knowledge 14 January 2026 |

Reform or Overhaul of Judicial Review? Insights on aspects of the General Scheme of the Civil Reform Bill

Part 3 of the General Scheme is to apply to all applications for judicial review with one exception. That exception is that for applications under Part 9 of the Planning and Development Act 2024 (as amended) (the “2024 Act”) for judicial review of decisions made under the 2024 Act (“2024 Act JRs”) certain parts of Part 3 of the Bill do not apply to 2024 Act JRs. Specifically, Head 10 (applications for leave to apply), Head 11 (the Court’s consideration of an application for leave to apply) and Head 12 (appeal of judicial review determination) do not apply to 2024 Act JRs.  This therefore envisages that going forward there will be two different “JR approaches”: the approach contemplated by the General Scheme applying to the majority of judicial review challenges and the approach already provided for by Part 9 of the 2024 Act, with Heads 8 and 9 of the General also applying to 2024 Act JRs, subject to a further carve out discussed below relating to 2024 Act JRs.

Head 8: The Bill, in Head 8(5), mandates that a Court shall not grant a remedy on foot of a judicial review, unless five significant hurdles are all, where relevant, overcome by an applicant, as follows:

• that the respondent has acted unlawfully,
• that the applicant has suffered harm or prejudice,
• any error of law, or procedural error, was material to the decision (and in considering this, the Court is required to take into account whether, in the absence of such an error, a different decision would have been made, which would have placed the applicant in a materially better position),
• that the interests of justice, taking into account the interests of the applicant and the public interest, require such a remedy to be granted, and
• the granting of the remedy provides a significant benefit to the applicant.

In an apparent effort to disincentivise the bringing of judicial review proceedings, costs may only be awarded to an applicant where the final decision of the court provides “a significant benefit to the applicant.”  No guidance is provided as to the meaning of this term, which is likely, if enacted as it stands (and commenced), to become the subject matter of significant debate and no doubt judicial consideration.

Head 8(8) confirms that the above rules in relation to costs, and the second and last hurdle mentioned above (i.e., that the Court must be satisfied that the applicant has suffered harm or prejudice and that the granting of the remedy provides a significant benefit to the applicant) does not apply to judicial review applications where section 286(2) of the 2024 Act applies.  Section 286(2) of the 2024 Act relates to a circumstances where the applicant is a company or incorporated undertaking that is taking judicial review proceedings under  Part 9 of the 2024 Act which relate to a development that is likely to have significant effects on the environment or on a European site, or to an act or omission by any person that contravenes a provision of the 2024 Act or an enactment under the 2024 Act relating to the environment.  Therefore, if enacted Head 8(8) confirms that companies and incorporated bodies bringing environmental challenges under the 2024 Act will not be required to demonstrate that they suffered harm or prejudice or that the granting of the remedy sought by it provides a significant benefit to it.

Head 9: In a proposed change to the current position whereby the High Court has exclusive jurisdiction to hear and determine judicial review proceedings, Head 9(1) of the General Scheme proposes that both the Circuit Court and the High Court will have concurrent jurisdiction to hear and determine proceedings under Part 3.  Head 9(2) goes on to list judicial review proceedings which must be initiated in the Circuit Court.  While decisions of public bodies specified in Schedule 2, and proceedings in relation to enactments specified in Schedule 2 are listed in Head 9(2), Schedule 2 is yet to be filled out.   Therefore this aspect of the Bill remains open to speculation. Head 9(3) confirms that judicial review proceedings that must be initiated in the Circuit Court, can be initiated in the High Court, where there are substantial grounds for contending that (a) the application involves a point of law of exceptional public importance, and (b) it is desirable, in the public interest, that it be heard in the High Court.  

Head 10: Head 10 outlines the various proposed rules in relation to applications for leave to apply for judicial review.  This “leave” stage no longer exists for judicial review proceedings under Part 9 of the 2024 Act.  Therefore, going forward, should Part 3 of the Bill be enacted as it stands (and commenced), there will be a significant divergence in procedure. On the one hand, no leave stage will exist for judicial review proceedings under Part 9 of the 2024 Act, and on the other hand all other applications for judicial review under Part 3 of the Bill must obtain leave. 

Currently under Order 84 Rule 20(5) of the Rules of the Superior Courts, the Court cannot grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates, and the Courts to date have been somewhat flexible in their approach to this sufficient interest test.  Under Head 10(2)(b) of the Bill an application for leave to apply for judicial review may only be sought by a person directly affected by the act which is the subject of the application and who has a sufficient interest in the matter.  While this apparent change has generated some media attention, we query in practice whether it will result in a more onerous hurdle for an applicant at the leave stage given that currently in order to satisfy the sufficient interest test, an applicant will usually demonstrate that they are directly affected by the act or decision in question.

Head 10(7) of the Bill creates an interesting limit on the Court’s ability to extend the duration for bringing judicial review proceedings. Currently the Court is not limited in the extension period it can order (where the Court is satisfied of certain matters). Once enacted and commenced, under Head 10(7) the Court will not be permitted to extend the period for bringing judicial review proceedings beyond 16 weeks from the date when grounds for the application first arose.

Head 11: Currently under Order 84 of the Rules of the Superior Courts, to be granted leave an applicant must show that there is an arguable case that they are entitled to the relief sought[1]. This burden is light – an applicant is simply required to establish that they have made out an arguable case in law.  The Court is not concerned with trying to ascertain whether the grounds put forward are strong or weak or what the eventual result will be.  

Under Head 11 of the General Scheme the criteria which are specified as to be satisfied for a Court to grant leave to apply for judicial review are effectively expanded by the addition of (a), (c) and (d) set out below:

1. the application is in accordance with the provisions set out in Head 10,
2. there are arguable grounds for contending: (i) in the case of a quashing order, that the impugned decision is invalid or otherwise ought to be quashed, (ii) in the case of remedies other than a quashing order, that such remedies should be granted, (iii) the granting of the remedy would provide a significant benefit to the applicant
3. the claim has a reasonable prospect of success, and
4. the issue is one appropriate for the court and not de minimis in nature.

Head 12, 13 & 14: Head 12 of the Bill relates to appeal of a determination of the Circuit Court or High Court of an application for leave to apply for judicial review or an application for judicial review, while Head 13 is entitled “Specialised Provisions” and includes a provision providing for specific time periods in , and introduction of conditions to applications for leave for, certain types of judicial review. Head 14 relates to an enquiry into the lawfulness of the detention of any person.

It is not clear when the Civil Reform Bill will be laid before the Oireachtas and begin its legislative journey towards enactment. The Heads of the General Scheme highlighted above will, no doubt, go through significant scrutiny and amendment. It is likely that proposals discussed in this briefing will be refined and developed significantly.  It also remains to be seen whether the Bill will deliver on the Government’s intent to reduce the level and scope of challenge that consents/approvals for large infrastructure projects face, or if it will create uncertainty and more issues than ever for judicial consideration.