High Court grants leave for judicial review where Circuit Court failed to refer non-frivolous questions of law to Court of Appeal.

APPROVED [2025] IEHC 447

THE HIGH COURT

JUDICIAL REVIEW

2025 523 JR

BETWEEN

CON MURPHY

CATHY MURPHY

APPLICANTS

AND

ROSCOMMON COUNTY COUNCIL

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 gravamen of the judicial review proceedings is that the Circuit Court erred in law in failing to refer a consultative case stated to the Court of Appeal. It is said that the questions of law posited by the Applicants for reference to the Court of Appeal were not “frivolous”.

2. The judicial review proceedings arise in the context of a criminal prosecution for an alleged failure to comply with enforcement notices issued under Part 8 of the Planning and Development Act 2000 (“PDA 2000”). The defendants to the criminal prosecution are the parties applying for judicial review (“the Applicants”). The Applicants had been represented by solicitor and counsel in the criminal proceedings. The Applicants sought to defend the criminal proceedings on a wide range of legal grounds. These included, relevantly, whether it was legitimate to use a single enforcement notice in respect of two individuals; whether the decision to serve the enforcement notice complied with the requirements of the Habitats Directive (Directive 92/43/EC); whether the carrying out, by the local authority, of the steps prescribed under the enforcement notice would itself constitute a breach of the Habitats Directive; and whether the District Court summons was valid.

3. The Applicants were unsuccessful before the District Court and exercised their right of appeal to the Circuit Court.

4. An overarching jurisdictional question arose before the Circuit Court as follows. This jurisdictional question centred on whether the District Court (at first instance) and the Circuit Court (on appeal) can “look behind” an enforcement notice. Put otherwise, are the formal proofs which must be met for a successful criminal prosecution for breach of an enforcement notice confined to the following: is the prosecutor simply required to prove, first, that the enforcement notice was properly served, and, second, that the prescribed steps were not carried out within the time limited? On this analysis, it would not be open to a defendant to raise—nor for the District Court and Circuit Court to adjudicate upon—any line of defence which impugns the underlying validity of the enforcement notice. This question remains open at the level of the High Court:

see the discussion in Browne, Simons on Planning Law (3rd Ed., Round Hall, 2021) (§11-214 to §11-216).

5. This distinction assumes a particular importance in the present case in that many of the grounds of defence put forward in the Circuit Court did impinge upon the validity of the enforcement notice.

6. The Circuit Court addressed this issue at a number of points in its written judgment of January 2025. In particular, the issue had been addressed as part of the determination of an application for a direction dismissing the prosecution.

7. Thereafter, the issue had been addressed again, in the specific context of the Habitats Directive, as follows.

“The Court found the submissions on the Council Directive

92/43/EC — the Habitats Directive on behalf of the

Appellants compelling reading and I have a certain sympathy

for them in this regard. However, I am satisfied that there is

no right of appeal in respect of the service of an Enforcement

Notice and it seems that the only method of challenging the

Enforcement Notice is by way of Judicial Review before the

High Court. This may be unsatisfactory with regard to cost

and delay, however, that is the only effective remedy that this

Court finds is available to the Appellants in this case.”

8. This rationale informed the subsequent decision of the Circuit Court in relation to the application to refer a consultative case stated to the Court of Appeal. The learned judge held that it was not necessary to state a case on any of the issues posited by reason of the fact that the Circuit Court had not been required to deal with these issues as part of the appeal in circumstances where, in its view, such issues could only properly be raised in separate judicial review proceedings. The Applicants respectfully disagree with this interpretation of the PDA 2000.

9. It should be emphasised that the threshold for referring a consultative case stated differs as between the District Court and the Circuit Court. The District Court is required to state a case unless it considers the request frivolous. By contrast, the Circuit Court has a much broader discretion under section 16 of the Courts of Justice Act 1947. The nature of the discretion has been described as follows by the Supreme Court in McKenna v. Deery [1998] 1 IR 62 (at 75):

“The discretion conferred on the Circuit Court Judge by s. 16

of the Act of 1947 is in terms unlimited but all discretions

conferred on courts must be exercised judicially.

Nevertheless, consultative cases stated are primarily for the

guidance and assistance of the judge who is asked to state

such a case and if the judge is quite clear in his own mind as

to the proper decision in the case, prima facie he is entitled

to refuse the application and to go ahead and decide the case

in accordance with his firm and positive views. The superior

courts should be slow to interfere in such a case and should

only do so if there is not merely an arguable case, but

substantial, weighty and solid grounds calling for a decision

by the Supreme Court on the question or questions of law the

subject matter of the application by one of the parties to the

proceedings. […]”

10. As appears, a party who seeks to challenge a refusal by the Circuit Court to refer a consultative case stated to the Court of Appeal faces a significant hurdle in persuading the court of judicial review that the Circuit Court erred in the exercise of its discretion.

11. Having said that, it must be recalled that, for the purpose of the leave application, the High Court need only be satisfied that there are arguable grounds of judicial review. It is not necessary to go further and consider whether the proceedings have a real prospect of success. I am satisfied that the Applicants have met the low bar of arguable grounds. In particular, it is arguable that the Circuit Court may have fallen into error in failing to consider, as an overarching issue, whether a consultative case stated should have been referred in relation to the question of whether it is permissible to “look behind” an enforcement notice in criminal proceedings (as opposed to judicial review proceedings). Here, the rationale of the Circuit Court seems to have been to find, first, that the District Court and Circuit Court cannot consider the validity of an enforcement notice, and then to find, second, that, on this analysis, the questions which the Applicants wished to refer to the High Court were not properly amenable to a case stated. This presupposes that this is the limit of the jurisdiction in the context of a criminal prosecution. This is not a clear-cut issue.

12. Accordingly, I propose to grant leave to apply for judicial review. It seems to me that there are arguable grounds for saying that the Circuit Court might have erred in its approach to the request for a consultative case stated by failing to consider a reference on the overarching issue. There are also arguable grounds for saying that at least some of the questions of law raised by the Applicants were appropriate for a case stated.

13. I have carefully considered whether it might be appropriate to “edit” the grounds of judicial review, i.e. by refusing leave on some of the specific grounds pleaded. On balance, however, there would be no benefit in terms of a saving of time and costs in so doing. The exclusion of some grounds would have no material effect on the length of the hearing of the substantive application for judicial review and it might result in an unfairness to the Applicants in that the court might exclude a ground at this preliminary stage without having a full appreciation of its significance in the overall context of the proceedings. It seems to me, therefore, that it is safer to allow the matter to go ahead on all grounds.

14. Finally, it is necessary to say something about the title of the proceedings. The Circuit Court judge had been joined to the proceedings as respondent in the original version of the statement of grounds. Counsel indicated, in the course of his oral submissions on the leave application, that he would seek to amend the title in the event leave were granted. This is sensible in circumstances where there is no allegation of mala fides or other form of personal misconduct made against the judge.

15. Order 84, rule 22(2A) of the Rules of the Superior Courts provides as follows:

“Where the application for judicial review relates to any

proceedings in or before a court and the object of the

application is either to compel that court or an officer of that

court to do any act in relation to the proceedings or to quash

them or any order made therein—

(a) the judge of the court concerned shall not be named

in the title of the proceedings by way of judicial

review, either as a respondent or as a notice party, or

served, unless the relief sought in those proceedings

is grounded on an allegation of mala fides or other

form of personal misconduct by that judge in the

conduct of the proceedings the subject of the

application for judicial review such as would deprive

that judge of immunity from suit,

(b) the other party or parties to the proceedings in the

court concerned shall be named as the respondent or

respondents, and

(c) a copy of the notice of motion or summons must also

be sent to the Clerk or Registrar of the court

concerned.”

16. There has been some debate in the case law as to whether the imperative that the judge not be “named” in the title of the proceedings is to be interpreted as meaning that the judge should not be joined to the proceedings as a respondent, or, alternatively, that the judge should be joined but on an anonymised basis only, i.e. “A Judge of the District Court”. The preponderance of the case law supports the first proposition. See, in particular, M. v. M. [2019] IECA 124, [2019] 2 IR 402 (at paragraph 21):

“Therefore, it is clear that in circumstances where a

determination of the Circuit or District Court is to be

judicially reviewed, the judge must not be named, neither by

name nor anonymised, as respondent and that in its place, as

substitute for the judge, the other party or parties in the

Circuit or District Court should be joined as respondents —

unless allegations of mala fides or other misconduct against

the presiding judge form part of the grounds of review.”

17. This is consistent with the constitutional imperative that justice should be administered in public save in such special and limited cases as may be prescribed by law. The public nature of court proceedings will generally require that the parties and the judge or judges involved be identifiable. The object of Order 84, rule 22(2A) is not to afford judges anonymity in cases to which they are properly joined as respondents, but rather to ensure that a judge is not joined to proceedings to which they are not the legitimus contradictor. This respects the principle of judicial independence and judicial immunity.

18. The title of the proceedings will, therefore, be amended by removing the Circuit Court judge as respondent and naming Roscommon County Council as respondent in lieu.

CONCLUSION AND FORM OF ORDER

19. Leave to apply for judicial review is granted. The Applicants are to issue a motion in respect of the substantive application for judicial review returnable for Tuesday 7 October 2025. They are also to file an amended statement of grounds naming Roscommon County Council as the sole respondent and omitting reference to the Circuit Court judge.

20. The Applicants have sought a stay on the Circuit Court orders. Having regard to the judgment of the Supreme Court in MD v. Board of Management of a Secondary School [2024] IESC 11, it would be inappropriate to grant what would amount to an interim injunction pending the determination of the judicial review proceedings. The appropriate order is to grant a stay for a limited duration only. Accordingly, a stay will be imposed up and until Wednesday

27 August 2025. The Applicants’ solicitor should now write to the local authority and inquire as to whether it will consent to a longer stay. In the event that such consent is not forthcoming, and that the Applicants seek to extend the stay, the Applicants should issue a notice of motion seeking an interlocutory injunction. Any such motion should be made returnable before me on 27 August 2025.

Appearances

Michael O’Donnell for the applicants instructed by Michael O’Shea & Co. Solicitors