Judicial reviews have got a “bad rap” in recent debates surrounding delays to big infrastructure projects, the president of the High Court has said.
Mr David Justice Barniville said “very few” planning permissions were quashed by the courts on “pure technicalities”, adding that a significant proportion of cases in the list were actions brought by developers – often challenges to planning permission refusals.
“It’s really not as simple as to say there are lots of people bringing lots of judicial reviews of planning decisions and the courts are quashing them on purely technical grounds. They’re not. It’s a much more complex picture than that,” he said.
Mr Justice Barniville was speaking to The Irish Times in advance of the end of the legal term on Friday.
READ MORE
In a wide-ranging interview, he also addressed security concerns at the Four Courts arising from hostile litigants and doubts about meeting an April 2026 statutory deadline for the end of the High Court’s wardship system.
[ Two senior counsel nominated for appointment as High Court judgesOpens in new window ]
Earlier this month, the Government announced a plan to accelerate the building of vital infrastructure and housing, including proposals to limit legal challenges that delay projects.
Recent judicial review challenges to developments such as the Greater Dublin Drainage project and MetroLink project has prompted criticism from senior Government figures. (The former challenge has since been settled.)
In a judicial review, the High Court supervises lower courts, tribunals and other administrative bodies to ensure their decisions are reached properly, fairly and legally.
Noting the possibility of legal challenges against the Government’s plan, Mr Justice Barniville said he could not address the specifics of the proposals.
However, he said he believed judicial review has got a “bad rap” in recent commentary, and that there were “useful counterpoints” to the criticism that have added balance to what he described as an important debate.
We’ve tended to be a little bit too indulgent and tolerant. I think the time for that has absolutely stopped now and we should be much tougher on [hostile behaviour in court]
— Mr Justice Barniville
Addressing recent debate around judicial reviews, he said it was clear to see why the Government felt it needed to do something to speed up the delivery of infrastructure. On the other hand, he said, people are entitled to litigate issues, particularly if the issues directly affect them.
What is lost in the debate is the initiative the courts have shown in tackling the volume of planning-related cases, he said, including the establishment of a dedicated Planning and Environment court in December 2023.
All cases taken by litigants challenging grants of planning permission are dealt with by one of the court’s three dedicated judges, Mr Justice Richard Humphreys, Mr Justice David Holland and Ms Justice Emily Farrell. Mr Justice Barniville said he hopes to assign at least one more judge to the court next year when more High Court judges are appointed.
Mr Justice Humphreys, who manages the court’s list, has put in place streamlined procedures that allow the court to issue judgments much quicker than other divisions of the High Court, Mr Justice Barniville said.
“I’m not sure that sufficient credit is actually given to [the court’s judges] and given to the courts for how ... the courts have responded to the absolutely clear and understandable demand that these decisions – if they are to be challenged – that they should be dealt with very quickly in the courts,” he said.
Analyses show that the courts are to blame for a small proportion of overall holdup to infrastructure projects, he noted.
He also said that “the common good is already factored into the exercise of judicial discretion in these cases”.
Mr Justice Barniville also revealed that he has been calling for a greater Garda presence at the Four Courts, following what he said was a recent increase in hostile litigants attending court.
Recent instances of abusive conduct during court sittings means other litigants suffer delays in getting their cases heard, and frustrates the work of judges, registrars and other court staff, and ultimately frustrates access to justice, he said.
Many of these instances have centred on the busy chancery court, which deals with various types of emergency applications.
[ The Government is about to take on the judicial review industry. It needs to winOpens in new window ]
“That [conduct] is very often driven by a small number of organisers of groups of litigants in person who have taken to the airwaves online and have sought to organise things to happen,” the judge said.
“I think up to now, we have tended to be a bit too lenient on how we treat people; we’ve tended to be a little bit too indulgent and tolerant. I think, as far as I’m concerned anyway, the time for that has absolutely stopped now and we should be much tougher on that kind of behaviour [in court]. People shouldn’t be frustrated in terms of getting their cases on by this kind of carry on.”
A result of this rising hostility has been an uptick in threats to judicial security in the past two years, Mr Justice Barniville said. He cited one example where a judge was “jostled” by an organised group of lay litigants within the Four Courts complex.
Mr Justice Barniville stressed that judges are not immune from criticism – but personalised attacks, either online or offline, are not acceptable. “People are, as I say, entitled to criticise judgments ... they’re not entitled to disrespect the office of the court.”
Separately, Mr Justice Barniville said he “wouldn’t be surprised” if an April 2026 deadline for the end of the High Court’s wardship system is missed, with 1,602 wards of courts still on the court’s books.
Up to April 2023, the High Court could, based on medical evidence, step in as an individual’s decision maker when it was satisfied that the person lacked capacity to make important decisions, relating to their property, welfare and other affairs. Those individuals were deemed a ward of court.
People with dementia, acquired brain injuries or intellectual disabilities are among those in wardship.
The Assisted Decision-Making (Capacity) Act, which came into effect in 2023, mandates the phasing out of the wardship system by April 26th, 2026, replacing it with a new system with tiered decision-making offerings.
This means that all wards currently on the court’s books must be discharged from wardship by that date.
As of earlier this month, all 1,602 wards who are still on the court’s books are the subject of an ongoing discharge application.
The possibility that some of those individuals will object to their discharge means it is likely some will still be on the court’s books when the April deadline comes. These objections will take time to resolve, Mr Justice Barniville noted.
“The issue is going to be if somebody decides, ‘I’m really opposing coming out of wardship, I’m opposing this new legislative regime, I’m challenging it.’ And then you miss the deadline. I won’t say it’s inevitable but I wouldn’t be surprised if that happens.”
There is no provision in the Act for an extension to the deadline, he noted, and no indication as to what will happen if people remain within the wardship system when that date comes. “There’s a lacuna in the Act,” he said.
In response to queries, a spokesman for the Department of Equality said the discharge process and timeline “is being closely monitored”.
“The department is examining the issue with a view to ensuring the safe transition of all wards,” he said. “The Office of the Attorney General is providing legal advice in response to any queries arising.”
Mr Justice Barniville said he would welcome clarification from the Government on what is to happen if that situation arises.
“As things stand, we’re determined to do what we can do on our end to comply with the obligations of the court under the Act,” he said.
