What Public/Private Divide? The Scope of Judicial Review in Ireland

I have been working on the “Scope of Judicial Review” chapter of Administrative Law in Ireland. There has been some controversy in recent times about the use of judicial review principles in a private law setting (see Varuhas and Lim & Chan). But in Ireland, as you will see from the extracts below, it is old hat….

In the leading case of Glover v BLN Ltd,[1] the Supreme Court held that the rules of audi alteram partem applied in the indisputably private law context of the dismissal of a company director. Walsh J. justified the application of these rules to the facts of this case on the basis that “the dictates of constitutional justice” require that “statutes, regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures”.[2]

This passage expresses the strong view that constitutional justice applied, notwithstanding the fact that a private law entity and function was involved. The other step—the one which is relevant here—seems, it is suggested, to have been assumed, namely that although judicial review proceedings were plainly not applicable just because the circumstances related to private law; it was decided that constitutional justice should apply and assumed to follow that constitutional justice had to be applied in plenary proceedings, a proposition that seems now to have gained widespread support:

“It is clear that if an allegation of misconduct, including professional misconduct, is made such as may lead to an adverse decision affecting the applicant’s professional reputation, exclusion from the Society or other more limited sanction, the Society must conduct its investigation and consideration of the allegation in accordance with fair procedures appropriate to the nature of the allegation and each stage of the process [notwithstanding that the relationship is private rather than public].”[4]

Of some note in that regard is the decision of Macken J. in Bolger v Osborne.[5] Mr Bolger, a well-known horse trainer, was fined £1,000 for a breach of racing rules, in respect of a horse that failed to perform to its full potential in a race at Naas: in the racing argot, it had failed to “run on its merits”. Initially, the penalty was imposed by the stewards, who interviewed the jockey, the plaintiff and a veterinary surgeon. On appeal to the Appeal Tribunal of the Turf Club, the stewards’ decision was upheld, the Tribunal having heard evidence from the plaintiff, the surgeon, another veterinary surgeon called by the plaintiff, a representative of the Stewards and others, including the owner and jockey of the winning horse. The plaintiff then commenced an action in the High Court, by way of plenary summons. The plaintiff proceeded in this way because at that time there was High Court authority to the effect that decisions of the Turf Club could not be challenged by way of judicial review.[6] The plaintiff’s primary arguments sounded were for breach of contract and negligence but he also sought declaratory relief to the effect that the Appeal Tribunal’s decision was irrational and unsupported by evidence.

Macken J. considered that it would be “wrong” to treat the case as an application for judicial review, but nonetheless held that the plaintiff could “argue that he is fully entitled to declaratory relief in respect of the decision of the Defendants, and to rely, in support of that contention, on any of the several cases which have been opened to this Court which are judicial review decisions simpliciter”.[7] In particular, the plaintiff was entitled to challenge the decision of the Appeal Tribunal on the basis that there was no evidence to support it.

For Macken J., the fundamental difficulty with the initial decision of the stewards and the decision of the Appeal Tribunal was that it restated the provision of the Rules that requires that horses run on their merits, without identifying any particular fault or responsibility on the part of the plaintiff. The theory of the stewards’ case (as it were), adopted by the Appeal Tribunal, was that the plaintiff, as a trainer, was strictly and/or vicariously liable for the failure of the horse to perform to its full potential (i.e. to run on its merits). But the Rules, properly construed, did not go so far as to impose strict or vicarious liability:

“There is no vicarious liability and no strict liability applicable. In the circumstances the Rules must be applied as in the case of Rules constituting any other contract, and insofar as there is any ambiguity in them, such ambiguity must be construed against the Defendants and in favour of the Plaintiff. It is equally the case that where the Rules give such power as fines, suspensions or losses of licences the Rules must be exercised strictly also from the Plaintiff’s point of view and in a manner which is not arbitrary.”[8]

In the absence of evidence to support the decision, it represented a breach of contract, was irrational and had been reached in violation of constitutional justice (given that the plaintiff was not able to put a full answer and reply). Macken J. also suggested, obiter, that the defendants were under an obligation to give reasons for their decision. By way of relief, Macken J. granted a declaration that the Appeal Tribunal’s decision was void, an order quashing the £1,000 fine, an order requiring repayment of the fine and an order for special damages to cover the costs of the appeal procedure.

The significance of this decision lies in Macken J.’s application of judicial review principles – of legality, rationality and procedural propriety – to a contractual relationship.[12] It foreshadowed by some 15 years the decision of the United Kingdom Supreme Court in Braganza v BP Shipping Ltd,[13] where it was held that the principles to be applied to exercises of contractual discretionary powers “were the same as those applied in public law cases, i.e. not only that the decision is made rationally and in good faith, but also that it is made consistently with its contractual purpose and, we add, that all relevant matters have been taken into account and irrelevant matters not taken into account”.[14] Viewed in the light of subsequent English developments, Macken J.’s approach in Bolger seems prescient.^[15]

Finally, an echo of this approach may also be found in a passing comment of O’Flaherty J. (with whom Blayney J. agreed) in Geoghegan v Institute of Chartered Accountants,[9] where the question was whether a disciplinary decision of the Institute was amenable to judicial review. While the Supreme Court was divided on this issue,[10] O’Flaherty J. doubted that judicial review would lie. However, he added, nonetheless that “if there were a departure from the principle of proportionality the decision would be subject to review by the courts”, meaning presumably review in plenary proceedings.[11]

^[1]    [1973] I.R. 388.

^[2]    [1973] I.R. 388 at 427.

[4] E.G. v The Society of Actuaries in Ireland [2017] IEHC 392, at para. 68.

[5] [2000] 1 ILRM 250.

[6] Murphy v The Turf Club [1989] IR 171. But see now O’Connell v The Turf Club [2015] IESC 57; [2017] 2 I.R. 43.

[7] [2000] 1 ILRM 250.

[8] [2000] 1 ILRM 250.

^[9]    [1995] 3 I.R. 86.

^[10]   Hamilton C.J. concurred in the result. Blayney J. agreed with O’Flaherty J., while Egan J. agreed with Denham J. See paras 17–50 to 17–51.

^[11]   [1995] 3 I.R. 86 at 120.

[12] See also Bowes v Motor Insurers’ Bureau of Ireland [1989] I.R. 225 Finlay C.J. said (at 228) that decisions of the Board (which is an extra-statutory body charged with the administering the agreement made between the insurance companies and the Minister for the Environment) “could only be reviewed by the courts … in accordance with the principles of judicial review”. This short passage would suggest that decisions of the Board under this agreement are governed by principles of public law and that, accordingly, such decisions of the Board can be challenged by way of judicial review. This suggestion was taken up by Carroll J. in her judgment in Hurley v Motor Insurers’ Bureau of Ireland [1993] I.L.R.M. 886 when she quashed a decision which she found to be unreasonable and irrational.

[13] [2015] UKSC 17; [2015] 1 WLR 1661.

[14] Evangelou v McNichol [2016] EWCA Civ 817, at para. 47, per Beatson L.J.

[15] It has been said that “[t]he substantive consequences of holding that a body is subject to judicial review may be…significant since it means at a minimum, that the body will be subject to the rules of fair procedures, and for example may be required to give reasons for its decisions”: O’Connell v The Turf Club [2015] IESC 57; [2017] 2 I.R. 43, at para. 71, per O’Donnell J. This conclusion seems too strong, in light of the discussion in the text.

This content has been updated on July 13, 2018 at 09:56.