The Court of Appeal has dismissed Alan Harte’s appeal against the refusal of his judicial review challenge to rules setting time limits for judicial review applications. It did so after deciding, as a preliminary issue, that the proceedings were moot. The court did not decide whether the challenged rules were lawful.
Harte had challenged the Rules of the Superior Courts (Judicial Review) 2011, including amendments setting a three-month period to apply for leave to seek judicial review and providing for extensions. His case concerned an earlier attempt to challenge the continued existence of the Special Criminal Court.
In separate proceedings, the High Court refused Harte’s requested relief in March 2021 because his application was out of time and an extension was not appropriate. He did not appeal that decision. The Supreme Court later upheld the continued existence of the Special Criminal Court in Dowdall v Director of Public Prosecutions [2022] IESC 36. Harte’s trial before that court had concluded with convictions in November 2021 and a 30-year prison sentence the following month; the judgment says his conviction and sentence were then under appeal.
Harte argued that the time limits had unlawfully restricted his access to the courts. He accepted that his earlier case was doomed to fail after Dowdall, but submitted that the alleged restriction itself remained a live issue. The respondents argued that no live dispute remained because the earlier proceedings were final, his trial had taken place, and the legal issue about the Special Criminal Court had been decided.
The Court of Appeal accepted that access to the courts can extend to pursuing a case likely to fail. It nevertheless found no practical consequence for Harte from deciding the rules challenge: his earlier case was final, he accepted he could not use the argument to challenge his conviction, and he acknowledged that no damages claim would arise because the earlier case was doomed to fail. The court said it expressed no view on whether the rules were unlawful.
The court then considered whether to hear the case despite mootness. It noted that the issue could be raised in a future case involving a live dispute, and that Harte had not argued for the court to exercise its discretion if it found the case moot. It concluded that the interests of justice did not warrant hearing the substantive issue. The appeal was dismissed on mootness grounds; the court made no ruling on the validity of the 2011 rules.