The High Court has allowed Dunmanus Bay Mussels Limited to amend its originating notice of motion so it can apply for leave to seek judicial review on notice to the relevant parties.
Mr Justice Hogan’s ruling concerns a procedural error in the company’s challenge to the Acquaculture Licences Appeals Board. It does not grant leave to pursue judicial review, quash the Board’s decision or address the merits of the licensing dispute.
The Minister for Agriculture, Food and Marine had granted the company a licence to cultivate mussels using longlines in part of the foreshore in Dunmanus Bay. After appeals by the notice parties, the Board refused the licence on 24 September 2012.
The company applied ex parte for judicial review leave on 19 November 2012, and leave was granted. Its motion was served on the Board and notice parties by 27 November, but it did not seek leave on notice as required by section 73(2) of the Fisheries (Amendment) Act 1997. That provision requires the leave application to be made on notice within three months of the decision.
After the Board’s solicitors raised the omission in a letter on 21 January 2013, the company applied to have the original ex parte order set aside. Mr Justice Kearns did so on 22 January. The company then filed the motion at issue on 21 February, seeking to amend its original motion to apply for leave on notice.
The company’s counsel acknowledged that the statutory requirement had been overlooked. The Board and notice parties argued that the failure was so serious that the proceedings were a nullity and could not be amended.
Mr Justice Hogan found that the parties had been notified of the proceedings within the three-month period and would have an opportunity to oppose any later application for leave. He concluded that allowing the amendment would substantially meet the statutory aims of timely notice and a chance to be heard. Refusing it would disproportionately interfere with the company’s constitutional right of access to the courts, he said.
The court therefore allowed the amendment under Order 28, rule 1 of the Rules of the Superior Courts. Any subsequent decision on whether to grant leave to apply for judicial review remains open.