Applicant for judicial review must act `promptly', even if within time limit

Michael O'Connor, Liam O'Connor, Peadar Elmore, Bertie Adamson, George McCrum and Michael Morgan (applicants) v The Minister for the Marine and Alex McCarthy trading as Alex McCarthy Shellfish (respondents).

Judicial Review - Extension of time for bringing application for leave to apply for judicial review - Obligation to apply "promptly" - Applicants applying after six month time limit - Whether issue of delay can be raised after leave has been granted - Rules of the Superior Courts 1986, Order 84.

Licensing - Policy of Minister to consider applications for licences in chronological order in which they were made - Whether a duty to consider all applications lodged before licence granted - Whether Minister acting illegally or improperly.

The High Court (before Mr Justice Geoghegan); judgment delivered 6 October 1999.

THERE is a duty on an applicant for judicial review, not just to apply within the time limits stipulated in Order 84 of the Rules of the Superior Court 1986, but also to act "promptly". The applicants had failed to make their application within the deadline and there was no good reason for extending the time in circumstances where a substantial investment had been made on foot of the minister's decision and this was known to the applicants. Furthermore, there was no duty on the minister, in the absence of a requirement to invite tenders, to consider all of the applications for licences which had been lodged at the time the decision to grant a licence to the second respondent was made. His role was to consider each application as it was made.

Mr Justice Geoghegan so held in refusing to extend time for the bringing of an application for judicial review, and in indicating that he would in any event have refused the reliefs sought on the merits, and on discretionary grounds.

Patrick Gageby SC and Colm O Briain BL for the applicants; Roderick Murphy SC and Robert Barron BL for the first respondent; Daniel Herbert SC and Brendan Mulhall BL for the second respondent.

Mr Justice Geoghegan said that the application was for an order of certiorari quashing an aquaculture licence issued by the first respondent in favour of the second respondent on 3 August 1995 in respect of a particular part of Carlingford Lough.

The grounds upon which the applicants sought this order were: (1) That there was a public right of fishing for the area included in the licence and that those public rights had been exercised by some or all of the applicants. (2) That the applicants claimed that officers of the first respondent had explicitly represented to the applicant that no aquaculture licence could be granted as a matter of law to a body other than a co-operative within Carlingford Lough. However, the first respondent had afterwards granted an exclusive right of mussel cultivation and harvesting to the second respondent without informing the applicants that his policy had changed. This change of policy should have been effectively communicated to the applicants. (3) That it was an improper and ultra vires exercise of the statutory power of the first respondent to grant a licence to the second respondent at a time when an application for a licence by the applicants was already lodged without also considering the latter application. In other words, the Department of Marine's admitted policy of treating applications in a chronological manner was illegal.

Mr Justice Geoghegan said that the first respondent in his statement of opposition had denied that the applicants had exercised any alleged right of fishing in the licensed area prior to the grant of the licence, and claimed that even if they had done so, this was done without a licence. It was admitted that department officials had stated in February 1993 that an application for an aquaculture licence could only be made by a co-operative and the first respondent said that this was based on legal advice received by the minister at the time. The first respondent said that in February 1995 there was a change of advice to the effect that a private individual could apply for a licence over an area which was known as a public fishery if rights of public fishery had not been exercised in respect of that area within recent memory. The first respondent also admitted and fully defended the system of chronological dealing with applications for aquaculture licences. It was pointed out that the applicants, as such, had not lodged an objection to the granting of the licence, as they were entitled to do. Finally, the first respondent contested the applicants' entitlement to an extension of time for bringing the application. Mr Justice Geoghegan said that the second respondent had raised the issue of delay ahead of all other grounds in his statement of opposition. Leave to apply for judicial review was granted some eight and a half months after the granting of the licence. He had also raised essentially the same grounds as raised by the minister and, in addition, had referred to circumstances set out in affidavits used in other High Court proceedings brought by him which related to alleged interference with his aquaculture activities, to the delay in bringing the proceedings, and to the expenditure which had been incurred by the second respondent. He asked that the court should, in the circumstances, exercise its discretion to refuse certiorari.

Mr Justice Geoghegan said that the courts had been reluctant to adopt an over-strict application of the time limits set in Order 84 of the Rules of the Superior Courts. It was not often that an application was refused on the grounds of delay. However, this was a case where the delay point had been well and truly taken, and there were no good reasons for extending the time. Even after the applicants discovered the chronological system adopted by the department, the application had not been brought promptly. Mr Justice Geoghegan said that the only conceivable point in favour of extending the time was the assertion of pre-existing exercise of fishing rights. It might be argued that interference with those rights constituted interference with a right of livelihood to some extent. However, no such unconstitutional interference had been established in this case. It seemed inconceivable that there were any wild stock of mussels, and insofar as any aquaculture activities had been carried out by the applicants (which was doubtful), they had been carried out without a licence.

The statutory provisions effectively permitted interference with public fishery rights, and there was no attack on the constitutionality of any of those provisions. Mr Justice Geoghegan said that the most that the applicants might be able to argue would be that if there had been extensive fishing rights exercised in the particular area by the applicants, and first respondent had been aware of this, there might be an argument that it was an unconstitutional exercise of his power to grant a licence. However, none of the evidence suggested that any constitutional rights of the applicants to fish were in issue. Proper procedures had been followed, and the co-operative of which some of the applicants were members had lodged an objection. That objection had been duly considered. The second respondent had been happy to submit to those procedures, including the provision for appeal. He had been granted a licence and had then spent a very considerable sum of money investing in the project. The applicants were well aware of this expenditure, and at least some of them were fully aware of the aquaculture activities. Mr Justice Geoghegan said that in those circumstances, it was absolutely vital that any judicial review application be brought as promptly as possible. It would have been wrong even to wait for the six month period. As it was, the application had been brought outside that specified period, and there was no good reason for extending it.

Mr Justice Geoghegan said that an argument could be made that once Mr Justice Kelly granted leave, it must be assumed that he had extended the time. However, there was no express extension of time included in his order. Even if there was, or even if some implication of extension could be raised, it had always been understood to be the position that a respondent might raise a time issue. Otherwise, it would mean that a time issue would be dealt with finally at an ex parte application, and that could not be a fair procedure. Mr Justice Geoghegan said that he was satisfied that the respondents were entitled to raise the time point even if it was for renewed consideration, and he was refusing the application on the ground that it had not been brought sufficiently promptly.

Mr Justice Geoghegan said that in case the matter went further, and it was held that the application ought not to have been refused on grounds of delay, he would indicate his views on the merits of the application. Mr Justice Geoghegan said that he thought the application was without merit. No attack had been made on the constitutionality of any of the legislation, which allowed licences to be granted where there might be a public right of fishery. The only question which could then arise was whether the first respondent had exercised his power properly and constitutionally. While department officials had indicated that licences could not be granted to individuals, no estoppel arose against the department as a result of these informal conversations. For all the applicants knew, the second respondent might have had legal advice to the effect that he could not be refused simply because he was an individual, and might convince the first respondent of the correctness of this advice. If the applicants thought that, as a matter of law, the second respondent was not entitled to a licence, they should have lodged an objection or an appeal.

Mr Justice Geoghegan said that the argument pursued by counsel for the applicants that the granting of a licence to the second respondent without considering the application of the applicants already lodged was an improper exercise of powers was an attractive one. However, Mr Justice Geoghegan said that on reflection, the department's chronological policy was both reasonable and unobjectionable. It would be different if the statutory framework provided for some kind of tendering process and the first respondent had to adjudicate on the merits of different applications. However, the first respondent here had no role in considering the respective merits of different applications. He simply had to consider the application which was before him and if the applicant is a suitable person to be granted the licence and the area is a suitable area, he ought to grant it. The correct approach was to consider each application as it comes in, and if the first application proves acceptable, then that may necessarily prejudice any second application but that was not improper or illegal.

Finally, Mr Justice Geoghegan said that even if the chronological point had recommended itself to him, he would have to very seriously consider whether, as a matter of discretion, an order of certiorari should be granted, having regard to the very gross hardship which would be caused to the second respondent, who was in no way to blame for anything that had happened. On every ground, therefore, the application was refused.

Solicitors: McGuill & Co (Dundalk) for the applicants; Chief State Solicitor for the first respondent; Barry Hickey & Henderson (Carlingford) for the second respondent.