Judicial review application dismissed for failing to meet the three-month time limit under Order 84 rule 21.

APPROVED [2026] IEHC 307

THE HIGH COURT

JUDICIAL REVIEW

2025 1093 JR

BETWEEN

D.B.

APPLICANT

AND

LEGAL AID BOARD

RESPONDENT

JUDGMENT of Mr. Justice Garrett Simons delivered on 21 May 2026

INTRODUCTION

1. This judgment is delivered in respect of an inter partes application for leave to apply for judicial review. Leave is refused in circumstances where the proceedings were commenced well outside the three-month time-limit prescribed under Order 84, rule 21 of the Rules of the Superior Courts.

PROCEDURAL HISTORY

2. These judicial review proceedings arise out of earlier family law proceedings. The family law proceedings were taken by the applicant against his spouse.

3. The applicant had been granted a legal aid certificate in respect of the family law proceedings. Thereafter, the Legal Aid Board notified the applicant of its intention to terminate the legal aid certificate on the grounds that the applicant was behaving unreasonably in the conduct of the proceedings. The particulars were set out as follows in the notice: “Your solicitor advises that you;

• have made false allegations of bias/conflict against the Law

Centre without providing any reasons or evidence,

• have refused to accept the advices of counsel and your

solicitor, most recently during a telephone consultation on

the 18th October 2023,

• have persisted in sending e-mails to [the court assigned

medical assessor] despite being asked to stop as per the email

sent to you from your solicitor dated the 17/10/23,

• have sought to assign responsibility for the outcome of the

psychological assessment which you were unhappy with

onto your solicitor,

• have threatened to make a professional complaint on the

basis of a false assertion that you had never met your solicitor

and that you are not being properly represented,

• have falsely claimed that the reading of the medical

assessor’s report via telephone is illegal. It is noted that your solicitor had sent letters to you dated the 17/06/2023 and the 19/10/2023 in which your conduct was addressed. Your solicitor has also advised that you were verbally abusive to a member of his staff at the Law Centre in January 2022.”

4. The letter concluded by informing the applicant that it was open to him, within a period of one month of receipt of the letter, to show cause in writing why such termination should not be proceeded with. In the event, the applicant did not avail of this entitlement to show cause.

5. The Legal Aid Board served notice of termination on 23 April 2024. The operative part of the notice of termination reads as follows: “I refer to the letter which was sent to you on the 11th January 2024 notifying you of the Legal Aid Board’s intention to terminate your legal aid certificate […] and offering you a period of one month of receipt of that letter to show cause in writing through your solicitor or directly with the Board why such termination should not be proceeded with.

As no such response to the above letter has been received, I

am to inform you that under the terms of Regulation 9(3) of

the Civil Legal Aid Regulations, 1996-2021 and in particular

Regulations 9(3)(c) and (e) the decision has been taken to

terminate your legal aid certificate on the grounds that you

are considered to be behaving unreasonably in the conduct

of the proceedings to the point where your solicitor has

requested the termination of your legal aid certificate.”

6. The particulars of the applicant’s alleged unreasonable conduct were then set out. These mirror the particulars set out in the notice of intention (cited above). The notice of termination concluded as follows:

“If you wish to have this decision reviewed, further

information relevant to the Board’s decision must be

submitted in writing for consideration by the Board. The

information may be submitted through your solicitor, or

alternatively, directly to the Board. If you wish to appeal the

decision, an appeal must be lodged to an Appeal Committee

of the Board. You may submit your appeal directly to the

Board, or alternatively through your solicitor. The

submission of further information for the purpose of a review

or the lodgement of an Appeal must be made within one

month from the date on which you receive this letter

informing you that legal services are withdrawn.”

7. The applicant submitted a complaint to the Legal Aid Board’s complaints unit on 9 June 2024. An email was sent in reply as follows:

“Please note any queries or question in relation to the

termination of your legal aid certificate should be directed to

the law centre you obtained legal services from as this

complaints unit unfortunately does not deal with this matter.

This complaints unit only deals with complaints in relation

to the service delivery of our Law Centre network i.e. staff,

solicitors and law centres e.t.c. I note you are unhappy with

the service you have received and I would be much obliged

if you could please confirm if you would like to make a

formal complaint. If you wish to make a formal complaint

could you please provide us with the details of who your

complaint is against and also the nature of such complaint.”

8. In the event, the applicant invoked neither the review nor the appeal process in relation to the notice of termination. The assigned solicitor came off record in the family law proceedings on 3 July 2024. On 25 November 2025, the family law proceedings were heard together with a related set of proceedings which had been instituted by the applicant’s spouse. The applicant appeared before the Circuit Court as a litigant in person. A decree of divorce was granted.

9. The applicant’s complaints to the Legal Aid Board were dealt with as follows. A first-instance decision was communicated to the applicant on 18 September 2024. The operative part of the decision reads as follows:

“As stated above, I have read through all emails and

correspondence on [Mr B’s] file in conducting the

investigation into this matter. I do not uphold any of the

complaints made against [the solicitor]. I am satisfied that

there was justification for sending the warning letters to the

Complainant in relation to his behaviour on 17th June 2023

and 19th October 2023. In circumstances where [Mr B] did

not take due heed of same, I am satisfied that a submission

was made to seek termination of his Legal Aid Certificate. I

note that the Complainant was clearly informed about how

to go about appealing the intention to Terminate and the

Termination but chose not to do same. It appears that it was

on foot of notification of the termination of the Legal Aid

Certificate and the application to Come Off Record that this

complaint was filed.

Therefore, on behalf of the Legal Aid Board, I do not accept

or uphold any of the claims made against the solicitor in this

matter.

Right of Review

I am advising [Mr B] that, under the Legal Aid Board’s

Complaints Procedures, if [Mr B] is not satisfied with the

way this complaint has been handled then he is entitled to

seek that the handling of this complaint be reviewed by a

Review Officer.

In this instance, the Review Officer shall be the Director of

Internal Service Delivery (Civil). If he wishes to seek a

review of the handling of the complaint then he should

request such a review within the next 14 days, failing which

this matter will be concluded and closed.”

10. The applicant exercised his right of review. The first-instance decision was upheld by a review decision dated 12 December 2024.

JUDICIAL REVIEW PROCEEDINGS

11. The applicant instituted these judicial review proceedings on 16 July 2025. On that date, a statement of grounds was filed in the Central Office of the High Court together with a verifying affidavit. The typed version of the statement of grounds does not specify any reliefs. However, there is a handwritten addition which identifies, in broad terms, the following reliefs. The applicant seeks an order of certiorari quashing the acts, omissions and decisions of the Legal Aid Board in relation to his family law proceedings. The applicant also seeks an order of mandamus directing the Legal Aid Board to “fully account for and correct” the applicant’s legal aid case file.

12. The principal grounds upon which the reliefs are sought are as follows. First, it is pleaded that the Legal Aid Board failed to provide fair and effective legal representation. In particular, it is alleged that there has been a failure to address a specific aspect of the family law proceedings. Secondly, it is said that the applicant submitted a formal complaint on 15 November 2023 outlining misconduct, conflict of interest, and procedural failures, yet received no formal investigation or remedy. This appears to be a reference to a data access request: the formal complaint was only submitted on 9 June 2024.

13. As part of the case management directions, the applicant was requested to prepare a summary statement of his grounds. It is sufficient to record that this statement refers to the underlying merits of the family law proceedings.

14. An order was made directing that the application for leave to apply for judicial review be heard on notice to the Legal Aid Board. The leave application was assigned to me for hearing on 30 April 2026. At the conclusion of the hearing, the applicant was given liberty to file further written submissions in respect of any points which he felt he had not addressed fully at the hearing. A submission was received by email on 5 May 2026 attaching a short supplemental note for the court’s consideration.

CHRONOLOGY OF KEY EVENTS

15. A chronology of the key events is set out in tabular form below:

14 July 2020 Application for legal aid certificate

12 November 2020 Consultation with solicitor

24 November 2020 Legal aid certificate issued

16 June 2022 Circuit Court appoints medical assessor

17 June 2023 Warning letter re: applicant’s conduct

18 October 2023 Telephone consultation with solicitor and counsel re: medical assessor’s report

19 October 2023 Further warning letter re: applicant’s conduct

15 November 2023 Applicant seeks information (data access)

7 December 2023 LAB seeks confirmation that data access request is being made

11 January 2024 Notice of intention to terminate legal aid certificate

23 April 2024 Notice of termination

9 June 2024 Applicant invokes internal complaints process

13 June 2024 Email explaining that the LAB complaints unit

cannot address termination

3 July 2024 Solicitor comes off record in family law

proceedings

18 September 2024 Decision on complaint

12 December 2024 Review decision upholds decision on complaint

16 July 2025 Applicant institutes judicial review proceedings

30 April 2026 Leave application heard on notice

21 May 2026 Judgment on leave application

LEGAL TEST GOVERNING LEAVE APPLICATION

16. The legal test governing an application for leave to apply for judicial review is as stated by the Supreme Court in G. v. Director of Public Prosecutions [1994] 1 IR 374. As explained there, an applicant must satisfy the court in a prima facie manner that the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be an order by way of judicial review, or, if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure.

17. The legal test has been considered more recently by the Supreme Court in O’Doherty v. Minister for Health [2022] IESC 32, [2023] 2 IR 488, [2022] 1 ILRM 421. The Chief Justice, O’Donnell C.J., explained at paragraph 39 of the judgment that the threshold to be met is that of arguability:

“[…] The threshold is a familiar one in the law. It is, in

essence, the same test which arises when proceedings are

sought to be struck out on the grounds that they are bound to

fail, or the test that is normally required in order to seek an

interlocutory injunction. It must be a case that has a prospect

of success (otherwise it would not be an arguable case) but

does not require more than that. While, inevitably,

individual judges may differ on the application of the test in

individual cases at the margins, the test itself is clear. This

test – it must be stressed – is solely one of arguability: it is emphatically not a test framed by reference to whether a case enjoys a reasonable prospect of success, still less a likelihood of success. Any such language obscures the nature of the test and may on occasion lead to misunderstanding, appeal and consequent delay.”

18. The Chief Justice also confirmed (at paragraph 40) that the same threshold test pertains irrespective of whether the application for leave is made ex parte or is made on notice to the respondent.

19. It follows, therefore, that in assessing the merits of the grounds of judicial review pleaded, the High Court must do so by reference to the low threshold of arguability.

20. The approach to be taken in respect of time-limits is somewhat different. Order 84 of the Rules of the Superior Courts indicates that the question of whether the leave application has been made within the time-limit prescribed is a matter which should normally be decided at the leave stage. If it is obvious that the leave application is out of time, then the judge hearing the leave application may properly refuse leave on this basis. This is so notwithstanding that the grant of leave does not necessarily preclude these issues from being revisited at the full hearing. In a complex case, the judge subsequently hearing the substantive application for judicial review may be prepared to revisit the question of delay having had the benefit of arguments from the respondent.

21. Similarly, the judge hearing the leave application is required to consider whether there is an adequate alternative remedy available to an applicant. If it is obvious that such a remedy is available, then leave should be refused. It would defeat the filtering function of the leave stage to allow judicial review proceedings to be pursued in circumstances where same are not the appropriate remedy. Of course, if in any particular case the position is not clear-cut, the leave judge may prefer to reserve to the trial judge the question of whether there is an adequate alternative remedy available.

THREE-MONTH TIME-LIMIT

22. Order 84, rule 21 of the Rules of the Superior Courts provides that an application for leave to apply for judicial review shall be made within three months from the date when grounds for the application first arose. An application for leave is regarded as having been “made” once the statement of grounds and verifying affidavit are filed in the Central Office of the High Court: see Rules of the Superior Courts (Order 84) 2024.

23. Order 84, rule 21(3) and (4) confer discretion on the High Court to extend time as follows:

“(3) Notwithstanding sub-rule (1), the Court may, on an

application for that purpose, extend the period within which

an application for leave to apply for judicial review may be

made, but the Court shall only extend such period if it is

satisfied that:

(a) there is good and sufficient reason for doing so, and

(b) the circumstances that resulted in the failure to make

the application for leave within the period mentioned

in sub-rule (1) either:

(i) were outside the control of, or

(ii) could not reasonably have been anticipated by

the applicant for such extension.

(4) In considering whether good and sufficient reason exists for

the purposes of sub-rule (3), the court may have regard to the

effect which an extension of the period referred to in that

sub-rule might have on a respondent or third party.”

24. The obligations to be complied with by an applicant who seeks an extension of time are prescribed under Order 84, rule 21(5). This rule provides that an application for an extension of time shall be grounded upon an affidavit sworn by or on behalf of the applicant which shall set out the reasons for the applicant’s failure to make the application for leave within the period prescribed and shall verify any facts relied on in support of those reasons.

25. The Supreme Court in M. O’S. v. Residential Institutions Redress Board [2018] IESC 61, [2019] 1 ILRM 149 has confirmed that an applicant, who does not apply for leave to issue judicial review within the time specified, is required to furnish good reasons which explain and objectively justify the failure to make the application within the time-limit, and which would justify an extension of time up to the date of institution of the proceedings.

26. The principles governing the extension of time have been considered more recently by the Court of Appeal in Arthropharm (Europe) Ltd v. Health Products Regulatory Authority [2022] IECA 109. Relevantly, the Court of Appeal (per Murray J.) held that the factors of which account may be taken will include: the nature of the order or actions that are the subject of the application; the conduct of the applicant; the conduct of the respondent; the effect of the decision it is sought to challenge; any steps taken by the parties subsequent to that decision; and the public policy that proceedings relating to the domain of public law take place promptly except where good reason is furnished.

27. The Court of Appeal also emphasised (at paragraph 125) that in the vast majority of applications for an extension of time, the court has no role in assessing the strength of the underlying merits of the proceedings. This is subject to a possible exception where an applicant’s case was extremely strong to the point that the only extant issue in the proceedings was whether time should be extended.

DISCUSSION AND DECISION

28. It should be emphasised that these proceedings take the form of public law proceedings. Such proceedings are properly directed to an act, decision or omission of a public authority which is amenable to the High Court’s supervisory jurisdiction by way of judicial review. Public law proceedings are distinct from private law proceedings, such as, for example, an action for professional negligence. They are also distinct from an appeal on the merits of family law proceedings. An application for judicial review directed against the Legal Aid Board is not the appropriate forum within which to consider the underlying merits of the family law proceedings. The applicant had a right of appeal to the High Court against the Circuit Court’s orders but has not exercised same. He cannot now relitigate these matters in these public law proceedings.

29. It is necessary, therefore, to consider whether the statement of grounds identifies any act, decision or omission which might be amenable to judicial review. There are two decisions disclosed in the papers which might, in principle, be regarded as having a sufficient public law element to make them amenable to judicial review. The first is the decision to terminate the legal aid certificate (23 April 2024). The second is the review decision dismissing the applicant’s complaints (12 December 2024).

30. For completeness, it should be recorded that the applicant’s email correspondence of mid‑November 2023 did not constitute a “complaint” to the Legal Aid Board. In particular, the correspondence was not addressed to the complaints unit and was not framed in terms seeking invocation of the complaints procedure. It did not give rise to any act, decision or omission which might be amenable to judicial review.

31. These judicial review proceedings were not commenced until 16 July 2025. This date was well beyond the three-month time-limit prescribed under Order 84, rule 21. The latest of the two impugned decisions had been made seven months earlier. As explained under the previous heading, a litigant, who does not apply for leave to issue judicial review within the time specified, is required to furnish good reasons which explain and objectively justify the failure to make the application within the time-limit, and which would justify an extension of time up to the date of institution of the proceedings. The applicant has not provided any proper explanation for his delay such as might justify an extension of time. It is evident from the correspondence that the applicant had been notified of the termination of the legal aid certificate at the time. This is not a case where an extension of time might be justified by reason of the fact that the litigant only learned of the relevant decision belatedly.

32. Accordingly, the application for leave to apply for judicial review must be dismissed by reason of the failure to comply with the three-month time-limit.

33. As to the legal costs of the leave application, my provisional ruling is as follows. The default position under section 169 of the Legal Services Regulation Act 2015 is that the party which had been “entirely successful” in the proceedings is entitled to recover its costs against the other party. If the default position were to be applied to the present proceedings, the Legal Aid Board would be entitled to recover its costs as against the applicant. The interests of justice dictate a departure from the default position. An application for leave to apply for judicial review is generally heard in the absence of the intended respondent, with the practical consequence that an applicant is not exposed to costs in the event that leave is refused. It was necessary for the present proceedings to be heard on notice to ensure that the court had all of the relevant material before it. The participation of the Legal Aid Board was of assistance to the court, but it would seem unfair to visit the costs so incurred upon the applicant. Instead, each party should bear their own costs. If the Legal Aid Board wishes to contend for a different form of order than that proposed, it should file and serve written submissions by Friday, 12 June 2026.

Appearances

The applicant appeared as a litigant in person

Peter O’Brien for the respondent instructed by the Legal Aid Board