The Supreme Court could consider whether to refuse Aftab Ahmed’s judicial review relief on discretionary grounds, even though the High Court judge had not ruled on those grounds, Chief Justice Keane said in a judgment delivered on 19 December 2003.
Ahmed had sought to prevent the Medical Council from holding an inquiry under Part V of the Medical Practitioners Act 1978. His central claim was that the Council’s failure to provide legal aid for the proposed inquiry would breach his rights to his good name and livelihood. He also sought declarations about whether the Act allowed the Council to provide legal representation or the means to obtain it, and whether the relevant provisions were unconstitutional. The Attorney General was joined as a notice party.
The High Court refused the requested relief, concluding that the Act did not empower the Council to provide legal aid and that Part V was not invalid under the Constitution. The judge said it was unnecessary to decide whether delay or other discretionary grounds would independently justify refusing relief.
The Council had argued that the case was brought too late, that Ahmed had delayed in bringing it, and that his failure to raise legal aid or representation in earlier judicial review proceedings barred the new case or made it an abuse of process. Those grounds had been raised in the Council’s opposition and fully argued at the High Court hearing.
On appeal, Ahmed objected to the Supreme Court considering those grounds, arguing that the High Court had not adjudicated on them and that the Council had not served a notice to vary. Keane said the Supreme Court’s role was appellate, but appeals were by way of rehearing and the court could consider pleaded issues that had been the subject of evidence or submissions below. Whether a party could renew arguments left undecided by the trial judge depended on the circumstances and the interests of justice.
Keane said it would be unjust and inefficient to send the case back to the High Court where the Council had raised and fully argued the discretionary grounds and the judge had found it unnecessary to decide them. He also concluded that a respondent did not need a notice to vary merely to argue that the High Court’s order should be upheld for different reasons. Such a notice was required when the respondent sought to have the order varied.
Keane said an earlier three-judge ruling in Hanratty v Drogheda Web Offset Printers, which had taken a contrary approach to notice to vary, was wrongly decided and should not be followed. He stated that he agreed with Hardiman J’s judgment and proposed order, but this text does not set out the order itself or the final disposition of the appeal.