The High Court has refused Alan Harte’s challenge to the legality of rules requiring applications for leave to seek judicial review to be brought within three months, subject to a possible extension by the court.
In a judgment delivered on 17 April 2023, Ms Justice Niamh Hyland held that the three-month time limit and the provision allowing an extension for “good and sufficient reason” were within the Superior Court Rules Committee’s powers to regulate court practice and procedure. She also rejected Harte’s arguments that the rules unlawfully restricted access to the courts and that the statutory delegation of rule-making powers was unconstitutional.
The challenge concerned S.I. 691/2011, which amended Order 84, rule 21 of the Rules of the Superior Courts. Harte argued that setting time limits for judicial review was a legislative function that could not be delegated to the Rules Committee. The respondents said the provisions were procedural rules and that the court retained discretion to extend time.
Justice Hyland treated the court’s discretion to extend the deadline as central. She concluded that the rule did not create an absolute limitation period: a court could consider the circumstances of a particular case when deciding whether to extend time. That discretion, she held, meant the rule regulated procedure rather than making substantive law, and did not impermissibly restrict access to justice.
The judgment also considered the history of judicial review time limits in court rules, including earlier rules that allowed six months for some forms of relief. The judge said the 2011 change brought the period for those applications into line with the three-month period already applying to other judicial review relief. She considered the policy choice limited and found it did not have to be made by the Oireachtas alone.
The case followed an earlier judicial review application by Harte concerning his trial before the Special Criminal Court. In 2021, Mr Justice Garrett Barr refused leave to bring that application out of time, finding no good and sufficient reason to extend the deadline. Justice Hyland said that finding meant Harte did not have standing in the present case to challenge the additional conditions in Order 84, rule 21(3)(b). She therefore did not decide their legality.
The court refused all the relief sought. The judgment addresses the validity of the time-limit rules; it does not reopen or alter the earlier refusal of leave in Harte’s separate judicial review case.