Judicial review cannot be raised as a defence in Circuit Court rates recovery proceedings due to lack of jurisdiction.

An Chúirt Uachtarach

The Supreme Court

O’Donnell J

McKechnie J

MacMenamin J

Charleton J

Finlay Geoghegan J

Supreme Court appeal number: S:AP:IE: 2017: 000144

[2019] IESC 043

Court of Appeal record number: 2016 no 157

[2017] IECA 213

High Court record number: 2014 no 173 CA

[2015] IEHC 800

Between

Dún Laoghaire Rathdown County Council

Plaintiff/Respondent

- and -

West Wood Club Limited

Defendant/Appellant

Judgment of Mr Justice Peter Charleton of Wednesday 29 May 2019

1. At issue is whether what is effectively a judicial review challenge may be mounted by way of defence in the Circuit Court to a claim

for recovery of rates. The Circuit Court has no jurisdiction in judicial review and is not, in any event, subject to Order 84 of the Rules

of the Superior Courts.

Background

2. Dún Laoghaire Rathdown County Council have claimed rates over three years against West Wood Club Limited, a sports, tennis and

leisure facility within their catchment area. These remain unpaid. For both 2011 and 2012, the amount levied was €176,800 and for

2013, the amount was €173,274. The reason the amounts vary is because while rates were introduced by the Poor Relief (Ireland)

Act 1838, and while premises which are rateable, now generally only business enterprises, have been valued on several occasions

since then, the extent of the levy is essentially a political decision taken by elected representatives following an analysis of the needs

of the area and the extent of the budget that is required. As successor to what the original legislation calls “the guardians of the

union” under section 61, the county council is required “to make and levy such rates as may be necessary on every occupier of

rateable hereditaments in or arising within such union.” Following on the striking of the rate, the public is notified by advertisement.

As regards each rateable premises, an amount based on valuation and on the rate struck is demanded. The rates themselves, under

section 78, are recoverable by civil bill in the Circuit Court which, in this respect, has unlimited monetary jurisdiction pursuant to

section 22(3) of the Courts (Supplemental Provisions) Act 1961, fourth schedule at number 3.

3. It is the collection of the 2011 rate which is in issue here. In stating that, it becomes obvious that if there is a point of principle

which renders that rate invalid, nothing in the alleged conduct of the county council has been any different for subsequent years.

The claim and the defence

4. The civil bill for the unpaid rates levied in 2011 is dated 14 October 2011. It simply claims the relevant sum and a modest €280 in

costs which, as the document says, if paid, will result in the proceedings being stayed. A defence was delivered by West Wood on 20

April 2012, but subsequently amended on 7 October 2013. It denies, at paragraph 4, that the court “has jurisdiction to hear or

determine this case.” That is the very opposite of what is claimed by West Wood on this appeal. It claims that the county council

operates sporting facilities which are not subject to rates and that, in consequence, by reason of a dominant position in the

marketplace for sporting facilities, a breach of the Competition Act 2002 has occurred through unequal treatment. By providing

sporting facilities and not levying rates on public facilities, the defence claims that State aid enables lower prices at such facilities,

thus distorting competition contrary to Article 107 of the Treaty on the Functioning of the European Union. Apart from that, additional

claims are made. It is argued that by collecting the rates, the county council is acting in a biased fashion and the striking of the rate

and demand for payment “is tainted by bias … contrary to the principles of natural justice”. Hence, West Wood pursuing the logic of

this, a counterclaim is raised for declaratory relief to the effect that the county council, in attempting to collect rates, is breaching

anti-State aid rules and that West Wood should be awarded damages “for loss occasioned as a result” of the “decision to institute

these proceedings”. While an appeal as to the rates actually levied was lodged before the Valuation Tribunal, this has not proceeded.

Eventually, when the rate collection case came on for hearing in the Circuit Court, of the judicial review type of points raised in their

defence, West Wood proposed only to proceed with the State aid point to defend their liability to pay rates.

5. Essentially, in that regard, what probably is being said in that defence is the following: aid granted by a Member State of the

European Union “which distorts or threatens to distort competition by favouring certain undertakings” is, under Article 107 of the

Treaty, “incompatible with the internal market”, but only “in so far as it affects trade between Member States”. By operating public

facilities for tennis, swimming and similar sports catered for by West Wood, and by not charging these public facilities rates, the

defence claims that this undercuts the resort by consumers to consequently more expensive commercial facilities which must charge

more, like West Wood, thus distorting trade between undertakings in Ireland and in other European Union countries. It is difficult to

see an effect on the international market. Reasoning out what might be the consequent finding as regards the claim for the recovery

of rates as a simple contract debt: if West Wood succeeded, then within the huge budget of the county council, rates would also

have to be somehow charged on public sporting facilities. Otherwise, prices for public sporting facilities would have to be at a higher

level as if to reflect the need to pay rates. Private facilities may have lost customers in consequence of a distortion in competition -

but this may apply only to those in other Member States - and they may be compensated for loss of profits; otherwise, the rate

struck was wrong, since notionally rates should also be charged on public facilities and there would be a diminution in some very small

amount on the actual rate struck. To put it in other words, the rate, on this analysis, was wrongly raised because it was wrongly

calculated to enable aid to a local State enterprise.

Public law

6. There can be no doubt that the striking of the rate by the county council was an exercise in public law. Nor can it be uncertain

that a decision by a local authority to provide sporting facilities comes within their public function. While there have been a

multiplicity of judicial decisions over the last two decades as to when a particular administrative or quasi-judicial action comes within

the sphere of public law, those have been essentially in the context of whether some minimal form of fairness of procedure ought to

involve those substantially affected by what has been done; see in particular Shatter v Guerin [2019] IESC 9 and the cases cited in

the judgments of O’Donnell and Charleton JJ. Striking a rate occurs pursuant to statute and through a local form of political

democracy. It affects all of those who are ratepayers and the money raised is for the benefit of the area. While fairness of procedure

does not apply, other forms of democratic participation supplant these and, nonetheless, the action comes within the realm of public

law. In Eogan v University College Dublin [1996] 1 IR 390 at page 398, Shanley J set out a series of tests as to when an

administrative or quasi-judicial decision attracted public law remedies. Of those, three out of the four propounded are directly relevant

here:

(a) whether the decision challenged has been made pursuant to a statute;

(b) whether the decision maker by his decision is performing a duty relating to a matter of particular and immediate public

concern and therefore falling within the public domain;

(c) where the decision affects a contract of employment, whether that employment has any statutory protection so as to

afford the employee any “public rights” upon which he may rely;

(d) whether the decision is being made by the decision maker whose powers, though not directly based on statute,

depend on approval by the legislature or the Government for the continued exercise.

7. While not put either so concisely or categorically, similar principles can be derived from a reading of de Smith’s Judicial Review (8th

edition, London, 2018) from paragraph 3-002. Not every action of the State or of a local authority comes within the public sphere. In

that regard, were the county council to employ people in collecting rates, their conditions of employment would derive from the

ordinary relationship of employer and employee. Public bodies can act in the public sphere. They buy properties, employ people and

may run small businesses through, for example, renting concessions for catering in public parks or offering the use of playing fields,

perhaps owned by them or perhaps rented from an enterprise like West Wood for a small fee. But, here, the power to raise money

through rates comes from the 1838 Act, for the purpose of maintaining local services, and through a local legislature. It is a neat fit

with the side of the line which sometimes is fuzzy in dividing public from private law.

Characteristics of public law

8. There are advantages and disadvantages to the invocation of public law remedies. In considering these, what should not be lost

sight of is that the Circuit Court is not endowed with the supervisory jurisdiction of the High Court under Article 34.3 of the

Constitution. This Article states that the High Court is “invested with full original jurisdiction in and power to determine all matters and

questions whether of law or fact, civil or criminal”, with the jurisdiction of the High Court extending “to the question of the validity of

any law” having regard to the provisions of the Constitution. The scope of this Article was considered in People (Attorney General) v

Conmey [1975] IR 341. Within this supervisory function, the High Court is unable to perform such functions as granting planning

permission, levying rates or engaging in taxation assessments; Deighan v Hearne [1990] 1 IR 499, O’Keeffe v An Bórd Pleanála [1993]

1 IR 39 and Doherty v South Dublin County Council (No 2) [2007] 2 IR 696.

9. Advantage to litigants in the invocation of public law comes from the power of the High Court to strike down decisions where the

basic procedural fairness required for some decisions is not afforded to those affected. This is that of disclosing that an issue arises

impacting on that individual and then considering any representation made. This is the minimum standard referred to by Clarke J in

Atlantean v Minister for Communications and Natural Resources [2007] IEHC 233, which derives in turn from Barrington J in Mooney v

An Post [1998] 4 IR 288 at 298. In making decisions, public bodies must act within the scope of the powers that statute give to

them; in other words, within jurisdiction. Since public bodies are creatures of statute, naturally they may only exercise such powers

as are precisely bestowed on them. Hence, errors as to the limits of jurisdiction can undermine a decision. Such decisions as are in

fact made, regardless of whether or not the decision-making process is one which attracts any fairness in procedures to those

substantially affected, must be reasonable. That principle is derived from the theory that no body making decisions which fly in the

face of fundamental reason and common sense are acting within their limits; see Cassidy v Minister for Industry and Commerce

[1978] IR 297 and State (Keegan & Lysaght) v Stardust Compensation Tribunal [1986] IR 642. In modern times, what is flagrantly

unreasonable can also take into account the proportionality of a decision one way or another; see the decision of Murray CJ in

Meadows v Minister for Justice [2010] 2 IR 701 at 173-174.

10. On the other side of the coin, public law has disadvantages. Judicial review must be taken within strict time limits; usually three

months, unless extended by the court under Order 84 of the Rules of the Superior Courts or unless another, usually stricter, time limit

is laid down by statute. While declaratory relief and damages may be available, the normal effect of striking down an order for want of

procedural fairness is for the decision to be remitted for fresh consideration. Furthermore, to commence a judicial review, an order of

the court is required. Unless modified by statute, as in planning and refugee application cases, the threshold for being given leave to

commence a judicial review is quite low; G v DPP [1994] 1 IR 374. Nonetheless, these requirements must be met. These burdensome

procedural rules exist simply because what is challenged in judicial review is a decision in the public sphere. In addition, judicial review

is a discretionary remedy: despite having proved an excess of jurisdiction in making a decision, or unreasonableness, or unfairness in

procedures, the High Court may refuse relief because of, for instance, the conduct of the applicant or because no real wrong has

been done.

11. Any decision as to the validity of public law has wide import, affecting at least the applicant so that he or she has standing to

challenge the decision, but often much more widely, or may have serious implications for the public standing of those who make such

decisions. Because of this, the principles of certainty of law and of good administration require that challenges to authority in the

public sphere are channelled into an appropriate forum, be made subject to appropriate rules, and resolved with dispatch; see de

Smith from paragraph 3-115.

12. That is why public law is very different to claims of a private kind; like a claim in contract or tort or company law. In none of

these are issues decided on reasonableness or jurisdiction or proportionality. Neither is a court which does not approve of how a

plaintiff has acted, or considers that no real harm has been done, entitled to refuse relief; absent for instance a valid plea of estoppel

or on the principle that the law does not interfere in trifles. But, judicial review remedies are discretionary in nature. For all the

foregoing reasons, by reason of law and by reason of the Constitution, the High Court alone is vested with that jurisdiction of

supervising lower courts and the tribunal and administration within the public sphere.

Validity of chosen forum

13. Rigidity of choice of forum as between a judicial review application in the High Court, commenced by leave of a judge under Order

84, and a prohibition against the invocation of administrative remedies through plenary proceedings has not recently been part of Irish

law. The high watermark of an attitude which would split the courts into administrative and private law jurisdictions, as in the French

administrative system set up after the 1789 revolution to ensure that the courts would not interfere in public decisions, was reached

in the neighbouring kingdom in O’Reilly v Mackman [1983] 2 AC 237. That much pondered decision was thought by some to have a

similar effect to the procedural rigidity that sets French administrative and other European administrative courts apart from those

which deal with law in the private sphere; see de Smith at paragraph 3-117 and Hogan and Morgan – Administrative Law in Ireland

(4th edition, Dublin, 2010) at paragraph 17-02. Since O’Reilly, an English case involving a review of a decision to discipline prisoners

after a prison riot, a series of exceptions have been grafted to the central premise that any review of an administrative decision

should take place solely within the confines of the controls imposed by the High Court on judicial review. Since that time, according to

de Smith at paragraph 3-118, with footnotes omitted, the rule has been modified, but, as the editors state, haphazardly:

The exceptions included: where public and private law decisions were not separate and distinct; where the public law

aspect of the claim was collateral to an issue which was the proper subject matter of private law proceedings; where

private law aspects of the claim dominated the proceedings; where a person sought to challenge the validity of a public

authority’s decision as a defence in a civil claim; and where the parties did not contest the appropriateness of the chosen

procedure. The courts stressed the need for flexibility and pragmatism. Nevertheless, parties frequently engaged in

ferocious litigation as to whether the right procedure has been adopted purely for tactical purposes. Their indulging in this

activity was made worthwhile by the fact that, depending on the nature of the issue involved, there could be substantial

advantages in an applicant choosing one form of procedure rather than another. Unfortunately, although the House of

Lords had a number of opportunities to improve the situation, a case by case approach prevented the development of a

formula which might have injected some common sense into the position.

14. The evolution of this area of law is further considered in Wade and Forsyth’s Administrative Law (11th edition, Oxford, 2014). The

authors note at page 583 that the new Civil Procedure Rules introduced in England and Wales have helped to abate the “rigours of

exclusivity”, with evidence of a “more flexible judicial attitude” in recent cases where procedural exclusivity has been at issue, citing

the decision of Brooke LJ in R (Wilkinson) v Broadmoor Special Hospital [2002] 1 WLR 419 at paragraph 62, where he found “it cannot

and should not matter whether proceedings in respect of forcible treatment of detained patients are brought by way of an ordinary

action in tort … or judicial review.” However, the exclusivity principle retains its relevance. In Trim v North Dorset District Council

[2011] 1 WLR 1901, Carnwath LJ held at paragraph 26 that the exclusivity principle was “directly applicable” in that case, as the

service of a breach of condition notice was deemed to be a “purely public act”, with “a strong public interest in its validity, if in issue,

being established promptly”, due to “its significance to the planning of the area, and because it turns what was merely unlawful into

criminal conduct”. Thus, the central issue in that case did not require “a more flexible approach.” In the more recent case of Richards

v Worcestershire County Council [2017] EWCA Civ 1998, Jackson LJ summarised the present state of the law in that jurisdiction at

paragraph 65 as follows:

(i) The exclusivity principle applies where the claimant is challenging a public law decision or action and (a) his claim

affects the public generally or (b) justice requires for some other reason that the claimant should proceed by way of

judicial review.

(ii) The exclusivity principle should be kept in its proper box. It should not become a general barrier to citizens bringing

private law claims, in which the breach of a public law duty is one ingredient.

15. So much for the neighbouring kingdom. Ireland did not suffer from the rigid rule laid down in O’Reilly. Instead, resort could be had

to judicial review remedies in plenary proceedings but with the necessary modification that the time limits within the Rules of the

Superior Courts were applied analogously; see O’Donnell v Dún Laoghaire Corporation [1991] ILRM 301. Since that decision, it has not

been doubted that since the purpose of judicial review is to resolve conflicts between the administration and the rights and

expectations of citizens and businesses, that remedy must be swiftly invoked. What is argued for here on behalf of West Wood is in

effect the grafting on to a rule that never existed in this jurisdiction the exceptions to O’Reilly recognised in England, the jurisdiction

which invented that rule. Even within those exceptions, a line has been there drawn. Limits are set on an abuse of process basis;

Clarke v University of Lincolnshire and Humberside [2000] 1 WLR 1988. According to de Smith at paragraph 3-119, footnotes omitted,

the result is:

Where, however, a case raises only public law issues, a claim for judicial review remains the preferable procedure as it is

more likely to serve “the public interest that the legality of formal acts of a public authority should be established without

delay”. Where the only remedy sought is damages or restitution, a civil claim will rarely be an abuse of process even if

public law questions are a dominant issue; though it will be an abuse of process to use a damages claim merely to reopen

public law questions.

16. The Court of Appeal, through Hogan J, decided the present case on the basis of the absence of jurisdiction in the Circuit Court to

decide the legal status of the rate levied by the county council. At paragraph 11, he said:

One thing is immediately clear: the Circuit Court does not have a jurisdiction to pronounce, whether directly or indirectly,

on the validity of the rate struck by the Council as such, as that Court does not enjoy a judicial review jurisdiction. The

Circuit Court can, at most and to a limited degree, pronounce indirectly on this issue if it is raised by way of defence, but

even then such a ruling would be personal to the defendant and it would not have general erga omnes effect in the same

way as if the rate had been quashed by certiorari or a declaration to that effect were to be granted by the High Court.

17. In so deciding, the Court of Appeal was following a line of authority that precluded from public law decisions any court other than

the High Court. Standing as an apparent exception to that general principle was the decision of the Supreme Court in Athlone Urban

District Council v Gavin [1985] IR 434. There, the county manager had made an order levying a charge of £60 on every household in

Athlone for “water, sewerage and refuse services in the year 1983”. That sum was recoverable as a simple contract debt, as are

rates in the case under appeal here, in the District Court where the sum was reduced on the separate basis that a portion of the

charge had been levied retrospectively. On appeal from the District Court, the Circuit Court referred different issues to the Supreme

Court. These related to the agglomeration of services and the, as it now appears, prescient identification of charges for water supply

and the legal basis for same. All in all, this could be argued to look like an approval that courts other than the High Court may decide

a public law matter. The report of the case, however, cites none of the relevant cases on the exclusive jurisdiction of the High Court

in relation to judicial review and there is no sign that the point was raised. In his judgment, Finlay CJ found that there was no

statutory basis for levying any charge for the supply of water. Further, the statutory basis for levying charges was in respect of a

single service and, as he said at page 442, “a power to make a charge for a single service … cannot be interpreted as enabling a local

authority to fix a single charge for a number of services.” On the face of the actual order by the county manager, and on the face of

the demand, however, such a demand had been made; see page 439-440 of the report. This defect on the face of the order is

important.

18. In Dublin City Council v Williams [2010] 1 IR 801, an argument was raised in the District Court against the recovery, again on the

basis of a simple contract debt, of local authority fees for waste collection that merely a wheelie bin service was provided and that

no charge was valid unless the contents were weighed; an obligation claimed to be imposed by Council Directive 91/156/EEC to

ensure that “the polluter pays”; a recognised objective of the governing legislation, namely the Waste Management Act 1996. On a

case stated to the Supreme Court from the appeal to the Circuit Court, the first question was whether the judge had “jurisdiction to

consider the defendant’s challenge to the legality of the resolution made by the” city council. Reviewing earlier decisions in relation to

waste, including the Athlone Urban District Council case and the decision of Clarke J in Rosborough v Cork City Council [2008] 4 IR

572, the Supreme Court was clear that issues as to the validity of the charge were matters of public law and within the exclusive

judicial review jurisdiction of the High Court. Giving the judgment of the Supreme Court, Geoghegan J agreed with the analysis of

Clarke J in the Rosborough case as to the review of local authority functions and, at page 812, stated:

9. Clarke J. goes on to review the case law supporting this point of view including indeed a decision of my own in the High

Court in Fingal County Council v. Lynch [1997] 2 I.R. 569. I entirely agree with the analysis of Clarke J. The consequence

of that is that I am of the view that the first question in the case stated must be answered in the negative. That being

so the other questions cannot properly arise for determination by this court.

10. Since there is no clear legally defined process by which the “polluter pays” principle is to be implemented there is no

defence to the action to recover the charges for the service once those charges were in fact the charges fixed by the

county manager under the general local government code. I do not go so far as to suggest that the county manager’s

order could never be relevant by way of defence to claims for charges of this kind. If, for instance, the claim was for a

sum that did not comply with the order, that would be an obvious example. But even if the county manager’s order was

patently ultra vires a relevant statute, in some instances that might also be a proper defence though it is not necessary

to decide the issue here. That might also be the position if there was a clear error on the face of the manager’s order.

Finally, I would accept on the authority of cases that have been put before this court, and indeed on general principles,

that the position could be quite different in a criminal prosecution. In that instance there is no alternative procedure

available to the accused and justice may dictate that he can raise a defence that would not be open to him if he was

faced merely with a civil claim.

19. The exceptions noted in the judgment are pertinent here. As the Supreme Court decided, those are of a charge which does not

comply with the public law order, a patent illegality (of which the Athlone Urban District Council case would be an example), and an

error on the face of the order. All three exceptions are reflected in the existing case law in this jurisdiction. No decided case in this

jurisdiction goes beyond these. In Shell E&P Ireland v McGrath [2013] 1 IR 247, the Supreme Court held that a counterclaim filed

outside of the time limits under Order 84, stating that planning and other consents had been invalidly granted, in response to a claim

by the plaintiffs that the defendants had obstructed the construction of the Corrib gas pipeline, was invalid. Certainly, the High Court

had jurisdiction to determine such a judicial review in the context of plenary proceedings but the analogous provisions as to time limits

had to be followed. At page 261, Clarke J commented:

It should, of course, be noted that Dublin City Council v. Williams … concerned a case in the District Court, which court

does not have a judicial review or general declaratory jurisdiction. It would not have been open to the District Court to

entertain proceedings which sought to challenge, whether brought by judicial review or by seeking declarations, the public

law measures which were involved in that case. Different considerations apply to proceedings in the High Court which, of

course, has a full judicial review jurisdiction and a wide declaratory jurisdiction as well. Where proceedings are brought in

the High Court the only issue is one of the form of the proceedings rather than the jurisdiction of the court to entertain

proceedings of that type in the first place.

20. In the Court of Appeal, on this appeal, a defence was allowed to be run in the District or Circuit courts to a claim for the recovery

of charges based on a public law decision “which involves an error on the face of the proceedings or there is no doubt as to the

illegality of the decision”. This accords with the judgment of Geoghegan J in the Dublin City Council case, where at page 813 he ruled

that “it would be open to a defendant to raise” a “clear error on the face of the proceedings”, which he puts “in another way” as a

situation where, as regards a public law order, that “there was no uncertainty as to its illegality.”

Potential deviation

21. The decision of the Supreme Court in Dublin City Council remains the law in this jurisdiction and has not been overturned. No

compelling argument was put forward at the hearing of the present case for the Court to depart from that earlier decision. The

general principle, in non-constitutional matters, is that a prior decision of the Supreme Court should be followed unless it is

demonstrably wrong and it is in the interests of justice to depart from the previously held position; Attorney General v Ryan’s Car Hire

Ltd [1965] IR 642 and Mogul v Tipperary County Council [1976] IR 260. Where constitutional issues are involved, a different standard

applies, given that the “risks inherent in erroneous interpretation of the Constitution are necessarily greater”, Jordan v Minister for

Children and Youth Affairs & Ors [2015] 4 IR 232 at 307; see also Society for the Protection of Unborn Children (Ireland) Limited v

Grogan & Ors (No 5) [1998] 4 IR 343.

22. As against the apparent clarity of the legal position as enunciated by the Court of Appeal in this case, and by the Supreme Court

in the Dublin City Council case, there are two potential routes to deviate; these are the position in criminal trials and the diverging

lines of authority derived from the O’Reilly v Mackman decision in England and Wales.

23. As to the first point, Geoghegan J accepted that the position in relation to a person facing a criminal charge would be entirely

different; see page 812. The situation there is that an illegality leading to the discovery of evidence, or the breach of constitutional

rights such as the inviolability of a person’s dwelling, can lead on a discretionary basis to the exclusion of that evidence at trial; see

The People (Director of Public Prosecutions) v JC [2017] 1 IR 417. Under other constitutional systems, issues as to the admissibility of

evidence are tried prior to the commencement of a criminal trial. Where, as in the Fourth Amendment of the Constitution of the United

States of America, “the people” have the right “to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures” and where no warrant may issue “but upon probable cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or things to be seized”, issues as to admissibility within a criminal trial are heard

and decided prior to any trial taking place; by which is meant, prior to empanelling a jury to try the case. This, however, is the

responsibility of the trial judge, or another assigned judge, so that by the time of the jury trial there may be a relatively uninterrupted

flow of evidence. A similar rule of procedure applies to the admissibility of confession statements. While that rule may be attractive, it

is not the rule in this jurisdiction.

24. In Byrne v Grey [1988] IR 31, an accused in a criminal trial, facing controlled drugs charges, sought an advance of his trial in the

Circuit Criminal Court to judicially review in the High Court the search warrant issued by a peace commissioner whereby those drugs

were discovered in his home. As the law stood at the time, an invalid warrant would have resulted in the exclusion of any evidence

found at the accused’s home. Hamilton J in the High Court was convinced by the argument that since, under the relevant legislation,

the judge or peace commissioner issuing the warrant had, himself or herself individually, to be satisfied that there were “reasonable

grounds for suspecting” that controlled drugs were to be found on the premises to be searched, a mere averment in an affidavit baldly

stating that as a fact was insufficient. Hence, the High Court on judicial review looked behind the warrant and found the basis for it

to be insufficient. As a matter of discretion, however, an order quashing the warrant was refused. A search had been affected on the

home of the accused by the gardaí more than a year prior to the hearing in the High Court. Hamilton J held, following The State

(Glover) v McCarthy [1981] ILRM 47 at 51, that the object of a judicial review where there might be a choice of jurisdictions was to

“achiev[e] a just resolution of the matters at issue with minimal inconvenience consistent with the regularity of judicial procedures”;

per Gannon J. In the result, Hamilton J held at page 41:

Consequently, the warrant sought to be impugned is spent and the only interest which the applicant has in seeking to

have the said warrant quashed by way of certiorari is to seek to have rendered inadmissible in the course of his trial the

evidence obtained as a result of the said search. This is his interest in the only matter in issue.

In my view, the objective of achieving a just resolution of this matter is in the course of his trial. It is a matter for the

trial judge to decide whether the evidence sought to be admitted is admissible or not. Consequently, I will refuse the

application made on behalf of the applicant.

25. The decision in Byrne has not subsequently been challenged, and has been cited with approval on numerous occasions. The

decision was approved in Blanchfield v Harnett [2002] 3 IR 207, with Fennelly J noting at page 223 that there was “no reason in

principle … to deprive courts of trial of such powers as are inherent in the process of deciding on the legality of steps taken to enable

the prosecuting authorities of the State to gather evidence for the case.”; see also McGinley v Reilly [2009] 3 IR 125. In McNulty v

DPP [2009] 3 IR 572, Hardiman J held at page 576 that in light of the decision in Byrne, the correctness of the following could not be

doubted:

in general judicial review relief is not appropriate for the purposes of seeking rulings from the High Court as to the

admissibility of evidence in advance of criminal trials where the trial judge is capable of making all the appropriate

determinations of law and fact.

26. The decision in Byrne may be looked at from the point of view that although the High Court accepted that it had judicial review

jurisdiction over the issue of warrants, in cases where the impact of the warrant related to the admissibility of evidence within a

criminal trial, then it was a matter for the trial judge to make decisions as to either errors on the face of the warrant or as to the

sufficiency of any sworn information grounding its issue by a judicial authority. Possibly, this can be seen as part of the unitary trial

principle that is so important in Irish law; for instance see Adigun v The Equality Tribunal [2015] IESC 91. Hence, the argument that

could be advanced in relation to the case under appeal is that since West Wood seek to impugn an order and are the involuntary

recipients of a demand for rates based on a public law decision, just resolution of the issue of the validity of striking the rate in the

first place can be resolved before the District Court.

27. As against that, on the authority of the Shell E&P Ireland case, the time limits for such an approach as analogously applicable

from Order 84 had long since expired. Furthermore, even on the basis of the authorities from the neighbouring kingdom, it is difficult to

see how, to turn to the second relevant point based on the authorities from England and Wales, citing the words of de Smith derived

from the relevant case law, “the proceedings are simply inappropriate to decide the public law matter in question”, it being most

certainly the case that “evidence is needed to substantiate the claim”, including a body of expert economic analysis evidence; de

Smith at paragraph 3-129. In that jurisdiction, a claim such as this would not be heard except by judicial review. Thus, even within

the reaches of the furthest development in the England and Wales judicial system, this is not a case which should be tried in the

District Court.

28. Developments in the neighbouring jurisdiction constitute the second potential line for divergence. In Wandsworth LBC v Winder

[1985] AC 461, the tenant of a local authority was faced with a sudden increase in rent consequent upon their decision. As the

foregoing analysis indicates, decisions as to whether to enable a public law challenge outside the realm of the High Court are made in

that jurisdiction on the basis of whether or not raising a point constitutes an abuse of process; see paragraph 15 above and de Smith

at paragraph 3.119. The judgment of Lord Fraser of Tullybelton at page 509-510 can be seen both in that light and as part of

response to the earlier decision in O’Reilly:

It would in my opinion be a very strange use of language to describe the respondent's behaviour in relation to this

litigation as an abuse or misuse by him of the process of the court. He did not select the procedure to be adopted. He is

merely seeking to defend proceedings brought against him by the appellants. In so doing he is seeking only to exercise the

ordinary right of any individual to defend an action against him on the ground that he is not liable for the whole sum

claimed by the plaintiff. Moreover he puts forward his defence as a matter of right, whereas in an application for judicial

review, success would require an exercise of the court’s discretion in his favour. Apart from the provisions of Order 53 and

section 31 of the Supreme Court Act 1981, he would certainly be entitled to defend the action on the ground that the

plaintiff’s claim arises from a resolution which (on his view) is invalid: see for example Cannock Chase District Council v

Kelly [1978] 1 WLR 1, which was decided in July 1977, a few months before Order 53 came into force (as it did in

December 1977). I find it impossible to accept that the right to challenge the decision of a local authority in course of

defending an action for non-payment can have been swept away by Order 53, which was directed to introducing a

procedural reform. As my noble and learned friend Lord Scarman said in Reg. v. Inland Revenue Commissioners, Ex parte

Federation of Self Employed and Small Businesses Ltd. [1982] A.C. 617, 647G “The new R.S.C., Ord. 53 is a procedural

reform of great importance in the field of public law, but it does not - indeed, cannot - either extend or diminish the

substantive law. Its function is limited to ensuring ‘ubi jus, ibi remedium.’” Lord Wilberforce spoke to the same effect at p.

631A. Nor, in my opinion, did section 31 of the Supreme Court Act 1981 which refers only to “an application” for judicial

review have the effect of limiting the rights of a defendant sub silentio. I would adopt the words of Viscount Simonds in

Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government [I960] A.C. 260, 286 as follows:-

“It is a principle not by any means to be whittled down that the subject's recourse to Her Majesty’s courts for the

determination of his rights is not to be excluded except by clear words.”

The argument of the appellants in the present case would be directly in conflict with that observation.

If the public interest requires that persons should not be entitled to defend actions brought against them by public

authorities, where the defence rests on a challenge to a decision by the public authority, then it is for Parliament to

change the law.

29. The lines of authority as between this jurisdiction and our closest neighbour are consequently divergent. This, however,

constitutes an insufficient basis for diverging from existing Irish law. In Avon CC v Buscott [1988] QB 656 at 663, the Court of Appeal

in England and Wales confirmed that the principle in Winder is confined to those “seeking to raise a true defence.” However, a less

stringent application is evident in West Glanmorgan CC v Rafferty [1987] 1 WLR 457. In Bunney v Burns Anderson plc [2007] 4 All ER

246, Lewison J held at paragraph 47 that:

the original procedural reasons which led to the formulation of the principle in O’Reilly v Mackman … have lost much of

their force since the introduction of the [Civil Procedure Rules] [and] they never applied to defendants who wished to

challenge public law decisions upon which a private cause of action against them was asserted in proceedings which they

wished to defend.

30. There is also a line of case law in the United Kingdom to the effect that a defence under Article 8 of the European Convention on

Human Rights can be raised to challenge, on public law grounds, a decision to seek possession of land. In light of the decision in

Connors v United Kingdom (2004) 16 BHRC 639, Lord Hope held in Kay v Lambeth LBC [2006] 2 AC 465 at page 517 that:

if the requirements of the law have been established and the right to recover possession is unqualified, the only situations

in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order

are these:

(a) if a seriously arguable point is raised that the law which enables the court to make the possession order is

incompatible with article 8, the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should

deal with the argument in one or other of two ways:

(i) by giving effect to the law, so far as it is possible for it do so under section 3 [of the 1998 Act], in a way that is

compatible with article 8, or (ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in

the High Court;

(b) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise

of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable, he

should be permitted to do this provided again that the point is seriously arguable: Wandsworth London Borough Council v

Winder [1985] AC 461. The common law as explained in that case is, of course, compatible with article 8. It provides an

additional safeguard.

31. This approach was approved in Doherty v Birmingham City Council [2009] 1 AC 367 and Manchester City Council v Pinnock [2011]

2 AC 104. In the recent case of Davies v Hertfordshire County Council [2018] 1 WLR 4609, it was held that a defendant, a local

authority tenant, could raise a defence under Article 8 of the European Convention on Human Rights to a claim to repossess the

house of which he was the tenant. Enabling that point to be raised in proceedings would seem to be compatible with section 3 of the

European Convention on Human Rights Act 2003, which requires “every organ of the State [to] perform its functions in a manner

compatible with the State's obligations under the Convention provisions.” In Kelly’s Irish Constitution (5th edition, Dublin, 2018) at

paragraph 5.3.142, the authors note that “it would appear that a case might be brought under s 3 even in the absence of a relevant

statutory provision or rule of law.” Further, damages can only be granted under section 3 where no other remedy in damages, such as

on the basis of a breach of constitutional rights, is available: see McCann v The Judge of Monaghan District Court and ors [2009] 4 IR

200 and DF v Garda Commissioner (No 3) [2014] IEHC 213. In O’Donnell & Others v South Dublin County Council [2007] IEHC 204, a

case regarding living conditions in accommodation provided for by the county council, Laffoy J made an award of damages to an Irish

Traveller Community family for a breach of their rights under Article 8 of the Convention, distinguishing the case on the facts from

Doherty v South Dublin County Council [2007] 2 IR 696. In Pullen v Dublin City Council [2009] IEHC 452, Irvine J awarded the two local

authority tenants €20,000 each for the breach of their rights under section 3 of the 2003 Act, where the court had previously

determined that “the only remedy available to the plaintiffs” was that which was provided for under s 3(2) of the 2003 Act. These

decisions, in the High Court, are illustrative only and no comment is made as to their jurisdictional or legal correctness.

32. Furthermore, even on the lines of authority coming from the neighbouring kingdom, and on the authority of Byrne, it makes no

sense to effectively strip the High Court of its supervisory jurisdiction over lower courts in judicial review and to require those other

courts to consider areas of law which are outside both their jurisdiction and area of expertise.

Discrimination

33. Finally, in their submissions, West Wood claimed a significant procedural disadvantage in the requirement that public law matters,

apart from the exceptions recognised by Geoghegan J in the Dublin City Council case, should only be raised by way of judicial review

or plenary proceedings with analogous time limits before the High Court. This is argued to be in breach of the duty of sincere

cooperation laid down in Article 4(3) of the Treaty of the European Union which includes a mutual legal obligation for the EU and the

Member States "to assist each other in carrying out the tasks which flow from the Treaties."

34. The problem with this submission, however, is that there are no rules preventing the implementation or effectiveness of European

law which do not also apply with equal strictness to domestic measures. There is nothing special about raising either the claim as to

State aid, which is a European law point raised in West Wood’s Circuit Court defence, or the claim as to bias, which is a domestic

legal point canvassed in the same document. Both of these are in the defence to these proceedings and both of these are subject to

the requirement that an issue seeking to overturn a public law measure should take place within the appropriate format. Thus, there is

no discrimination as between the domestic measures and any measures derived from Treaty obligations within the European Union.

The Court of Justice of the European Union clarified the position in France v Commission of the European Communities Case C-

301/87 (1990) ECR I-307. Procedural rules for cases raising a European law point do not have to be more advantageous than those

domestic rules for ordinary public law cases. What matters is that there should be no discrimination.

Result

35. In the result, the judgment and order of the Court of Appeal should be affirmed.