Time Limits for Challenging Ongoing Administrative Actions and for Public Law Challenges Initiated by Plenary Action
The Supreme Court has considered what time limits should apply for public law challenges of administrative or quasi-judicial actions which have a continuing effect. It has also reaffirmed that addressing a public law challenge as a claim in tort does not affect the relevant time limits applicable to judicial review.
In Mungovan v Clare County Council,1 Clare County Council (the “Council”) maintained a register of persons it deemed suitably qualified water treatment engineers for planning purposes (the “Register”). Mr Mungovan applied to have his name entered on the Register several times but was refused on each occasion. Mr Mungovan eventually sought to challenge these refusals. He initiated proceedings in the High Court by way of plenary summons, claiming damages for tort, defamation and misfeasance in public office, and for public law declarations condemning the policy and the decisions. Mr Mungovan’s pleadings as such contained claims for judicial review mixed with claims for damages in tort.
At the time of initiating the proceedings, Mr Mungovan had exceeded the then six month time limit applicable to judicial review proceedings as set out in Order 84 rule 21 of the Rules of the Superior Courts (“Order 84”). Mr Mungovan sought to argue that what was involved in this action was tort law, immune from such time limits and subject only to the ordinary six-year limit for a non-personal injury claim.
High Court and Court of Appeal
In a modular High Court decision on the question of time limits, which was subsequently upheld by the Court of Appeal, Keane J held that the case, although taken by plenary summons and seeking declaratory relief and damages, was essentially one of public law and governed therefore by the time strictures of judicial review. Given that the plenary summons was issued more than six months after the Council’s last refusal to place Mr Mungovan on the Register, the court found that the delay in commencing the proceedings had resulted in the public law declarations sought in the pleadings, but only these, being time barred. Following on from that decision, the High Court struck out the damages claims in tort since no underlying illegality, on which those claims depended, could now be found.
The Supreme Court
The issue as to whether the claim was statute barred ultimately fell to be decided by the Supreme Court. On the issue of the applicable time limits, Charleton J agreed with the lower courts. Judicial review remedies may be taken by plenary summons, but the time limits are those set out in Order 84.
The court then considered whether the imposition of a six month time limit on Mr Mungovan’s challenge to the validity of the Register was appropriate in the circumstances. The court examined the policy reasons for placing time limits on the review of administrative actions. It viewed time limits as a means of resolving two competing aims in administrative law. On the one hand, it is desirable that administrative measures or decisions should not be made uncertain by allowing for endless unfettered legal challenges. However, a process must be in place to enable the removal of invalid but continuing measures. Time limits are a tool for resolving this tension by allowing for the challenge of potentially invalid decisions while ensuring legal certainty in the administrative framework facilitated by such decisions by requiring such challenges to be made in a timely fashion.
The court then dealt with the question of the applicability of time limits to the specific decision at hand. It drew a distinction between two different kinds of administrative decisions or measures and emphasised that courts must take a nuanced approach in determining whether a potential challenge should fail for delay. Decisions leading to an actual result, such as the grant of some permission or the refusal of some sought-for benefit, must be challenged straight away. In contrast, some decisions are not entirely particular to an individual but are made by reference to some policy or delegated legislation. The decision to be made may be whether the situation falls within the remit of the policy, or ensuring that the decision is consistent with the previous decisions made under the policy. The policy, or delegated legislation, in question is an instrument that continues in being following whatever decision is made, and the court stated that this continuing nature must be part of the analysis in deciding whether a time limit is applicable due to any failure to challenge a particular decision.
The court found that Mr Mungovan’s application involved a challenge to the latter type of administrative action, characterised as continuing measures. The court cited factors such as the fact that the Council's refusal to register Mr Mungovan on the first occasion did not remove his right to reapply, as it often does in the former category of individual administrative decisions. The court therefore found for Mr Mungovan on the time limit issue. However, the court noted that persons affected by ongoing administrative measures cannot wait indefinitely before making a challenge. The court will determine, based on the circumstances of the case, whether a person had reacted appropriately to an administrative decision.
This case confirms that initiating a judicial review as a tort claim does not remove applicable public law time limits. Challenges to administrative and quasi-judicial actions are on the same footing whether damages or any other remedy in tort or contract is claimed, and do not depend on the form of the action, whether under Order 84 or by plenary summons.
The case also demonstrates that, on the question of time limits, courts will analyse what is in reality, and in terms of practicality, the question under consideration; a decision taken on an individual basis or a policy equivalent to delegated legislation by which someone continues to be affected. In the latter case, not challenging does not necessarily remove the right to challenge where there genuinely is an ongoing policy or legislative base affecting an applicant. However persons disappointed by the outcomes of such polices should not sleep on their rights as they will not be afforded unlimited time in which to challenge decisions adverse to their interests.
The Disputes Group at McCann FitzGerald is available to answer any queries you may have in relation to this briefing. Alternatively, your usual contact at McCann FitzGerald would be pleased to provide further information.
Also contributed by Hugh Dromey.
-  IESC 17.
This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.
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