The Supreme Court has ruled that John James Mungovan’s challenge to Clare County Council’s wastewater engineer register was not barred by delay, and remitted the case to the High Court for a unitary trial.
In a judgment delivered on 24 April 2020, Mr Justice Peter Charleton said the case concerned both individual refusals and an underlying policy that continued to affect Mr Mungovan. The Court held that a continuing policy comparable to delegated legislation may remain open to challenge even after the deadline to challenge an earlier individual decision has passed. A challenge to the policy must still be brought promptly, and delay or acquiescence may count against it.
The council had operated a register of suitably qualified wastewater consultants from 2004. Mr Mungovan, an environmental engineering graduate, applied for inclusion and was refused. The judgment describes repeated applications and refusals between 2005 and 2011, including a request for reconsideration. He began proceedings by plenary summons in November 2011, seeking damages and public law declarations.
The High Court had earlier ruled that the public law challenge was out of time. The Court of Appeal upheld that conclusion on different grounds. The High Court later dismissed the remaining claims, reasoning that the tort claims depended on establishing underlying illegality that could no longer be litigated.
On appeal, the Supreme Court rejected the argument that the statutory planning time limits applied to Mr Mungovan’s effort to join the register. It also held that judicial review time limits apply to challenges to administrative decisions regardless of whether they are brought by judicial review or plenary summons. The decisive distinction, the Court said, was between a challenge to a particular decision and a challenge to a continuing policy that repeatedly affected the applicant.
The Court did not decide whether the council’s policy was valid, whether Mr Mungovan was unlawfully excluded, or whether the council committed misfeasance or defamation. It said the evidence about why he pursued repeated applications instead of challenging the policy, and whether delay or acquiescence should bar relief, must be assessed at trial. The judgment noted that the defamation claim appeared to have been abandoned at the appeal hearing.
The High Court must now determine the policy’s validity and its application to Mr Mungovan, his steps to assert his rights, any equitable bar, and whether any tort claim can succeed. The Supreme Court’s decision resolved the time issue only; it made no finding of liability or award of damages.