David Healy (applicant) v Fingal County Council (respondent).

Judicial Review - Application for leave - Debt owed his applicant to respondent - Decision of respondent to without expenses entitlements as set off - Application to judicially review decision - Preliminary issues - Whether proper subject matter for judicial review - Delay - Discretion to extend time - Local Government (Dublin) Act 1993 (No 31) - Rules of the Superior Courts 1986 (SI No 15), Order 84 rule 21(1).

The High Court (Mr Justice Barr); judgment delivered 17 January 1997.

THERE must be a public dimension to justify having recourse to relief by way of judicial review and where a transaction is unrelated to the public interest an aggrieved party has a remedy in private law only.

The High Court so held in refusing the applicant leave to institute judicial review proceedings against the respondent in relation to its decision to withhold payment of his expenses by way of set off against monies owed by him to the respondent.

Gerard Hogan BL for the applicant, James O'Reilly SC and Dermot A Flanagan BL for the respondent.

MR JUSTICE BARR said that the applicant, an elected councillor, together with another councillor brought unsuccessful judicial review proceedings against Dublin County Council in 1992 and costs of £13,767.78 were awarded against them. When Fingal County Council was created in 1993 all debts owed to Dublin County Council by councillors were transferred to the new body. The applicant made no effort to discharge his indebtedness.

The applicant was notified by letter dated 24 August 1994 of the decision of the respondent to withhold the payment of his expenses until his indebtedness was discharged. All councillors are entitled to a sum of approximately £3,000 per annum in expenses payable monthly. To date a sum of over £7,000 of the applicant's expenses had been withheld and the applicant now wished to challenge the legality of the respondent's decision.

Mr Justice Barr said that there were two preliminary issues to be considered in relation the applicant's right to proceed by way of judicial review. The first concerned whether or not the issue was a matter which properly could be dealt with by way of judicial review or if the applicant had a remedy in private law only. Mr Justice Barr referred to the judgment of the then Chief Justice, Mr Justice Finlay, in Beirne v Commissioner of An Garda Siochana [1993] ILRM 1 which stated that where a transaction between a private person and a public body is private in nature and is unrelated to the public interest, or the exercise or non exercise of a public function, then the only remedy open to a party is in private law.

Considering the facts of the present case, Mr Justice Barr was satisfied that there was no public dimension involved in the set off decided on by the respondent. The requisite public element necessary to justify relief by way of judicial review was not present and therefore Mr Justice Barr was of the view that the option of judicial review was not open to the applicant.

Mr Justice Barr considered the issue of delay and said that the applicant was notified of the decision of the Council to withhold his expenses by way of set off on 24 August 1994. The applicant did not institute judicial review proceedings until February 1996. Order 84 rule 21(1) of the Rules of the Superior Courts provides that such applications should be made promptly. Mr Justice Barr felt in the absence of any satisfactory explanation for the delay he was not disposed to extend time for bringing the application and that on that ground also the application must fail.

Solicitors: Fionnuala Cawkhill & Associates (Dublin) for the applicant; Mary Grealy (Fingal County Council) for the respondent.