exercised in accordance with principles. In reaching a decision the Court may weigh

conflicting rights to achieve a balance which is just. In The State (Abenglen Properties) v. Corporation of Dublin O’Higgins C.J., at

pp.392-393 of the report discussing the nature of the discretion of the court, stated:

“This discretion remains unfettered where the applicant for the relief has no real interest in the proceedings and is not a

person aggrieved by the decision: see The State (Doyle) v. Carr; [1970] I.R. 87; The State (Toft) v. Galway Corporation

[1981] I.L.R.M. 439; .Where, however, such applicant has been affected or penalised and is an aggrieved person, it is

commonly said that certiorari issues ex debito justitiae. This should not be taken as meaning that a discretion does not

remain in the High Court as to whether to give the relief or to refuse it. There may be exceptional and rare cases where a

criminal conviction has been recorded otherwise than in due course of law and the matter cannot be set right except by

certiorari. In such circumstances the discretion may be exercisable only in favour of quashing: see The State (Vozza) v. Ó

Floinn [1957] I.R. 227. In the vast majority of cases, however, a person whose legal rights have been infringed may be

awarded certiorari ex debito justitiae if he can establish any of the recognised grounds for quashing; but the court retains

a discretion to refuse his application if his conduct has been such as to disentitle him to relief or, I may add, if the relief is

not necessary for the protection of those rights. For the court to act otherwise, almost as of course, once an irregularity

or defect is established in the impugned proceedings, would be to debase this great remedy.”

In G. v. Director of Public Prosecutions [1994] 1 I.R. 374, Finlay C.J. set out matters on which an applicant must satisfy the Court.

These included a requirement that the application be made promptly and in any event within the three or six months time limits

provided for by Order 84, Rule 21(1), or that the Court was satisfied that there was a good reason for extending the time limit. Finlay

C.J. stressed that the factors he had mentioned were not exclusive and that the Court had a general discretion. This discretion is

exercised in all the circumstances of the case. Such a discretion is not exercised in accordance with an exhaustive list of factors. It

is exercised in light of the facts of a particular case. Justice is not achieved in a vacuum.

5.(ii) Facts in this case

The onus rests on the applicant to show that he has brought the application promptly. The facts were set out in the affidavits. In

essence, the applicant has stated that he was so traumatised by the events of 1969 in the Defence Forces and his family’s reaction

thereto that he was unable to make the application to court because he was suffering from post traumatic stress disorder. In 1997

the applicant’s sister was a candidate in the Presidential election and the issue of his retirement from the Defence Forces was the

subject of stories in the media which publicity the applicant found traumatic. The findings of the learned High Court Judge have been

set out in this judgment. I would affirm those findings of fact. There was evidence upon which he could make the determinations. The

essence of the issue is whether there is “good reason” to extend the time. The onus is on the applicant to prove a good reason. This

he has not done. The evidence of his conduct in 1969 and subsequent years indicates a choice, not an incapacity or inability or other

good reason.

5.(iii) Words of McCarthy J.

The applicant relied on the words of McCarthy J. in The State (Furey) v. Minister for Justice and Attorney General [1988] I.L.R.M. 89

at p. 100

“I see no logical reason why delay, however long, should, of itself, disentitle to certiorari any applicant for the remedy

who can demonstrate that a public wrong has been done to him - that, for instance, a conviction was obtained without

jurisdiction, or that, otherwise, the State has wronged him and that the wrong continues to mark or mar his life.”

The applicant submitted that the learned High Court judge had erred in his interpretation of these words of McCarthy J. These words

go to the essence of the issue before the Court; the nature of the discretion of the court.

These words were obiter dicta. Further, they appear in a judgment where the delay was one of four years. That is of an entirely

different magnitude to the delay in this case of 29 years.

The Rules of the Superior Courts set out a scheme which indicates a specific, short, time span within which to bring an application,

whilst also retaining a discretion in the Court to allow an application if there is good reason. The discretion is rooted in the writs and

common law. There have been many cases over the centuries where the nature of the discretion of the Court has been considered.

In general, courts have stressed that the remedy is discretionary.

For example, in In Re Lord Listowel’s Fishery at Beale [1875] I.R. 9 C.L. 46 a reserved judgment of the Queens Bench delivered by

Fitzgerald J., it was stated, at p. 49:

“It was urged that, as Lord Listowel was the party aggrieved by the decision of the Commissioners, he was entitled to the

writ as a matter of right, and that the application was not one resting in the judicial discretion of the Court.

We do not agree in this proposition. The general rule is, that the writ does not go as of right, save on the application of

the Attorney General, in his official capacity, on behalf of the Crown: Rex v. Clace 4 Burr. 2458, and Rex v. Eaton 2 T.R.

89. It is otherwise a matter of judicial discretion. Thus, in the case of the Mayo Presentments 14 Ir. C.L.R. 392, 401,

Lefroy, C.J., says - “We are all agreed that these writs are not granted ex debito justitiae, but at the discretion of the

Court, that is, a judicial discretion:” and in The Queen v. Newborough L.R. 4 Q.B. 585, 589 it is said - “It is in the

discretion of the court to grant or refuse the writ and it is not a matter of right.” If it was otherwise the writ could never

be withheld, and yet our daily practice is that the Court grants or refuses the writ at its discretion, i.e. in the exercise of

a sound judicial discretion.

The practice seems to have been so from an early period: thus in 8 Mod.R. 331, where it was contended that the Court

should grant the certiorari, which was a “writ of right”, it was answered by one of the Judges - “That a certiorari was not

a writ of right, for if it was it could never be denied, but it hath often been denied by the Court.”

But though such is the general rule, it is equally true, that if a party directly aggrieved by the order of an inferior tribunal

can show that the Court had no jurisdiction, or had in substance exceeded its jurisdiction, or was improperly constituted,

the general course is to award the writ as of common right, unless the applicant has, by his conduct, forfeited that right,

or rendered it inexpedient that the Court should interfere: The Queen v. The Justices of Surrey L.R. 5 Q.B. 472.”

Thus, even if an applicant has suffered a grievance, his conduct will be a factor for the Court to consider: The State (Hunt) v. Circuit

Judge, Midland Circuit [1934] I.R. 196. Where there is a conviction on record made without jurisdiction it is probable that the Court

will only exercise its discretion one way, i.e. by granting certiorari: State (Vozza) v. Ó Floinn [1957] I.R. 227. However, even there

factors may have to be considered, such as the conduct of the applicant and alternative remedies. As Maguire C.J. stated in the

Vozza Case at p. 244:

“I find it difficult, however, to imagine conduct on the part of an applicant for certiorari which would disentitle him to an

order of certiorari in regard to a conviction of a crime of any sort, where it is established that it was made without

jurisdiction”.

Implied in this statement is the necessity for the Court to consider the facts of a case in the exercise of its discretion and that even

in the case of a criminal conviction there is conduct, although it is hard to imagine, which would disentitle the applicant to an order

for certiorari.

Thus, the general rule is that certiorari is a discretionary remedy. However, if, for example, a conviction was made without jurisdiction

the general course would be for the Court to grant the application. There are no absolutes in the exercise of a discretion. An absolute

rule is the antithesis of discretion. The exercise of a discretion is the balancing of factors - a judgment.

In analysing the facts of a case to determine if there is a good reason to extend time or to allow judicial review, the Court may take

into account factors such as; (i) the nature of the order or actions the subject of the application; (ii) the conduct of the applicant;

(iii) the conduct of the respondents; (iv) the effect of the order under review on the parties subsequent to the order being made and

any steps taken by the parties subsequent to the order to be reviewed; (v) any effect which may have taken place on third parties

by the order to be reviewed; (vi) public policy that proceedings relating to the public law domain take place promptly except when

good reason is furnished. Such list is not exclusive. It is clear from precedent that the discretion of the Court has ever been to

protect justice. When criminal convictions are in issue the matter of justice may be very clear. However, it is the circumstances of

each case which have to be considered. In this case it was the actions leading to the applicant’s enforced retirement from the army,

in 1969, which are in issue. The learned High Court judge held that the applicant chose a solution. The applicant made a choice - he

left the country. His conduct is one of the factors to consider. There has been considerable delay since the events in issue. Relevant

witnesses upon which the respondents might rely in any such application are dead. The applicant’s medical evidence has not met the

onus of proof required. It is clear that there were facts upon which the learned trial judge could make the determination he did. I

would agree with his determination and would affirm the decision.

Further, the High Court’s analysis of the obiter dicta of McCarthy J. was in accordance with precedent and reasonable. The words of

McCarthy J. were short and obiter in a case with different circumstances. They do not indicate an absence of discretion in the Court.

I agree with McCracken J. that the words of McCarthy J. were not an absolute statement that delay cannot disentitle an applicant,

but rather that it should not “of itself” disentitle an applicant. Here is an echo of Fitzgerald J. in the Listowel Fishery case and Maguire

C.J. in the Vozza case.

The general rule is that an order of certiorari is a discretionary remedy. The circumstances of each case have to be considered. The

general course is to grant certiorari if, for example, a criminal conviction has been ordered in excess of jurisdiction. However, the

circumstances of the case are considered by the Court in exercising its discretion and the Court has a discretion to refuse the relief

if, for example, the conduct of the applicant disentitles him or her to that relief. The facts and circumstances of each case have to

be considered. Whereas the applicant is in a stronger position if he has been particularly aggrieved, the Court retains its discretion in

all applications. Factors which may also be relevant in a particular case are an alternative remedy and/or a pending appeal.

The actions the applicant seeks to have reviewed are serious, they did affect his life, but his subsequent conduct, the considerable

delay in seeking judicial review proceedings, and the prejudice to the respondents, are circumstances forming a basis for the Court to

hold that he has not shown good reason for extending the period within which the application can be made. Thus, the grounds are

not delay “of itself” but involve the exercise of discretion in considering the whole circumstances of the case.

5.(iv) Inordinate and Inexcusable delay

The High Court also considered the law relating to inordinate and inexcusable delay. Reference was made to Rainsford v. Limerick

Corporation [1984] I.R. 152 and the principles set out therein by Finlay P. This, and other cases referred to, relate to the effect of

delay on the prosecution of claims. This was described by Henchy J. in O’Domhnaill v. Merrick [1984] I.R. 151, at p. 157, as:

“Whether delay should be treated as barring the prosecution of a claim must inevitably depend on the particular

circumstances of a case. However, where, as in this case, the delay has been inordinate and inexcusable, such delay is

not likely to be overlooked unless there are countervailing circumstances, such as conduct akin to acquiescence on the

part of the defendant, or inability on the part of an infant plaintiff to control or terminate the delay of his or her agent. In

all cases the problem of the court would seem to be to strike a balance between a plaintiff’s need to carry on his or her

delayed claim against a defendant and the defendant’s basic right not to be subjected to a claim which he or she could

not reasonably be expected to defend.”

McCracken J. analysed the circumstances of this case and determined that the delay was inordinate and inexcusable, that the

balance of justice was against allowing the application to continue. He dismissed the proceedings because of the delay, the element

of blameworthiness of the applicant and the possible prejudice to the respondents. I would affirm these findings and determination.

The time element in judicial review proceedings requires early application to court by an applicant. This is indicated by the

requirement that the application be made promptly, and in any event within three or six months from when the grounds for application

arose, unless there is good reason to extend the period within which the application shall be made. This is a shorter time span than

the time required in other proceedings, for example a plenary summons. Time is more of the essence, more urgent, in judicial review

proceedings. Indeed in some areas of judicial review, by statutory requirement, an application must be made within weeks. Thus, the

case law relating to dismissing proceedings for lack of prosecution has some, but not great, relevance to applications for judicial

review. Such cases may be helpful in analysing the reason for delay to see if it is a good reason and to achieve a just decision.

In this case, it is clear that, from both the judicial review aspect and from the point of view of other proceedings, delay defeats the

applicant. These proceedings have perhaps strayed somewhat outside the judicial review application but in so doing have brought

clarity to the applicant’s overall situation.

6. Conclusion

For the reasons stated I would dismiss the appeal and affirm the judgment and order of the High Court.