The Supreme Court has stressed that parties in judicial review proceedings should state clearly and precisely the grounds and remedies they seek, and obtain an order before arguing additional grounds after leave has been granted.
Chief Justice Murray made the observations in a judgment delivered on 25 January 2011 in an appeal brought by A.P. against the Director of Public Prosecutions. He said he agreed with judgments by Denham J. and Fennelly J., and with the orders they proposed. He did not express a view on other matters mentioned during the appeal.
Murray said the procedural issue he addressed arose amid a number of appeals where there had been a lack of clarity or confusion about the precise issues before the High Court. He noted that judicial review applicants must first obtain leave from the High Court, which is granted on specified grounds when the legal criteria are met. In most cases, an applicant must show an arguable case on each ground; legislation sets a higher threshold for some classes of case.
He said applicants should set out each ground for relief and each remedy sought with precision. Broad, general grounds alleging deficiencies such as lack of legality, fairness or constitutionality can be unsatisfactory, particularly when they accompany more specific grounds. If a ground or remedy can be stated more clearly during a leave hearing, he said, the order granting leave should do so.
Murray also addressed new arguments raised when judicial review proceedings are heard on their merits. A trial court may permit arguments that extend beyond the grounds for which leave was granted or raise new grounds, depending on the circumstances, particularly where the respondents consent. In that situation, he said, the applicant should seek an order allowing the extended or new ground. Respondents objecting to an argument as outside the permitted grounds should raise the objection clearly at the hearing.
He said it was unsatisfactory for such objections to be raised for the first time on appeal when no express objection had been made at trial, or when there was disagreement about whether one had been made. The judgment’s concluding point was that parties should help the High Court and any appeal court by defining judicial review grounds precisely and seeking an appropriate order for additional grounds after leave.