APPROVED [2021] IEHC 712
THE HIGH COURT
JUDICIAL REVIEW
2020 No. 521 J.R.
BETWEEN
FIONA ROCHE
APPLICANT
AND
TEACHING COUNCIL OF IRELAND
RESPONDENT
JUDGMENT of Mr. Justice Garrett Simons delivered on 25 November 2021
INTRODUCTION
1. This judgment is delivered in respect of an application for leave to apply for
judicial review. The application for leave had initially been moved on an ex
parte basis on 27 July 2020. On that date, the High Court (Meenan J.) directed
that the application for leave be made on notice to the respondent. The inter
partes application for leave ultimately came on for hearing before me on
4 November 2021. Judgment was reserved until today’s date.
2. The application for leave was opposed, principally, on the basis that the
proceedings had been instituted outside the three month time-limit prescribed
under Order 84, rule 21 of the Rules of the Superior Courts, and that the criteria
for an extension of time are not met.
NO REDACTION REQUIRED
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PROCEDURAL HISTORY
3. The applicant is currently registered with the Teaching Council through what is
described as the further education route, and such registration remains in place.
The applicant has since applied to be registered as a qualified teacher at post-
primary level in the following subjects: Civic Social and Political Education
(“CSPE”) and Religious Education. In these judicial review proceedings, the
applicant seeks to challenge the Teaching Council’s refusal to register her on
this basis.
4. The proceedings are taken against two related decisions: a first instance decision
of the Qualifications Panel of the Teaching Council, and a subsequent decision
by the Registration Review Group affirming the first instance decision.
5. The applicant has been provided with an extract of the minutes of the relevant
meeting of the Qualifications Panel, which set out in detail the rationale for the
first instance decision. The reason for refusal was summarised as follows:
“The reason for the refusal was the significant shortfall in Ms
Roche’s qualifications taking into account her experience
and lifelong learning, consistent with the views of the
Advisors. This includes the following:
Initial Teacher Education
The education qualification completed by Ms Roche in 2017
(Higher Diploma in Further Education) focuses on adult and
further education. This course does not cover post primary
age range of 12 – 18. It was noted that the Advisor
acknowledged relevant areas of study that were undertaken
in this course, but generally apart from the two areas of
Psychology and Sociology modules, the key studies in
pedagogy relevant to teaching in a post-primary school were
not evidenced. It was noted that the Initial Teacher
Education in the Post Primary sector has a different focus,
with a clearly defined and different target group of learners.
Ms Roche’s experience in a post primary setting was also
taken into account. It was noted that her experience was
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predominantly in the area of guidance counselling. It was
decided that Ms Roche’s experience did not adequately
bridge the gap in the initial teacher education qualification
requirements for post primary teaching and her qualification
was not of an equivalent standard.
Curricular subject
With respect to CSPE, the Panel noted the Teaching
Council’s Registration Curricular Subject Requirements
document (2017) and the requirements outlined in that
document for the subject of CSPE. […]
The Panel noted the view of the Advisor that the qualifying
BA degree only carried a total of 13.5 credits specific to
CSPE and that there is a shortfall of 46.5 credits when
assessed against the Curricular Subject Requirements
document.
It was also noted that the Advisor found that many of the
modules completed by the applicant are not CSPE modules,
and therefore the qualification does not appear to provide a
basic understanding of the broader foundations of CSPE.
The Panel also noted Ms Roche has some experience in
teaching CSPE, but decided that this did not make up the
deficits and that there was still a significant shortfall such
that Ms Roche’s qualification was not of an equivalent
standard.”
6. The applicant had also been provided with the reports of the advisors referred to
above. An assessment carried out on 9 April 2019 contains the following general
summary:
“Fiona has acquired a good range of qualifications, both
undergraduate and postgraduate: these provide her with a
solid foundation for working in the Further Education Sector.
Pedagogy relevant to teaching in the Post Primary sector was
not an element in any of the courses undertaken, as
evidenced in the module descriptors provided. Andragogy
and pedagogy are not interchangeable. To maintain
standards in teaching in the Post Primary sector, it is
necessary that the specific, relevant Initial Teacher
Education qualification be attained.”
7. The Registration Review Group expressly concurred with, and adopted, the
rationale of the Qualifications Panel.
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8. The Registration Review Group’s decision was notified to the applicant by way
of letter dated 4 June 2019. A number of weeks thereafter, solicitors acting on
behalf of the applicant wrote to the Teaching Council on 18 June 2019, and
stated that their client intended to apply to the High Court for a judicial review
of the decision. In the event, however, the intimated judicial review proceedings
were not instituted until 27 July 2020, that is, some thirteen months subsequent
to the date of the impugned decision.
9. In the intervening period, the applicant had made a request to the Teaching
Council for the disclosure of records pursuant to Article 15 of the General Data
Protection Regulation (EU) 2016/679 (“the data access request”). The data
access request was made on 26 August 2019, that is some nine days prior to the
expiration of the three month time-limit prescribed for judicial review
proceedings.
10. The data access request was ultimately responded to on 4 November 2019,
following a series of what might be described as “holding letters” on behalf of
the Teaching Council.
11. On the same date as the data access request was made (26 August 2019), the
solicitors acting on behalf of the applicant wrote a second letter to the Teaching
Council. The following passage is of relevance to the time-limit issue:
“As this is a matter of considerable urgency to our client, we
look forward to hearing from you by return. We refer to our
previous correspondence wherein we advised that our client
would seek to have the decision of the Teaching Council
judicially reviewed. We wish to advise that Counsel, both
Senior and Junior, are currently on vacation and as a result
we are not in a position to comply with the time requirements
imposed by the Superior Court rules. In the circumstances
we now wish to formally advise that depending on the replies
to the within queries it may well be that it will be necessary
for us to apply for an extension of time to seek leave to bring
a Judicial Review application. In the event that you are of
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the opinion that the Teaching Council will be in any way
prejudiced by our proposed course of action please so advise
by return.”
12. This letter was replied to on behalf of the Teaching Council by its solicitors on
10 September 2019. The letter seeks to characterise the letter of 26 August 2019
as an attempt to avoid or circumvent the time-limits for the institution of judicial
review proceedings. It was further stated in reply that it is not permissible,
months after the relevant events, to purport to raise queries in respect of matters
that are obvious from earlier correspondence.
13. The letter on behalf of the Teaching Council concludes as follows:
“Please note that any judicial review proceedings will be
fully contested as will any application to extend time for such
proceedings. The Teaching Council, like any other public
body, is entitled to proceed on the basis that its decisions and
proceedings are lawful and, if not challenged within the
relevant time period, no longer subject to review. It is quite
clear that your client, having decided to institute judicial
review proceedings in June of this year, took no meaningful
steps to pursue that course.”
14. Further correspondence ensued between the parties. The applicant’s solicitors
again stated, in a letter dated 22 November 2019, that their client intended to
institute legal proceedings against the Teaching Council.
15. These judicial review proceedings were ultimately instituted by way of an ex
parte application for leave on 27 July 2020. The High Court (Meenan J.)
directed that the application for leave be made on notice to the respondent. A
stay was imposed upon the Teaching Council’s decision. The inter partes
application for leave ultimately came on for hearing before me on 4 November
2021. Judgment was reserved until today’s date.
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CHRONOLOGY
16. The chronology of key events is summarised in tabular form below:
23 April 2019 First instance decision notified
4 June 2019 Appeal decision notified
18 June 2019 Applicant’s solicitors letter notifying intention to
apply for judicial review
26 August 2019 Data access request under Article 15, GDPR
26 August 2019 Applicant’s solicitors letter
20 November 2019 Substantive response to data access request
22 November 2019 Objection raised to redactions in data
6 December 2019 Response to objection re: redactions
27 July 2020 Application for leave to apply for judicial review
moved ex parte
23 October 2020 Notice of motion seeking leave to apply for
judicial review
4 November 2021 Hearing of leave application
ORDER 84, RULE 21
17. The three month time-limit prescribed for judicial review proceedings assumes
a particular significance in cases, such as the present, where an applicant seeks
an order staying or suspending the effect of an administrative decision pending
the determination of the judicial review proceedings. The entitlement of those
public authorities who are given statutory power to conduct specified types of
legally binding decision-making or action-taking is an important part of the
structure of a legal order based on the rule of law (Okunade v. Minister for
Justice Equality and Law Reform [2012] IESC 49; [2012] 3 I.R. 152 (at
paragraph 92)). Whereas there is a right to question the validity of such
decisions by way of judicial review, any such proceedings should normally be
brought within the three months allowed. It would be contrary to the public
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interest in good administration to allow stale claims to be brought, more than a
year after the event, in the absence of good and sufficient reason.
18. Order 84, rule 21(3) and (4) confer discretion on the High Court to extend time
as follows:
“(3) Notwithstanding sub-rule (1), the Court may, on an
application for that purpose, extend the period within which
an application for leave to apply for judicial review may be
made, but the Court shall only extend such period if it is
satisfied that:
(a) there is good and sufficient reason for doing so, and
(b) the circumstances that resulted in the failure to make
the application for leave within the period mentioned
in sub-rule (1) either:
(i) were outside the control of, or
(ii) could not reasonably have been anticipated by
the applicant for such extension.
(4) In considering whether good and sufficient reason exists for
the purposes of sub-rule (3), the court may have regard to the
effect which an extension of the period referred to in that
sub-rule might have on a respondent or third party.”
19. The obligations to be complied with by an applicant who seeks an extension of
time are prescribed under Order 84, rule 21(5). This rule provides that an
application for an extension of time shall be grounded upon an affidavit sworn
by or on behalf of the applicant which shall set out the reasons for the applicant’s
failure to make the application for leave within the period prescribed, and shall
verify any facts relied on in support of those reasons.
20. The Supreme Court in M. O’S. v. Residential Institutions Redress Board
[2018] IESC 61; [2019] 1 I.L.R.M. 149 (“M. O’S.”) has confirmed that an
applicant, who does not apply for leave to issue judicial review within the time
specified, is required to furnish good reasons which explain and objectively
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justify the failure to make the application within the time-limit, and which would
justify an extension of time up to the date of institution of the proceedings.
21. The majority judgment in M. O’S. (at paragraph 60 thereof) contains the
following statement of general principle as to the exercise of the court’s
discretion:
“I have concluded that the case law cited above, insofar as it
applies to the extension of the time specified under Ord.84
for the bringing of judicial review proceedings, makes clear
that the jurisdiction which the court is to exercise on an
application to extend time is a discretionary jurisdiction
which must be exercised in accordance with the relevant
principles in the interests of justice. It clearly requires an
applicant to satisfy the court of the reasons for which the
application was not brought both within the time specified in
the rule and also during any subsequent period up to the date
upon which the application for leave was brought. It also
requires the court to consider whether the reasons proffered
by an applicant objectively explain and justify the failure to
apply within the time specified and any subsequent period
prior to the application and are sufficient to justify the court
exercising its discretion to extend time. The inclusion of
sub-rule (4) indicates expressly that the court may have
regard to the impact of an extension of time on any
respondent or notice party. The case law makes clear that
the court must also have regard to all the relevant facts and
circumstances, which include the decision sought to be
challenged, the nature of the claim made that it is invalid or
unlawful and any relevant facts and circumstances pertaining
to the parties, and must ultimately determine in accordance
with the interests of justice whether or not the extension
should be granted. The decision may require the court to
balance rights of an applicant with those of a respondent or
notice party. The judgments cited do not, in my view, admit
of a bright line principle which precludes a court taking into
account a relevant change in the jurisprudence of the courts
when deciding whether an applicant has established a good
and sufficient reason for an extension of time. Further, the
judgments cited above do not envisage any absolute rule in
relation to what may or may not be taken into account or
constitute a good reason or a good and sufficient reason. The
court, in an application for an extension of time, is exercising
a discretionary jurisdiction and in the words of Denham J. in
De Roiste, ‘[t]here are no absolutes in the exercise of a
discretion. An absolute rule is the antithesis of discretion.
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The exercise of a discretion is the balancing of factors – a
judgement.’”
22. I turn next to apply these principles to the circumstances of the present
proceedings.
DISCUSSION AND DECISION
23. The application for an extension of time is advanced by reference to four factors.
For ease of exposition, I propose to address each of these in turn under separate
headings below.
(a). Data access request / GDPR
24. The applicant contends that it had been necessary for her to obtain
documentation from the Teaching Council, by way of a data access request
pursuant to the General Data Protection Regulation, prior to the institution of
these judicial review proceedings. An attempt is then made to criticise the
Teaching Council for alleged delay on its part in complying with the request.
25. I am satisfied that the applicant’s decision to await the outcome of a data access
request does not justify the grant of an extension of time. First, the applicant did
not require sight of the historic documentation held by the Teaching Council in
order to formulate her grounds of judicial review. The legal challenge related to
the decision not to recognise the applicant’s qualifications in an alternative route
to the route through which she had already been registered. The applicant had
been provided with a detailed minute of the Qualifications Panel’s decision and
with copies of the advisor’s reports. See paragraphs 5 and 6 above.
26. The Qualifications Panel’s reasoning was expressly concurred with, and adopted
by, the Registration Review Group in their letter of 4 June 2019. Moreover, this
letter expressly addresses, inter alia, one of the principal grounds since raised in
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the judicial review proceedings, namely that the applicant should not be subject
to the Teaching Council (Registration) Regulations 2016 (S.I. No. 444 of 2016).
27. The applicant was thus fully armed with all relevant documentation necessary to
formulate an application for judicial review as of 4 June 2019.
28. More generally, a person who intends to pursue judicial review proceedings is
expected to do so within the time-limit prescribed, and is not entitled to delay
instituting the judicial review proceedings while they assemble each and every
piece of documentation which they think might have a possible bearing on the
proceedings. The correct approach is to institute the proceedings within time,
and, if necessary, to put any additional documentation, which is obtained
subsequently, before the court by way of a supplemental affidavit.
29. Secondly, and in any event, the applicant was guilty of unreasonable delay both
before and after the making of the data access request. The request was not
submitted to the Teaching Council until 26 August 2019, that is just shy of the
expiration of the three month time-limit. This was so notwithstanding that the
applicant, through her solicitors, had indicated an intention to apply for judicial
review as early as 19 June 2019. The applicant had not been entitled to wait
until the three month time-limit had almost expired before making the request.
30. The data access request was complied with on 4 November 2019. There was
then a further period of culpable delay on the part of the applicant of some nine
months. The judicial review proceedings were not instituted until 27 July 2020.
(b). Applicant’s health
31. The applicant has sought to rely on her own ill-health as an explanation for the
delay in the institution of the proceedings. The court has, of course, sympathy
for the applicant, and appreciates that the impugned decision may well have
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caused her stress and anxiety. However, there is nothing in the affidavit evidence
put before the court which suggests that the applicant’s health would have
precluded her from instituting judicial review proceedings promptly. As
correctly observed by counsel on behalf of the Teaching Council in his
submission to the court, most of the health-related issues relied upon by the
applicant in her affidavit do not coincide with the relevant time period. For
example, the applicant describes in some detail the stress and anxiety which she
suffered following the publication of media reports of her initial ex parte
application for leave to apply for judicial review on 27 July 2020. By definition,
events which occurred subsequent to the institution of the proceedings cannot be
relevant to the assessment of pre-commencement delay. It is the period between
4 June 2019 and 27 July 2020 which falls to be considered in the context of the
issue of delay.
32. Similarly, the medical treatment referred to on affidavit, and in respect of which
certain documentation has been exhibited, relates to a period other than the
relevant time period. The treatment referred to was received during the period
October 2017 to January 2018. The only other medical document exhibited is
in respect of a dermatological condition.
33. It is also a fact that the applicant had been able to instruct a solicitor, within a
matter of weeks of the decision of 4 June 2019, to write to the Teaching Council
and expressly state that the applicant intended to apply to the High Court for a
judicial review of the decision.
(c). Availability of counsel
34. The applicant seeks to attribute much of the initial delay to the supposed non-
availability of counsel. The applicant has averred on affidavit that she
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“understands” that there is a convention in legal practice not to issue new
instructions during the months of August and September, and to pause litigation
until the new legal term resumes in October. Presumably, the applicant’s
understanding is this regard is premised on something said to her by her solicitor.
Certainly, the content of the solicitor’s letter of 26 August 2019 is indicative of
an understanding on his part that the non-availability of counsel is a good and
sufficient reason for an extension of time.
35. With respect, the understanding of neither the applicant nor her solicitor is
correct. There is no convention to the effect that the obligation to comply with
the three month time-limit under Order 84, rule 21 is suspended during the
summer months. Nor is it correct, as a matter of fact, to suggest that counsel
generally are not available during this period. Whereas a number of individual
barristers may be away on annual leave on any particular week during August or
September, there is always a cohort of barristers available. Similarly, the judges
of the High Court continue to work during this period, writing judgments in cases
which have been heard and preparing for upcoming hearings. Relevantly, there
are always judges available during the summer recess to hear applications for
leave to apply for judicial review. Indeed, such applications form a staple part
of the duty judge’s list.
36. Whereas the issues raised in the judicial review proceedings are, obviously, of
great importance to the applicant personally, the grounds of challenge are not
legally complex. There are numerous barristers who practice in the area of
public law, any one of whom would have been competent to advise the applicant,
and, if so instructed, to draft an application for judicial review. The fact, if fact
it be, that the individual barristers whom the applicant’s solicitor might normally
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have considered briefing were unavailable during August and September does
not represent a good and sufficient reason for failing to comply with the three
month time-limit.
37. It should also be observed that even if the lapse of time in August and September
could be overlooked (which it cannot), it represents only a small proportion of
the overall delay. The impugned decision had been notified to the applicant on
4 June 2019. There is no explanation for the delay between that date and 31 July
2019. Moreover, it is apparent from the applicant’s supplemental affidavit that
counsel was not, in fact, instructed promptly upon the commencement of the new
legal term in October 2019. Rather, there was a further delay of some four to
five months, with counsel eventually being retained in February 2020. (It should
be explained that the counsel who was retained is not the same barrister who had
been approached in August 2019).
(d). Public health measures and court sittings
38. The applicant has sought to attribute part of the delay in the institution of these
proceedings to the public health measures introduced in mid-March 2020 in
response to the coronavirus pandemic. It is submitted that an application for
leave to apply for judicial review could only have been properly made from mid-
July 2020 onwards.
39. With respect, there is no factual basis for the applicant’s submission in this
regard. It is a matter of public record that the High Court continued to sit
throughout the various iterations of the so-called “lockdown” introduced as part
of the response to the coronavirus pandemic. Throughout the month of March
2020, there were a number of judges available each day in the Four Courts to
hear applications including, inter alia, urgent judicial review applications.
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Public notices to this effect were published by the Courts Service at the time.
Thereafter, from the end of April 2020 onwards, proceedings in the judicial
review list were capable of being heard by way of remote hearing, using an
online platform.
40. It is simply incorrect, therefore, to suggest that the applicant was precluded from
making an application for leave to apply for judicial review until July 2020.
Certainly, there is no evidence that the applicant’s solicitor made any attempt to
contact the Central Office of the High Court with a view to having the
application listed for hearing. Tellingly, the pleadings and affidavits necessary
to make such an application were not, in fact, finalised until 23 July 2020. This
is not a case where a putative applicant had been primed to move an application
for leave earlier, but had been prevented from doing so.
41. At all events, the application for judicial review was already hopelessly out of
time as of mid-March 2020, i.e. the date upon which the public health restrictions
were first introduced.
42. For completeness, it should be noted that the High Court has refused an
extension of time in similar cases where an applicant has sought to justify delay
by reference to the existence of restrictions introduced in response to the
coronavirus pandemic: H. v. Director of Public Prosecutions [2021] IEHC 215
(prison visits) and Director of Public Prosecutions v. Tyndall [2021] IEHC 283
(court sittings).
CONCLUSION AND FORM OF ORDER
43. The application for judicial review has been brought well outside the three month
time-limit prescribed under Order 84, rule 21. None of the four factors relied
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upon by the applicant represent a good and sufficient reason for an extension of
time. Moreover, none of these factors were outside the control of the applicant
and her legal advisers. The legal issues arising on the statement of grounds are
not especially complex, and there should have been no difficulty in preparing the
pleadings and verifying affidavit within the three months allowed.
44. This is not a case, therefore, where an extension of time is appropriate.
Accordingly, the application for leave to apply for judicial review is refused.
45. These proceedings will be listed before me on 2 December 2021 at 10.30 am to
address the issue of costs.
Appearances
James Lawless for the applicant instructed by Burns Nowlan
Remy Farrell, SC and Conor Feeney for the respondent instructed by Fieldfisher