1 | ARTHUR COX
Group Briefing
January 2016
ARTHUR COX - KEY CONTACTS
JOANELLE O’CLEIRIGH
PARTNER
+353 1 618 0402
[email protected]
LITIGATION AND DISPUTE RESOLUTION
Good Decision-Making for
Public Bodies
Guide 1: The basics
Every year the High Court deals with
hundreds of applications seeking
to challenge the decisions of public
bodies. A total of 835 applications
were made in 2014; 973 in 2013; and
998 in 2012. If you do not follow best
practice when making a decision that
affects the legal rights of others, you
risk a legal challenge to your decision
and becoming one of these statistics.
Our new series of Good DecisionMaking Guides highlight what is best
practice in decision-making and offer
simple and practical tips to reduce the
risk of challenge to your decisions.
ROBERTA GUIRY
ASSOCIATE
+353 1 618 0415
[email protected]
In this first Guide, we consider why
it is important for decision-makers
in public bodies to exercise care
when making decisions; the common
pitfalls in decision-making; and how
a decision of a public body might be
challenged.
»» be distressing for the person affected
by the decision, particularly if he or
she is put to the trouble and expense
of challenging the decision;
»» cause reputational damage to
the decision-making body and
undermine public confidence in
government as a whole; and
»» affect the decision-making body’s
ability to implement policy.
WHAT ARE THE COMMON PITFALLS IN DECISIONMAKING?
Common pitfalls in decision-making
include:
»» failing to follow legislative
requirements or relevant policies
and procedures;
»» failing to properly assess relevant
information;
»» making factual errors;
WHY IS IT IMPORTANT FOR PUBLIC BODIES TO
EXERCISE CARE WHEN MAKING DECISIONS?
Good decision-making is an essential
principle of good administration. If
public bodies do not follow best practice
when making decisions, this can:
This document contains a general summary of
developments and is not a complete or definitive
statement of the law. Specific legal advice should be
obtained where appropriate.
»» result in the decision being challenged,
which is costly and time-consuming
for the decision-making body;
»» failing to apply fair procedures; and
»» failing to give reasons.
WHAT IS ADMINISTRATIVE LAW?
In order to best understand the ways
in which decisions can be challenged,
we need to examine the differences
between administrative (public) and
private law.
2 | ARTHUR COX
LITIGATION AND DISPUTE RESOLUTION
GOOD DECISION-MAKING FOR PUBLIC BODIES
GUIDE 1: THE BASICS
Administrative or public law is the body
of law that governs public bodies in the
exercise of their public functions.
However, public bodies are not
governed exclusively by public law;
private law applies to public bodies in
certain situations.
Examples of bodies that may be
judicially reviewed include:
»» Government ministers or
departments;
»» Statutory bodies;
»» Local authorities;
»» Statutory tribunals;
EXAMPLE
If a Government department enters into
a contract with a stationery supplier,
the private law of contract governs the
relationship between the parties.
If the department puts the contract
for the supply of stationery out to
tender, any decision on the award
of the contract must comply with
administrative or public law.
Judicial review is a safeguard that applies
specifically to administrative or public law.
WHAT IS JUDICIAL REVIEW?
Judicial review is a procedure that allows
the High Court to review the manner in
which a public body exercising a public
law function made a decision. In judicial
review proceedings, the Court is mainly
concerned with the manner in which
the body made the decision, rather than
with the substance or the merits of the
decision. In this way, judicial review
differs from an appeal.
The Court will look at whether the
decision in question was one which the
body had power to make and whether
the body complied with the law and
the principles of fair procedures when
making the decision.
WHAT TYPES OF BODY MAY BE SUBJECT TO
JUDICIAL REVIEW?
Bodies exercising functions of a public law
nature may be subject to judicial review.
This includes what might be
regarded as typical public bodies (e.g.
Government departments), but also
private bodies discharging public
functions (e.g. regulatory bodies such
as The Medical Council).
»» Compensation tribunals;
»» Non-commercial semi-state bodies;
»» Licensing bodies;
»» Regulatory bodies;
»» The District and Circuit Courts (but
not the Superior Courts);
»» The DPP; and
»» Some sports associations.
EXAMPLE:
Bus Éireann operated the school
transport scheme. It entered
into contracts with contractors
who then hired bus drivers. The
contractors were required to
ensure that all drivers were vetted
with An Garda Síochána and to
notify Bus Éireann if any driver
had a criminal conviction.
Bus Éireann stopped a driver
from driving a school bus when it
discovered that he had two criminal
convictions. The driver sought to
challenge the decision. Bus Éireann
argued that its decision could not
be judicially reviewed as it was a
contractual matter.
»» there is a decision, act or
determination which affects some
legally enforceable right.
High Court: The decision could
be judicially reviewed. The Court
noted that (i) the national school
system consists of the public
provision of primary education;
(ii) transport to and from school
had been an entitlement for at least
two generations; (iii) the school
transport scheme was publicly
A funded;
finding that
a decision
of a particular
and (iv)
the functions
public
body
can
be
judicially
reviewed
of Bus Éireann were of statutory
does
not
necessarily
mean
that
the
origin. (Mac Uaid v Bus Éireann)
decision will be changed.
PUBLIC LAW DIMENSION
DECISION WILL AFFECT SOME LEGALLY
To figure out if there is a public
dimension to a decision, look at:
ENFORCEABLE RIGHT
WHAT TYPES OF DECISION CAN BE JUDICIALLY
REVIEWED?
In general, the High Court will only
entertain a judicial review application
where:
»» there is a public law dimension; and
»» the nature of the decision-maker;
»» the source of the decision-making
power; and
»» the nature of the particular decision.
The public law dimension may not
always be immediately obvious.
There must be a decision, act or
determination which affects some
legally enforceable right, or a right so
close to a legally enforceable right that
it is a probable next step that some legal
right will be infringed. Decisions may
have adverse implications for certain
persons, but that does not mean that
they affect their legal rights.
LITIGATION AND DISPUTE RESOLUTION
3 | ARTHUR COX
GOOD DECISION-MAKING FOR PUBLIC BODIES
GUIDE 1: THE BASICS
WHAT CAN HAPPEN IF A DECISION OF A PUBLIC
EXAMPLE:
BODY IS SUCCESSFULLY JUDICIALLY REVIEWED?
A dispute between Ryanair and a
trade union over pay and conditions
for ground handling agents resulted
in the setting up of an inquiry
under the Industrial Relations Act
1990. Two independent persons
were appointed to conduct the
inquiry and to prepare a report
for the minister. The inquiry
engaged an expert body to carry
out a comparative study of pay and
conditions. The report of the inquiry
made a number of findings of fact.
The High Court can make one or more
of the following orders:
Ryanair sought to challenge the
report by way of judicial review.
High Court: Ryanair could not
challenge the report by way of
judicial review. The report was a
mere fact finding report. Therefore
there was no ‘decision’ capable
of being judicially reviewed and
Ryanair’s legal rights had not
been affected by the report. The
Court said that the argument that
publication of the report might lead
to the imposition of some adverse
requirement on Ryanair was “entirely
Examples of decisions that may be
speculative” and could not be
judicially reviewed include:
described as a “probable consequence
next step”.on(Ryanair
v Flynn)
»»ordecisions
the provision
of
services;
»» the grant or refusal of planning
permission;
»» the grant or refusal of a licence;
»» the grant or refusal of asylum;
»» the refusal to hear a complaint;
»» decisions on the conduct of
investigations; and
»» Certiorari – an order cancelling the
decision. The High Court will not
re-make the decision; it will send the
matter back to the decision-maker
so that it can make the decision
properly. This is the most common
type of order made in judicial review
proceedings.
Fair procedures will be discussed in
Guide 3.
If you would like to be added to the
mailing list for all Guides in this series,
please click here.
»» Mandamus – an order directing the
decision-maker to do something, e.g.
to reconsider a decision.
»» Prohibition – an order prohibiting
the decision-maker from doing
something, e.g. making a decision
that it does not have power to make.
»» Declaration – an order declaring
what the law is.
»» Injunction – an order prohibiting
the decision-maker from doing
something or requiring them to do
something.
»» Damages – financial compensation
(only awarded in certain
circumstances).
WHAT ARE THE GENERAL PRINCIPLES OF GOOD
DECISION-MAKING?
If you are making a decision that might
affect the legal rights of others, you must:
i. have the power to make the decision.
ii. have regard to any relevant
factors and exclude any irrelevant
considerations.
iii. make a rational decision.
»» decisions taken on foot of policy
documents, guidance documents or
government circulars.
iv. comply with fair procedures and
any other legal or procedural
requirements.
In Guide 2, we will look at the first three
of these principles.
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