Judgment Title: Dunmanus Bay Musssels Ltd -v- Aquaculture Licences Appeals Board & Ors
Neutral Citation:  IEHC 214
High Court Record Number: 2012 939 JR
Date of Delivery: 10/05/2013
Court: High Court
Composition of Court:
Judgment by: Hogan J.
Status of Judgment: Approved
Neutral Citation  IEHC 214
THE HIGH COURT
[2012 No. 939 JR]
DUNMANUS BAY MUSSELS LIMITED
ACQUACULTURE LICENCES APPEALS BOARD
THE DUNMANUS BAY MARINE ASSOCIATION, FRIENDS OF THE IRISH ENVIRONMENT, VICTOR MORGAN, LYNDA MORGAN, ROBERT PUTZ AND THE ASSOCIATION OF DUNMANUS BAY FISHERMEN
JUDGMENT of Mr. Justice Hogan delivered on the 10th May, 2013
1. A statutory requirement that applicants applying for leave to apply for judicial review of certain types of specified administrative decisions must do so on notice to potential respondents and notice parties is one of the striking innovations with which the Oireachtas has experimented with in the last two decades or so. The object of these statutory requirements is plainly to give potential respondents and notice parties advance notice of such applications and to afford them a timely opportunity to put forward their case prior to any decision being taken regarding the grant of leave to apply for judicial review. It was obviously considered that an early inter partes hearing would assist the court in isolating at any early stage cases that were unmeritorious and which had no realistic prospect of succeeding or where the grant of leave might prove improvident or otherwise unfairly impact on fair and effective administration.
2. One feature of the new statutory regimes governing applications for judicial review was that they invariably created new jurisdictional pitfalls for potential applicants, not least where (as here) the requirement that the application be moved on notice has actually been overlooked. Where, then, an applicant has failed strictly to comply with these statutory requirements – in this instance, the requirements specified by s. 73(2) of the Fisheries (Amendment) Act 1997 (“the 1997 Act”) - what should be the consequences of such failure? That, in essence, is the question posed by this application for judicial review.
3. The present case may be said to commence with the decision of the Minister for Agriculture, Food and Marine to grant the applicant company (“Dunmanus Bay Mussels”) an acquaculture licence to cultivate mussels using longlines in a certain part of the foreshore in Dunmanus Bay. The notice parties all appealed this decision and on 24th September 2012 the Acquaculture Licences Appeals Board (“the Board”) made a decision to refuse to grant Dunmanus Bay Mussels the relevant licence.
4. The applicant company sought to commence judicial review proceedings with a view to having this decision quashed. To that end an application was made ex parte to this Court (Peart J.) on 19th November, 2012, and leave to apply for judicial review was duly granted. In accordance with the usual practice, Dunmanus Bay Mussels then arranged to have an originating notice of motion issued pursuant to that leave served on the Board and the other relevant notice parties. This service was effected on all relevant parties by 27th November, 2012, at the latest. The motion claimed the reliefs which would be sought at the main hearing, but it made no reference to the requirement to seek leave on notice to the Board and the notice parties.
5. Section 73(2) of the 1997 Act requires, however, that any such application for leave should be on notice to the Board and to the relevant notice parties. The sub-section provides:
( a ) shall be made within the period of three months commencing on the date on which the decision or determination was made, and
( b ) shall be made by notice of motion (grounded in the manner specified in the Order in respect of an ex parte motion for leave) which shall be served on—
(ii) if the application relates to a determination referred to in subsection (1) (b), the Board and each party or each other party, as the case may be, to the appeal, or
(iii) any other person specified for that purpose by order of the High Court, and leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision or determination is invalid or ought to be quashed.”
7. The applicant’s counsel, Mr. McDonagh S.C., has candidly admitted that the reason why no prior leave on notice to the respondents and notice parties was sought was because the requirements of s. 73(2) of the 1997 Act were overlooked. This was first brought to their attention in a letter from the Board’s solicitors on 21st January, 2013. At that point, having realised its error, the applicant company then immediately applied to Kearns P. to have that original ex parte order set aside as having been improvidently granted. Kearns P. made an order to that effect on 22nd January, 2013.
8. At that juncture Dunmanus Bay Mussels then issued the present motion on 21st February, 2013, whereby it sought to amend its originating notice of motion – which, we may again recall, was issued on 19th November, 2012, pursuant to the original grant of leave – in order now to seek leave from this Court on notice to the Board and the notice parties and thus satisfy the requirements of s. 73(2) of the 1997 Act. In effect, the change sought would, if allowed, permit the applicant now to seek leave to apply for judicial review on notice as distinct from seeking actual orders of certiorari quashing the decision of the Board on the premise that leave had already been (validly) granted, which the notice of motion presently assumes.
The effect of the non-compliance with the requirements of s. 73(2) of the 1997 Act
10. This application to amend the notice of motion accordingly raises in stark form the status of proceedings of this kind which have been commenced irregularly and in a manner which did not comply with the requirements of statute. Counsel for the respondent, Mr. Quinn SC and counsel for the notice parties, Ms. Hill, have both powerfully submitted that this irregularity is so profound and grievous that it lies beyond the capacity of the courts to amend and that the proceedings are, accordingly, a nullity.
11. Here it is necessary to seek to ascertain the underlying objects of the legislation, as viewed through the prism of certain key constitutional fundamentals, as an aid to the resolution of this conundrum. The chief objects of s. 73(2) of the 1997 Act may be said to be (i) to ensure that the respondent and the notice parties are aware in a timely fashion of the existence of the proceedings and (ii) to give such parties an opportunity to be heard at the first reasonable opportunity prior to any decision of this Court as to the grant of leave and to resist any such application for leave. There can be no doubt but that the first of these requirements was met, in that the respondents and the notice parties became aware of the existence of the proceedings well before the three month time limit expired. The second requirement has also been substantially complied with, albeit that the ultimate hearing of the leave application has been slightly delayed by reason of the present application to amend the original notice of motion. Critically, however, even if leave to amend the notice of motion is granted, the respondent and the notice parties will then have an opportunity to be fully heard prior to any grant of leave.
12. Viewed in this fashion, the case really presents itself as one where there has been non-compliance with a statutory requirement regarding the commencement of litigation. Does the failure in the present case render the proceedings so manifestly irregular that the proceedings can be regarded as an entire nullity such that they lie beyond the capacity of the courts to amend? As it happens, subject to one case with rather special facts, Goonery v. Meath County Council, High Court, 15th July, 1999, the entire issue is largely res integra.
13. Approaching the problem, therefore, from the point of view of principle, it seems to me that there are several overlapping reasons why such leave to amend should be granted. First, the classic test articulated by the Supreme Court regarding the effect of non-compliance with a statutory obligation is that articulated by Henchy J. in Monaghan UDC v. Alf-A-Bet Promotions Ltd.  I.L.R.M. 64, at 68-9, where he held as follows:-
15. Second, a conclusion that the non-compliance with these statutory requirements rendered the proceedings wholly irregular and thus beyond the capacity of the courts to rescue by means of an appropriate amendment would amount to a manifestly disproportionate interference with the applicant’s constitutional right of access to the courts. In Murphy v. Greene  2 I.R. 566 the Supreme Court held that the requirements of the (then) s. 260 of the Mental Treatment Act 1945 (which subjected certain types of civil proceedings to a prior application for leave on notice requirement) amounted to a curtailment of the constitutional right of access to the courts and, as such, it had to be strictly construed. As Finlay C.J. said of the section it constituted ( 2 I.R. 560, 572):
17. In that case the plaintiff claimed damages for personal injuries against the defendant company and issued proceedings without realising that an order had been made by this Court some two months previously providing for the winding-up of the company. When the proceedings were then served on the company, the plaintiff’s solicitor received a letter from the official liquidator advising them of this development. The plaintiff’s solicitors then applied to this Court for an order pursuant to s. 222 of the Companies Act 1963 (“the 1963 Act”) seeking the retrospective leave of the court to the commencement of the proceedings:
18. Such an application was considered necessary in view of the requirements of s.222 of the 1963 Act which provides:
21. Much the same can be said by analogy so far as the present case is concerned. As I have already indicated, once the applicants were served (even if irregularly) with the proceedings within time, the statutory objectives which s. 73(2) seeks to serve would not be substantially compromised by now granting leave to amend the proceedings. Conversely, the consequences for the applicant would be at least as severe as that presaged by Finlay Geoghegan J. in Re MJBCH with regard to the personal injuries litigant in that case. Indeed, whereas in that case there was a risk that the plaintiff’s action might be statute-barred were leave refused and she was required to commence her personal injuries proceedings afresh, this would certainly be the case here if no such leave to amend were to be granted.
22. Nor can it even be said that the automatic nullification of the proceedings by reason of the non-compliance with the statutory provisions is itself an object of the legislation. No one would credibly suggest that the Oireachtas sought to lay a form of forensic trap for litigants who through some mischance have not perfectly complied with these statutory requirements. On the contrary, the Oireachtas instead merely insisted by the enactment of s. 73(2) that potential respondents receive adequate notice of the claim and have an opportunity to be heard in opposition to the application for leave. Once the objectives are at least substantially safeguarded, then it may be inferred that the Oireachtas had no interest in seeing that applicants were struck out in limine merely by reason of a non-compliance with statutory requirements which did not otherwise unfairly prejudice the interests of the respondent and notice parties. This is especially true in a state bound by the rule of law, where, in the words of Denham J. in White v. Dublin City Council  1 IR 545, 564, “any person affected by an administrative decision has a constitutionally protected right of access to courts to contest its legality”
23. Such a conclusion is, moreover, in line with the established practice of common law courts since the famous exposition of the relevant principles regarding the amendment of pleadings by Bowen L.J. in Cropper v. Smith (1884) 26 Ch.D. 700, 710.:
25. Just as pertinently, in Keegan v. Garda Siochána Ombudsman Commission  IESC 29 – a case where the applicant for judicial review belatedly sought to add a new ground to a statement of grounds which his legal team confessed that they had previously overlooked - Fennelly J. stressed that in Re Article 26 and the Illegal Immigrants (Trafficking) Bill 2000  2 IR 360 the Supreme Court:
The power to amend
30. It follows, therefore, that the Court enjoys an express power to amend by virtue of Ord. 28, r.1. In view of the analysis already advanced, it is appropriate that this power is exercised in view of the bona fide nature of the error, the absence of any overreaching on the part of the applicant and the fact that no real prejudice will be caused to either the respondent or notice party if leave to amend is duly granted.
The decision in Goonery v. Meath County Council
32. Even though the Local Government (Planning and Development) Act 1992 had at that time prescribed a mandatory procedure requiring applicants to seek leave on notice to potential respondents and notice parties in respect of any proceedings challenging the validity of a planning permission, the applicant had also quite separately applied for and obtained leave to apply for judicial review ex parte from Budd J.. Even more puzzling was the fact that the applicant also issued a further motion in which she sought leave to apply for judicial review from this Court, the earlier order (purportedly) granting leave notwithstanding.
33. The order made by Budd J. ex parte referred to a variety of reliefs, many of which might perhaps have been properly applied for in this fashion (such as, for example, claims that the Environmental Impact Directive (Directive 85/337/EEC) had not been properly transposed into national law). They were, however, mixed up with claims which – as Kelly J. found – unarguably challenged the validity of a planning permission and in respect of which any application for leave could only have been moved on notice. It was not for nothing that Kelly J. remarked that the procedures which had followed to date were “incomprehensible” and had created a “procedural tangle of monumental proportions.”
34. Faced with these difficulties, counsel for the applicant submitted that the offending order might be severed, so that only that part of the order which referred granted relief ex parte instead of on notice might be adjudged to be bad. But Kelly J. would not allow this to be done: