Kavanagh v Healy: JR applicant doesn’t win case by default where respondent fails to file opposition papers on time

Judge_at_deskA judicial review applicant does not win their case by default if the respondent does not file opposition papers on time.  The High Court  has jurisdiction to extend the time to submit opposition papers–even after the deadline has passed. And, even in the absence of a filed defence, the High Court will not grant an order under judicial review proceedings unless the judge is satisfied that it is appropriate to grant the order sought.


Kavanagh applied for judicial review of a decision of a Social Welfare officer (Healy) not to allow him an oral hearing, before he had submitted his grounds of appeal in writing. The High Court granted him leave. When the motion came before the court, Kearns P adjourned proceedings to allow the Healy additional time to submit opposition papers. On the next date, Hedigan J adjourned proceedings again to allow Healy to serve the Statement of Opposition on Kavanagh, who had objected to both adjournments. He appealed that decision to the Supreme Court claiming, among other things, that he had won his case by default, as Healy failed to submit a defence on time.

In addition, Kavanagh applied for an injunction restraining Healy from  preventing him from signing on in the usual way and receiving jobseekers allowance, pending the outcome of proceedings. Charleton J refused that application. Kavanagh appealed that decision to the Supreme Court, also. He claimed that, as Healy’s decision was subject to judicial review proceedings, it should have the effect of freezing the process within the social welfare system.

Supreme Court

Clarke J (here) held that Order 122(7) of the Rules of the Superior Courts is clear in granting the courts the power to extend the time within which a respondent may submit opposition papers to a judicial review application [3.3]. In addition, Kavanagh misunderstood the nature of judicial review proceedings. There is a very low threshold for a grant of leave–an arguable case. Even in the absence of a defence, therefore, a hearing must be held, and the judge must be persuaded of the merits of the case [3.10]. And Kavanagh’s hearing was still in the High Court list.

In relation to the injunction, Clarke J held that Kavnagh misunderstood Order 84, rule 20.7 of the Rules of the Superior Courts, which states:

Where leave to apply for judicial review is granted then-

(a) if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders;

Kavanagh argued that where judicial review was granted it operated as a stay. Under the rules of statutory interpretation, though, the courts must assume that words are not unnecessarily included. And under Kavanagh’s interpretation of O 84, r 20.7, the words and the Court so directs would be unnecessary. Whereas those words mean that a grant of review only operates as a stay where the court so directs–in addition to granting leave.

Clarke J dismissed both appeals; MacMenamin and Laffoy JJ concurred.

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