Judicial review is dismissed as it cannot be used to quash a High Court decision on appeal from the Circuit Court.

APPROVED [2025] IEHC 433

THE HIGH COURT

JUDICIAL REVIEW

2025 527 JR

BETWEEN

DECLAN EGAN

APPLICANT

AND

PEPPER FINANCE CORPORATION (IRELAND) DAC

RESPONDENT

JUDGMENT of Mr. Justice Garrett Simons delivered on 31 July 2025

INTRODUCTION

1. This judgment is delivered in respect of an ex parte application for leave to apply for judicial review. The proceedings are very unusual in that they seek to set aside an earlier decision of the High Court (which had been made in the context of an appeal from the Circuit Court). This presents the following jurisdictional issue: does judicial review ever lie against a decision of the High Court.

NO REDACTION REQUIRED

PROCEDURAL HISTORY

2. These judicial review proceedings have their genesis in an earlier action for possession instituted before the Circuit Court. The action for possession has been pursued by Pepper Finance Corporation (Ireland) DAC (“Pepper Finance”) as plaintiff. Pepper Finance asserts that it has succeeded to the mortgagee’s interest (and related debt) under a mortgage deed entered into between Mr. Egan and his late wife with Bank of Scotland (Ireland) Ltd. The mortgaged property is described as “Auburn”, Old Dublin Road, Stillorgan, County of Dublin.

3. The Circuit Court made an order for possession on 4 December 2023. Thereafter, Mr. Egan exercised his statutory right of appeal to the High Court. The appeal was dismissed for the reasons stated in a written judgment delivered on 22 January 2025: Egan v. Pepper Finance Corporation (Ireland) DAC [2025] IEHC 31 (Bolger J.).

4. Mr. Egan instituted these judicial review proceedings on 17 April 2025. The principal reliefs sought in these proceedings are an order of certiorari seeking to quash the High Court’s decision of 22 January 2025 and an order remitting the action for possession to the Circuit Court for a full re-hearing.

5. The leave application was initially listed for hearing on 23 June 2025. The leave application was part-heard on that date but was then adjourned until 14 July 2025 to allow the Applicant an opportunity to address the jurisdictional issue of whether judicial review lies against a decision of the High Court. The Applicant made further oral submissions on that date and judgment was reserved to today’s date.

DISCUSSION

6. It is well established that judicial review does not lie against a superior court of record. The position is summarised as follows in Hogan, Morgan and Daly, Administrative Law in Ireland (5th Ed., 2019) (at paragraph 18-14):

“One important limitation to the scope of judicial review

ought to be immediately stated: it is not available to review

a decision of a superior court of record. Thus, decisions of

the High Court, Court of Appeal and the Supreme Court

cannot be reviewed by means of judicial review. The High

Court’s power of judicial review is an inherent one which is

designed to ensure that inferior courts, tribunals, university

visitors (subject to justiciability arguments), Oireachtas

committees, and other bodies exercising public functions do

not exceed their jurisdiction. However, judicial review will

lie to quash decisions of officers such as the Master of the

High Court or a Taxing Master, as it has been held that the

High Court is not thereby making an order against itself or

any other ‘superior court’, but rather against an officer

‘attached’ to the High Court.”

* Footnotes omitted

7. This limitation on judicial review reflects the historical roots of what is now the modern law of judicial review. See State (Abenglen Properties Ltd) v. Dublin Corporation [1984] IR 381 (at page 392):

“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.”

8. It is apparent, therefore, that judicial review has never extended to a superior court of record. This limitation also reflects the principle of judicial comity, the principle of res judicata, and the hierarchy of courts under the Constitution of Ireland. A judge of the High Court does not have an inherent power to set aside an order of another judge of the same jurisdiction in circumstances where that order has been made following an inter partes hearing. Different considerations pertain in cases where an order has been made ex parte or where the Rules of the Superior Courts make express provision for the setting aside of an earlier order in specific circumstances, e.g. where judgment has been entered in default of appearance pursuant to Order 13. The High Court’s supervisory jurisdiction by way of judicial review cannot be invoked to allow one judge of the High Court to act as a self-styled appellate tribunal in respect of orders of another judge of the same court.

9. The Applicant advances the novel argument that the limitation on judicial review described above does not apply to a decision made by the High Court in the exercise of its statutory appellate jurisdiction in respect of the Circuit Court. It is contended that the High Court is, in effect, exercising the same jurisdiction as the Circuit Court (rather than exercising the High Court’s original jurisdiction). It is next contended that because a decision of the Circuit Court is, in principle, amenable to judicial review, then so too must a decision of the High Court made on appeal from the Circuit Court.

10. It is correct to say that the High Court, when exercising its statutory appellate jurisdiction in respect of the Circuit Court, is confined in the type of orders which it can make: ACC Loan Management Ltd v. Fagan [2021] IESC 20, [2021] 1 IR 781 (at paragraphs 22 and 23). It does not follow, however, that the High Court is assimilated to the position of the Circuit Court nor that it has lost its character as a superior court of record. Rather, the High Court is exercising an appellate jurisdiction, separate and distinct from the Circuit Court’s first instance jurisdiction. The High Court remains a superior court of record. No court has a protean status whereby it can switch between being an inferior court and a superior court. Rather, its character is fixed.

11. Indeed, the Applicant’s argument proves too much. The logical terminus of the argument is that the Supreme Court would also have to be regarded as exercising the Circuit Court’s jurisdiction in any case where the Supreme Court grants leave to appeal against a decision of the High Court in respect of a circuit appeal. On the Applicant’s argument, a decision of the Supreme Court on a circuit appeal would be amenable to judicial review by the High Court. This is simply untenable and would be in direct conflict with the constitutional hierarchy of courts.

12. There is an additional reason why the Applicant’s argument cannot succeed. Section 39 of the Courts of Justice Act 1936 provides, in relevant part, that the

decision of the High Court on an appeal from the Circuit Court under Part IV of the Act shall be “final and conclusive and not appealable”. This is subject to an exception only in the case of a constitutional appeal to the Supreme Court: Pepper Finance Corporation v. Cannon [2020] IESC 2, [2022] 1 IR 128.

13. The contended-for entitlement to seek judicial review of a decision of the High Court made on an appeal from the Circuit Court is inconsistent with section 39 of the Courts of Justice Act 1936. It follows, therefore, that even if such a

decision might in principle have been subject to judicial review—and it is not for the reasons already explained—the jurisdiction is ousted by statute.

CONCLUSION AND FORM OF ORDER

14. The application for leave to apply for judicial review is refused. No costs order is required in circumstances where the leave application has been heard ex parte. The respondent cannot, by definition, have incurred any costs in respect of an application of which it was not on notice.

Appearances

The applicant appeared as a litigant in person