High Court refuses DCC's application to set aside leave, allowing judicial review to proceed to trial.

[2025] IEHC 441

THE HIGH COURT

JUDICIAL REVIEW

[2024/160JR]

BETWEEN:

DECLAN DOYLE AND AMATREK LIMITED

APPLICANTS

AND

DUBLIN CITY COUNCIL

FIRST NAMED RESPONDENT

AND

THE MINISTER FOR HOUSING, LOCAL GOVERNMENT AND HERITAGE

SECOND NAMED RESPONDENT

AND

IRELAND AND THE ATTORNEY GENERAL

THIRD AND FOURTH NAMED RESPONDENTS

JUDGMENT of Mr. Justice Barry O’Donnell delivered on the 1st day of August, 2025

INTRODUCTION

1. The applicants in these proceedings were granted leave to apply for judicial review by the High Court on the 19 February 2024. This application has been brought by the first named respondent, Dublin City Council (DCC) seeking orders setting aside the grant of leave in relation to two of the three decisions that the applicants were granted leave to challenge. The other respondents did not participate in the application.

2. The main basis for the application was an assertion by DCC that the applicants were clearly out of time in respect of the challenges to two of the decisions. DCC argued that, while this meant that the case would still have to proceed in relation to the remaining impugned

decision, it would substantially narrow the nature and extent and associated costs of any ultimate trial.

3. For the reasons set out in this judgment I have concluded that the DCC application should be refused. Because I consider that these proceedings should be permitted to proceed to hearing, in which case there will be a need for opposition papers to be delivered and a likely further exchange of affidavits, I will avoid engaging in any commentary on the merits or difficulties with the underlying proceedings as these are matters best left to the trial judge.

THE RELEVANT PRINCIPLES

4. Before addressing the arguments made in this application, it may be helpful to commence with a recapitulation of the approaches identified in the caselaw to applications of this type. The jurisdiction to set aside a grant of leave to apply for judicial review has been the subject of consideration by the Supreme Court in cases such as Adam & Iordache v. Minister for Justice [2001] 3 IR 53, Gordon v. DPP [2002] 2 IR 369 and C.S. v. Minister for Justice [2005] 1 IR 343, along with a number of cases in the High Court. The case law was considered in some detail in the very helpful judgment of Holland J. in Kelly & Others v. An Bord Pleanála [2022] IEHC 238, and I gratefully adopt the analysis in that case.

5. Holland J. accepted as a correct statement of the law, the following proposition (from which I have removed the footnotes) taken from the 3rd edition of Administrative Law in Ireland, Hogan and Morgan, pp 708 to 709, which in turn had been quoted with approval by McGuinness J. in Adam & Iordache: “The existence of such a jurisdiction was recognised by Carswell J (as he then was) in Re Savage's Application. While recognising that the burden on a respondent who moved the court to have the grant of leave set aside was a ‘heavy one’, nevertheless:- ‘If on mature consideration of the facts, and with the benefit of the arguments presented to me by both sides, I now accept that there is not an arguable case on the facts, then I think the leave should be set aside.’ In effect, therefore, this jurisdiction to set aside is but an example in this particular context of a more general power to strike out on the ground that the proceedings are ‘clearly unsustainable’. If anything, however, this jurisdiction to set aside must be even more sparingly exercised, in that the granting of leave by the High Court presupposes in a way that the mere issuing of a plenary summons does not — that the case is at least an arguable one.”

6. As noted by Holland J., insofar as there may have appeared to have been a difference between the approaches adopted by Hardiman J. and McGuinness J. in their judgments in Adam, the position was clarified by Fennelly J. in Gordon.

7. In Gordon there was an application to set aside leave on the basis that the applicant proceeded by way of judicial review when he ought to have appealed his sentence. Fennelly J. emphasised that the relevant principles had been recently and thoroughly examined in Adam & Iordache. Fennelly J. summarised the position in the following passage: “•leave to apply for judicial review can be obtained by demonstrating that, if the facts alleged are proved, the applicant has an arguable case in law to obtain the relief he seeks; this has been frequently described as a "low threshold" and by Denham J as a "light burden; (see her judgment in G v DPP)" •It is also necessary for the applicant to show that judicial review would be the only effective remedy and specifically that it would be more effective than any alternative remedy; •once leave has been granted, the High Court has inherent jurisdiction to set aside the order granting it; •this jurisdiction should be exercised sparingly and only in plain cases.

It is the last of these propositions, based on the judgment of McGuinness J, with whom Murray J agreed, in Adam that is most relevant in the present case. Hardiman J, in a separate concurring judgment confirmed the existence of the remedy to set aside leave, but did not express any view on the standard applicable on such applications. Nonetheless, it is significant that, in the part of his judgment which concerns the merits of the order setting aside leave, he characterised the applications then before the Court as being "frivolous, vexatious and doomed to fail." McGuinness J, in her judgment approved the following passage from the judgment of Bingham L.J. in Chinoy: "I would unhesitatingly accept that those are grounds upon which the court could exercise its discretion to set aside leave previously given.

But I would not accept the suggestion that the court's jurisdiction may only be exercised where nondisclosure or new factual developments are demonstrated. It seems to me that it is a jurisdiction which exists and which the court may exercise if it is satisfied on inter partes argument that the leave is one that plainly should not have been granted. I would however, wish to emphasise that the procedure to set aside is one that should be invoked very sparingly. It would be an entirely unfortunate development if the grant of leave ex parte were to be followed by applications to set aside inter partes which would then be followed, if the leave were not set aside, by a full hearing.

The only purpose would be to increase costs and lengthen delays, both of which would be regrettable results. I stress therefore that the procedure is one to be invoked very sparingly and it is an order which the court will only grant in a very plain case. I am, however, satisfied, as I have indicated, that the court does not have discretion to grant such an order if satisfied that it is a proper order in all the circumstances." McGuinness J continued: "I would accept that this jurisdiction should only be exercised very sparingly and in a very plain case.

The danger outlined by Bingham LJ in the passage quoted above would be equally applicable in this jurisdiction. One could envisage the growth of a new list of applications to discharge leave to be added to the already lengthy list of applications for leave. Each application would probably require considerable argument - perhaps with further affidavits and/or discovery. Where leave was discharged, an appeal would lie to this Court. If that appeal succeeded, the matter would return to the High Court for full hearing followed, in all probability, by a further appeal to this Court.

Such a procedure would result in a wasteful expenditure of court time and an unnecessary expenditure in legal costs; it could be hardly said to serve the interests of justice. The exercise of the court's inherent jurisdiction to discharge orders giving leave should, therefore, be used only in exceptional cases."

It follows that the applicant for the order to set aside carries a heavier burden than the original applicant for leave. The latter has to show that he has an arguable case. The former has to establish that leave should not have been granted, a negative proposition. It is both logical and convenient to the administration of justice that this should be so. The leave procedure was intended to provide a filtering process, a protection against frivolous or vexatious applications. The judge at the ex parte case will scrutinise applications for leave. Obviously his decisions will not always be right. Hence the need to permit applications to set aside, where clearly unmeritorious applications have slipped through the net. There is also a need to be able to set aside orders made where there has been a failure by the applicant to observe the principle of utmost good faith, of which the present case is not an example. On the other hand, to permit this option to operate as a pre-emptive hearing of the substantive trial would defeat the purpose of the judicial review machinery for all the reasons given by McGuinness J and Bingham L.J.”

8. From those comments and also drawing on observations made in the High Court in earlier cases, the following can be stated for the purposes of this application: a. The jurisdiction rests on the moving party establishing that leave plainly should not have been granted and the underlying case is clearly unmeritorious. In all other cases the matter should proceed to trial. b. The jurisdiction should be used very sparingly, and only in exceptional cases. It is analogous to cases where a case is struck as unsustainable and bound to fail. Although even in that regard, account must be taken that unlike many other forms of litigation an applicant in a judicial review action must undergo some initial, albeit ex parte, filtering process. Hence, there is a reduced likelihood of plainly unmeritorious litigation commencing on the judicial review side. c. The burden of proving that leave should not have been granted is a heavy burden which rests on the party making the application to set aside leave. This negative burden is heavier than the burden on a party seeking leave to apply for judicial review. d. A practical concern underpins the jurisprudence. If it was operated without stringent constraints, it could likely lead to a proliferation of applications to set aside grants of leave, which would increase costs and lengthen delays. In that sense the approach adopted in the case law is congruent with the general proposition that litigation should be resolved by a trial rather than by pretrial applications. An application to set aside leave should not become a pre-emptive hearing of the substantive trial.

THE UNDERLYING PROCEEDINGS

9. In many respects, this application highlights the risk that in some senses an application to strike out a grant of leave can operate as a form of proxy for a trial. The application generated multiple affidavits and exhibits, together with detailed legal submissions, and much of the material was directed to the question of the validity or invalidity of the impugned decisions.

10. The High Court (Hyland J.) granted leave to apply for judicial review on the 4 March 2024. Leave was granted to seek the relief set out in the original statement of grounds, which was filed on the 1 February 2024. One of the reliefs sought and in respect of which leave was granted was an order under Order 84, rule 21(4) of the RSC extending time for the bringing of the application. The grant of leave also authorised the applicants to file an amended statement of grounds.

11. The amended statement of grounds was filed on the 5 March 2024. The primary relief sought against DCC were as follows:

(i) An order of certiorari quashing the decision of DCC dated the 4 December 2023 invalidating a “Certificate of Compliance on Completion” submitted by the applicants on the 15 November 2023 and refusing to register it on the statutory register.

(ii) An order of certiorari quashing the Enforcement Notice dated the 2 August 2022 issued by DCC to the applicants.

(iii) If necessary, an order of certiorari quashing the decision of DCC dated the

17 May 2021 purporting to invalidate a commencement notice submitted by the applicant on the 12 May 2021.

12. The relief sought was grounded in extensive legal and factual arguments concerning the operation of the Building Control Act 1990, and instruments made under the 1990 Act, being the Building Regulations 1997 (as amended) and the Building Control Regulations 1997 (as amended). The amended statement of grounds runs to over 40 pages and I have endeavoured to summarise the key matters below. As DCC has not filed opposition papers and as the focus of the application was on the question of delay I intend simply to set out the basic factual assertions as found in the statement of grounds.

13. The underlying factual situation as pleaded by the applicants was that the first applicant undertook fit out works at two adjoining premises at Fleet Street, Dublin 2. The applicants state that having obtained a Disability Access Certificate and a Fire Safety Certificate they lodged a Commencement Notice on the DCC Building Control Management System (BCMS) pursuant to articles 8 and 9 of the Building Control Regulations.

14. On the 17 May 2021, the applicants were informed that the Commencement Notice was invalid because the application form did not state a valid date for a final grant of planning permission for the works. The applicants say that planning permission had been obtained on the 10 November 2015, it had expired, and an application for retention permission was submitted for retention of the works and modifications. The retention permission application was granted on the 30 March 2023.

15. A new Commencement Notice was applied for on the 24 November 2021. That application was invalidated on the 26 November 2021.

16. The applicants accept that the works began after the invalidation of the commencement notice and there was default under the Building Control Regulations in that regard.

17. On the 2 December 2021, DCC inspected the property. The applicants assert that this inspection related to the Commencement Notice issued under the Building Control Regulations. They say that the resulting Inspection Report also dated the 2 December 2021, concluded that a warning letter, with enforcement notice and prosecution may have to be pursued.

18. The applicants say that they were not furnished with the inspection notes and inspection report until after the service of an enforcement notice. The applicants say that they were served with a warning letter on the 8 December 2021. A number of criticisms are made in relation to the contents of the warning letter. The applicants through their engineer responded on the 16 December 2021. The letter, it was argued, noted a desire to engage constructively, and asserted that there was no breach of the Building Regulations.

19. On the 1 February 2022, DCC sent a second warning letter. Inter alia, that letter asserted certain breaches of the Building Control Regulations and that a certificate of compliance on completion could not be recorded for works that were not properly notified. The applicant’s engineer responded on the 28 February 2022, and made a number of observations and proposals. A further warning letter issued on the 13 April 2022.

20. On the 2 August 2022, DCC served an enforcement notice. The applicants criticise the enforcement notice for reciting breaches of the Building Regulations rather than the Building Control Regulations, and state that this was the first time that an issue under the Building Regulations had been flagged. Other alleged flaws in the enforcement notice were identified by the applicants. The applicants attempted to engage through their solicitors with DCC, and while they eventually received responses and clarifications, they characterise the efforts of DCC as ex post facto attempts to remedy the defects in the enforcement notice.

21. Following further exchanges of correspondence, the District Court annulled the enforcement notice. The applicants say that the District Court also determined that the invalidation of the Commencement Notice in the first place was itself invalid. That decision was the subject of judicial review proceedings brought by DCC which resulted in an order of certiorari on the 29 January 2024.

22. The applicants say that after the District Court annulled the enforcement notice the works were completed, and practical completion was achieved on the 28 July 2023. They say that, at a licensing hearing in the District Court on the 5 September 2023, a Senior Fire Officer confirmed that there was no objection to the works or the licencing application.

23. The applicants say that, on the 15 November 2023, they applied for the registration of the certificate of compliance on completion. On the 4 December 2023, DCC responded, stating that they could not register the certificate for a variety of stated reasons. The applicants set out in the statement of grounds the flaws that they contend for in the reasons given by DCC.

24. In relation to the question of the need for an extension of time to challenge the DCC decisions, the applicants set out a variety of reasons, particularly in relation to their decision to challenge the August 2022 enforcement notice in the District Court, and the events that followed on from the District Court decision which was made in May 2023. Inter alia, the applicants argue that recourse to the High Court “presents the best and unitary means for the issues to be finally and authoritatively determined and will avoid further judicial reviews and/or cases stated from the District Court, regarding arguments about the limit and extent of the District Court jurisdiction.”

25. The applicants say that they should have an extension of time to challenge the invalidation of the commencement notice dated the 17 May 2021 as it was “intimately tied up and related to the questions of both the CCC and Enforcement Notice”.

26. Insofar as relief is sought against the additional respondents, this is presented as a fallback argument. If the applicants are found to be incorrect in their assertions about the lawfulness of DCC’s decisions under challenge, they assert that the Building Control Regulations or articles thereof should be struck down as being ultra vires the 1990 Act and/or on the basis that they are inconsistent with the Constitution.

THE DCC APPLICATION

27. The DCC application was made by way of notice of motion dated the 25 April 2024. In the motion DCC seek orders setting aside the grant of leave in relation to the challenges to the

decision of the 17 May 2021, invalidating the commencement notice, and the challenge to the Enforcement Notice of the 2 August 2022. The notice of motion sets out that the grant of leave in respect of each issue should be set aside on grounds that (i) they are out of time, and (ii) an abuse of process because of material non-disclosure. A third basis in relation to the Enforcement Notice challenge is that the applicants failed to exhaust alternative remedies.

28. The DCC application has been brought in circumstances where no statement of opposition was filed. While this was highlighted by the applicants, I consider that this is not an obstacle to the application proceeding. The rationale for the exercise of the court’s jurisdiction on this type of application is that, on its own terms, the application for judicial review is so unmeritorious that the decision to grant leave was plainly wrong.

29. However, having regard to the particular status of public bodies in judicial review proceedings and their duty of candour, for instance as identified by the Court of Appeal in Elsharkawy v The Minister for Transport [2024 IECA 258], there would have to be a clear statement from a moving party that the duty of candour has been understood and complied with, and that if their application was not successful the party will be defending the proceedings fully. Put another way, an application to strike out a grant of leave cannot be made where the moving party does not intend to oppose the grant of relief by way of judicial review. It appears clear from the DCC submissions and affidavits that they intend to oppose fully the granting of relief.

30. Counsel for DCC also clarified at the hearing of the application that the relief was no longer being sought on the basis of any assertion that the applicants were guilty of material non-disclosure. The question of material non-disclosure was contested by the applicants, and, in his affidavit, the first applicant had requested that it be withdrawn. The issue was not addressed in DCC’s written submissions. At the hearing of the application, counsel for the applicants drew attention to the serious nature of this type of allegation and considered it ought to have been formally withdrawn.

31. I agree that it is not appropriate for a public body to accuse another party of material non-disclosure and not to formally withdraw the accusation if it is not to be pursued. An allegation of material non-disclosure is serious and, if made out, can provide a basis for the court to exercise its discretion to refuse relief. As put by counsel for the applicants, it should not be floated and then abandoned without explanation. However, in the premises, while the approach of DCC to this issue was unsatisfactory, I do not consider that in and of itself it is a reason to refuse their application.

32. In its arguments, DCC highlighted that the caselaw on judicial review was premised on administrative and quasi-judicial decisions being challenged promptly. Where there is a doubt about the legality of such decisions, the principles of legal certainty and secure administration require challenges to be brought within the relevant timeframes; see, for instance, the observations of Murray J. in Arthropharm (Europe) Limited v. Health Products Regulatory Authority [2022] IECA 109.

33. DCC went on to note a series of cases and observations where relief was refused – either at the leave stage or after a full hearing – on the basis that the application had been brought out of time. DCC noted that, in Arthropharm, the Court of Appeal had stated in relation to Order 84, r.21, that: “… the effect of the rule is clearly to place an obligation on the party seeking an extension of time to identify on oath the reasons the application was not brought during the period fixed by Order 84, Rule 21(1) and during the time between the expiry of that point and the date on which the application was eventually brought.”

34. In this case, it has to be noted that the High Court at the leave stage was alive to the issue of delay as it had been addressed in the statement of grounds and grounding affidavit. The court, it must be inferred, chose not to refuse the grant of leave on the basis of delay and was satisfied to grant leave on the grounds set out, where part of the relief sought was an extension of time.

35. In essence, the DCC approach was that in this case (i) the challenges to the two decisions were clearly out of time, and (ii) any application for an extension of time was bound to fail. The implication – having regard to the principles identified above – is that the High Court was plainly wrong to grant leave to apply for judicial review as essentially the application for an extension of time could never succeed at trial.

36. The applicants made three points in response: First, it argued that DCC was treating its application as a standalone application for an extension of time, which it is not. The question before the court is whether the grant of leave was plainly wrong, not whether there is a basis for an extension of time. Second, the applicants highlighted the very limited support in caselaw for setting aside leave on delay grounds. Third, the applicants noted that the DCC approach was heavily reliant on cases from the planning law context, where the underlying primary legislation imposes stricter time limits than O.84 and more stringent tests for an extension of time.

37. The applicants also argued that their case engages issues relating to their constitutional property rights, and noted the discretionary nature of relief in judicial review.

DISCUSSION

38. In the first instance, I agree with the applicants that this is an application to set aside the grant of leave, and not an application to determine whether an extension of time is warranted. However, I do not consider that an application to set aside a grant of leave cannot be predicated on a clear argument relating to delay. There are cases, albeit only a small number were identified, where judicial review proceedings were struck out prior to trial on grounds related to delay. Each case will have to be determined on its own facts. Here, for the reasons set out below, I am not satisfied that there is no prospect that a court at trial, having considered all the circumstances, will refuse to grant an extension of time.

39. In this case, the applicants were granted leave to apply for an extension of time, reasons were set out in the amended statement of grounds to support that application, and those reasons were reiterated in the grounding affidavit of the first applicant sworn on the 30 January 2024. The DCC application essentially is predicated on the assumption that there is no need for a statement of opposition or a full trial following a further exchange of affidavits because the outcome is so clear.

40. DCC highlighted in their oral arguments that it has real concerns about the fact that the works concerned in the overall proceedings were completed in an irregular manner and that this gives rise to issues of public safety. They are all legitimate concerns, but they are heavily contested, and the court cannot resolve those disputes in an interlocutory application. The sheer extent of the papers submitted for the purpose of determining an argument that the grant of leave was plainly wrong – seven folders, including authorities – highlight the heavily contested nature of the proceedings and the complexity of the underlying arguments. Even with a focus on the delay issues, the manner in which the application was presented took on the appearance of a proxy trial of the main issues, albeit before the pleadings and exchange of affidavits in the main case have closed.

41. If this case had been permitted to proceed to trial without the intervention of an application to set aside the grant of leave, there is every prospect that at this point it would be close to being ready for trial, particularly given the manner in which the judicial review list has shortened in recent years.

42. I am mindful of the fact that there are cases where the question of delay and whether an extension of time should be granted have been dealt with either as a preliminary matter (for instance in Arthropharm) or by way of a motion to set aside leave (see, McD. v. Commission to Inquire into Child Abuse [2003] 2 IR 348).

43. In Arthropharm, the application was successful in the High Court and upheld in the Court of Appeal. That case was relatively straightforward as the applicant sought to challenge a single decision by HPRA and commenced proceedings out of time. In that case, there had been a full exchange of pleadings and affidavits, including affidavits from a third party who was affected by the decision and whose commercial rights would have been impacted if the proceedings continued. Hence, the court was fully equipped with the evidence to address whether an extension of time was warranted, particularly because all the evidence in the case was before the court.

44. In McD., the High Court set aside leave, in a somewhat unusual case where the applicant sought to challenge a decision by the respondents to refuse his application for an opportunity to recount his alleged abuse. That occurred against the backdrop where the respondents’ statutory inquiry imposed generous deadlines and “a period of grace” for such applications with a view to bringing finality in their proceedings and having regard to the rights of other parties affected by their processes. A statement of opposition had been filed that highlighted the failure of the applicant to show good reason for an extension of time.

45. The applicant had sought to explain that he initially decided not to challenge the respondents’ decision and then took the course of writing to the President of Ireland seeking an intervention. The High Court considered that these matters could not amount to a good reason for an extension of time. Moreover, the High Court addressed the question of delay in the context of the impugned decision and the need for the respondent to regulate its affairs. The Court considered that if the proceedings were permitted to continue it would prejudice the proper regulation of the respondents’ processes and also potentially prejudice the rights of those against whom complaints had been made. The Court noted that in De Roiste v Minister for Defence [2001] 1 IR 190 the Supreme Court – on the basis of the then provisions of Order 84

– had observed that considerations of whether an extension of time should be allowed “may be more readily assessed in a substantive hearing.”

46. Ultimately, my decision is that DCC has not discharged the burden of proving that this is a case where the grant of leave was plainly wrong. DCC has not established that the case brought by the applicants, including the part of the case seeking an extension of time, is so lacking in merit that it should not be permitted to proceed to trial.

47. I consider that the applicants should have the opportunity to have their case heard by way of the normal route in cases of this type. The applicants contend that there is a relationship between the various impugned decisions such that a unitary trial is preferable. A full trial appears preferable in this case where the issue of the need for an extension was addressed by the applicants from the outset and where reasons were given for that aspect of their application for leave to apply for judicial review. I have taken into account that even if DCC was granted the relief sought this would not bring the proceedings to a conclusion.

48. That is not to say that the DCC arguments on delay are misplaced or unstateable. This judgment does not make any finding that the applicants are entitled to an extension of time in relation to their claims. DCC should be permitted to agitate the delay issues as part of their overall opposition to the applications, and this is a matter that should be left to the judge hearing the full action.

49. As this is an interlocutory ruling, I have made a decision not to engage in any detailed discussion of the underlying merits of the case. These are matters that will have to be dealt with at the trial of the action and nothing addressed in this judgment should impinge on the entitlement of the trial judge to make the findings that appear appropriate at that stage.

50. In the premises, I am refusing the application. I will adjourn the matter to the Non-Jury Judicial Review directions list with a recommendation that efforts are made to accelerate the proceedings to allow for a prompt hearing. As this judgment is being delivered electronically, I will express the view that the applicants should be entitled to the costs of the application but that the effect of any costs order should be stayed pending the determination of the overall proceedings in the High Court. I will adjourn the application for final orders to 10.30am on Thursday, the 18 September 2025.