HC 96

Commercial Planning & SID List

COMMERCIAL PLANNING & SID LIST

PRACTICE DIRECTION HC 96

 

I, Mary Irvine, President of the High Court, hereby issue the following practice direction in accordance with s. 11(12) and (13) of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020.

Practice Direction HC74 is revoked and the following is substituted with effect from 5th October, 2020.

 

1 - Commercial Planning & SID List 

  1. The Commercial Planning & SID (Strategic Infrastructure Development) List (“the List”) encompasses the following categories of cases:

a) judicial reviews relating to strategic infrastructure development or strategic housing development and

b) planning cases admitted to the Commercial List. 

  1. Section 2 of this Practice Direction relates to strategic infrastructure and housing cases and the remaining provisions apply to all cases in the List.
     
  2. Applications for entry of planning cases to the Commercial List must continue to be made to the Judge in charge of the Commercial List under O63A of the Rules of the Superior Courts, and in the event that the case is entered in the Commercial List, the initial directions hearing under O. 63A r. 4(5)(b) will be conducted by the judge in charge of the List designated by the President (“the List Judge”) who will make all further directions in the case.
     
  3. There will be a callover at 10.45 am each Thursday of cases for hearing over the following 2 weeks to ensure that all matters are in order.  Any developments likely to affect listings or their duration should be notified to the court as soon as possible.
     

2 - Strategic infrastructure and strategic housing development 

  1. All applications for leave to apply for judicial review in respect of permissions or decisions concerning strategic infrastructure development and strategic housing development must be made to the List Judge. They may not be made to any other judge unless so directed in a particular case by the President or the List Judge.
     
  2. The List Judge will sit at 10.30 am each Thursday during term to hear such applications.
     
  3. The applicant for such leave must lodge all the necessary papers in support of the application in a bound, indexed and paginated form with the Central Office marked “SID Application” not later than 4.00 pm on the preceding Tuesday and must comply with this Practice Direction regarding electronic delivery, by that time.  For ex parte applications applicants must physically lodge (a) a full book of pleadings (b) written legal submissions loose and separate from the book of pleadings (c) an ex parte docket with stamp duty paid.   
     
  4. Should leave be granted to the applicant to apply for judicial review the List Judge will give all necessary ancillary directions with a view to ensuring a fair just and expeditious hearing of the matter.
     
  5. The standard terms for the grant of leave which will apply in default of any order to the contrary will be as follows:

(i) Time extended without prejudice to any point that may be raised by the respondents/ notice parties, if an extension is sought and explained on affidavit

(ii) Leave to file an amended statement if such leave is sought, without prejudice to any point that may be raised by the respondents/ notice parties

(iii) Leave granted for the reliefs at (d) of the (amended) statement on the grounds at (e)

(iv) Notice of motion to be returnable for 10.30 on the Thursday in term that is 2 weeks after the date of grant of leave

(v) Service of papers within 7 days (and service of Notice of Motion within 7 days of perfection of the order)

(vi) In the case of State respondents/ notice parties, service to be on the CSSO on behalf of such parties

(vii)Costs reserved on condition that service is effected in accordance with the order.

  1. If leave has been decided upon, applicants may make arrangements directly with the List Judge's judicial assistant for the return of papers by lunchtime on the day following the day on which leave was granted.  In default of collecting papers by then, papers will be sent for shredding. 
     
  2. For the purposes of this Practice Direction strategic infrastructure development is development in respect of which a direct application is made for development consent to An Bord Pleanála.
     

3 - Submission of papers

  1. Electronic submission of papers: Copies of all statements of grounds/opposition and written legal submissions should be sent in electronic form, separately from the overall book of pleadings, in Word document format not PDF, to the court via the Judicial Assistant to the List Judge.   
  2. All email communications to the court must give the full name and record number of the case and state the document being submitted, in the title of the email, with spaces between each word/ number - preferably in the form (year) (space) number (space) JR (applicant) (space) v (space) (respondent) (space) (document submitted e.g. applicant’s submissions).   
     
  3. When submitting pleadings in word document format, practitioners should clear formatting as much as possible in Word.  Bold or underlining should be used rather than word "headings", as much as possible.  Word documents must be in a minimum of 12 point type. All emails should also be copied to the List Registrar.
     
  4. Physical submission of papers: To submit papers physically parties should not contact the judge's judicial assistant.  Parties must lodge such papers in the Central Office for the attention of the List Judge. 
     

4 - Statements of grounds 

  1. The statement of grounds must follow the headings / numbering used in the Rules of Court, Appendix T, form No. 13 as follows :

a) Applicant’s name: [Note this section must be headed (a) not (1), (i) etc., and so on]

b) Applicant’s address:

c) Applicant’s description:

d) Relief sought:

e) Grounds upon which such relief is sought:

f) Name and registered place of business of solicitors for Applicant:

  1. Section (e) should be divided into the following parts:

a)  If there are more than two pages of legal grounds, the first part should be headed “Core legal grounds” and should set out the summary grounds of challenge in the format specified in the appendix below. The legal grounds of challenge should be set out in numbered paragraphs, starting with 1.  The section on Core Legal Grounds may not exceed 2 pages.  A template example of the Core Legal Grounds section is at Appendix 1 which should be used with any necessary modifications.

b) The next part should be headed “Legal Grounds” if under 2 pages, or otherwise “Particulars of Legal Grounds” and the (particulars of) legal grounds of challenge should then be set out in numbered paragraphs, re-starting with 1.

c) The final part should be headed “Factual Grounds” and the relevant facts and matters relied on shall be set out in numbered paragraphs, re-starting with 1.

  1. Pleadings which claim an excessive number of reliefs and/or involve an excessive number of grounds may be held to be in breach of the duty to avoid waste of the court’s time.  Accordingly, statements of grounds should not normally claim relief that is in substance merely repetitive of the primary relief sought, and nor should grounds be pleaded as repetitive reformulations.
     
  2. Practitioners should have regard to the principle that duplicative relief is not normally granted, and that therefore, with limited exceptions, declarations are generally redundant if substantive relief by way of certiorari or mandamus is granted, and inappropriate if that substantive relief is refused. 
     
  3. An applicant may however in any case, in addition to substantive relief by way of certiorari or mandamus, seek as a sole declaratory relief “Such declaration(s) of the legal rights and/or legal position of the applicant and/or persons similarly situated as the court considers appropriate”, or a relief to the like effect. The precise terms of any such declaration sought can then be addressed by way of legal submissions within the confines of the legal grounds pleaded in the statement of grounds.
     

5 - Statements of opposition

  1. A statement of opposition does not need to be supported by an affidavit if it consists only of one or more of the following

a) a traverse of any or all of the matters alleged in the statement of grounds;

b) a legal plea arising from facts put forward by, or documents exhibited by, an applicant;

c) a legal plea arising from facts otherwise on the court record (such as an objection as to time arising from the date of filing of pleadings).

  1. A statement of opposition that contains a positive plea that is based on evidential matters not otherwise before the court must be supported by an affidavit.
     
  2. In giving effect to Order 84 rule 22(5), it is unnecessary for a statement of opposition to contain a denial of the allegations of fact or law in a statement of grounds individually, issue by issue or paragraph by paragraph, or to assert that the applicant is not entitled to relief or costs, or that the respondent(s)/ notice party(/ies) are entitled to costs. It is sufficient for a statement of opposition to contain only the following:

a) a statement that the allegations of fact and law in the statement of grounds are denied save (if applicable) that specified matters in the statement of grounds are admitted and/or that the applicant is put on strict proof of specified matters, and/or a statement that the matters of fact relied on by the applicant do not give rise to legal grounds for the relief claimed; and

b) a statement of any specific matters of fact or law positively relied on by the respondent(s)/ notice party(/ies), for example that specified facts or circumstances preclude the grant of relief, that the proceedings are out of time or are an impermissible collateral challenge to a specified previous unchallenged decision, or that relief should be refused due to failure by the applicant to disclose specified facts or matters when obtaining leave, by reason of a specified alternative remedy, or in the discretion of the court having regard to specified facts and circumstances.
 

6 - Pleadings generally 

  1. Statements of grounds and statements of opposition must state the names of any counsel who settled such documents.
     
  2. Where a pleading is delivered in breach of any deadline set by a relevant Practice Direction or a direction of the court, it shall be for the defaulting party to show why such party’s costs of that pleading should be included in any costs order, unless the court expressly so orders when allowing costs.
     
  3. Any pleading which has been amended shall, in accordance with Order 28 rule 9, Rules of the Superior Courts, be marked with the date of the order under which the same is amended, and the day on which such amendment is made, as follows:
    “Amended the …… day of …… pursuant to order of Mr. / Ms. Justice …… dated the day …… of ….…”  This formula should be inserted immediately below the title of the pleading, for example “Amended Statement of Grounds” followed by “Amended the ... day of ... etc.”
     

7 - Papers for hearings
 

  1. The statement of grounds should be the first document in any book of pleadings.
     
  2. Where the statement of grounds has been amended, the latest amendment shall be the first document in any such book. 
     
  3. By 11.00 am on the Wednesday of the week prior to any substantive hearing, the applicant shall ensure that all necessary papers are delivered to the court in both hard copy and soft copy (to the List Judge’s judicial assistant) as follows:

a) In hard copy –

(i) full book of pleadings
(ii) book of authorities

b) In soft copy –

(i) full book of pleadings
(iii) full book of authorities
(iv) separately - statement of grounds, statement of opposition, all written submissions in Word document format
 

  1. Generally a date will not be fixed until all such papers are delivered.  If a date has been fixed but such papers are not delivered by 11.00 am on the Wednesday of the preceding week, dates may be vacated and a new date will not be fixed until papers are so delivered.
     

8 - Remote Hearings

  1. All business of the list will be conducted remotely, except matters involving personal litigants or where it is demonstrated by a party seeking a physical hearing that the interests of justice so require.
     
  2. Practitioners joining remote hearings from home can be assured that the Court will give them some degree of latitude should connectivity issues or domestic interruptions arise.
     
  3. Unless otherwise directed, reserved judgments will be delivered by electronic publication on courts.ie.  Judgments will appear in the Legal Diary, for record purposes, as for publication on a given date but parties should not attend court either physically or remotely for that purpose.   
     
  4. Where a reserved judgment is issued remotely, an order for costs following the event will be made 7 days later (for the costs of the application if interlocutory and for the costs of the proceedings including all reserved costs) unless the losing party submits a written legal submission contending for some other order within that period.  On reading and considering that submission without an oral hearing, if the court considers that sufficient reason to depart from the default order has been made out on a prima facie basis it shall invite a written submission from the winning side before making a decision and if not, the default order for costs will thereupon be made on the basis that insufficient reason has been made out to displace it. 

 

9 - Transitional Provisions

  1. The provisions of this Practice Direction as to formats of pleadings and submissions do not apply to pleadings and submissions filed before Monday 5th October, 2020.  However parties are at liberty if they so wish to apply to re-format such previously filed pleadings in accordance with the Practice Direction but are not obliged to do so.  However in the absence of such application to amend, where a statement of grounds has been filed before Monday 5th October 2020, the applicant shall within 14 days of the commencement of this Practice Direction deliver to the court and copy to the other parties a summary statement for the information of the court setting out what the core grounds are, in a maximum of 2 pages, using the format along the lines of the Appendix with necessary modifications. 

 

APPENDIX – TEMPLATE SECTION (e) PART 1 OF STATEMENT OF GROUNDS

(Delete as applicable/ use any necessary modifications)
(Each ground should be in “ratio” format as if it was a point in a headnote)

 

PART 1 - CORE GROUNDS

  1. The (define the decision) (“the impugned decision”) is invalid in that it contravenes art. X of directive X by failing to (indicate broad heading of the infirmity), further particulars of which are set out in Part 2 below.
     
  2. The impugned decision is invalid in that it contravenes art. ss. X and Y of the .... Act ... by failing to (indicate broad heading of the infirmity), further particulars of which are set out in Part 2 below.
     
  3. The impugned decision is invalid in that it is (unreasonable/disproportionate etc.) insofar as it ..... (indicate broad heading of the administrative law infirmity), further particulars of which are set out in Part 2 below.
     
  4. The impugned decision is invalid in that it contravenes Article X of the Constitution by failing to (indicate broad heading of the infirmity), further particulars of which are set out in Part 2 below.
     
  5. The impugned decision is invalid in that it is incompatible with the State’s obligations under art X of the ECHR, a Convention provision for the purposes of s. 3 of the European Convention on Human Rights Act 2003, by failing to (indicate broad heading of the infirmity), further particulars of which are set out in Part 2 below.
     
  6. Regulation .... of the (name of instrument) (S.I. No. ....) is ultra vires in that it contravenes s. X of the .... Act by failing to (indicate broad heading of the infirmity), further particulars of which are set out in Part 2 below.
     
  7. Section .... of the .... Act.... is invalid in that it contravenes Article X of the Constitution by failing to (indicate broad heading of the infirmity), further particulars of which are set out in Part 2 below.
     
  8. Section .... of the .... Act.... is incompatible with the State’s obligations under art X of the ECHR, a Convention provision for the purposes of s. 5 of the European Convention on Human Rights Act 2003, by failing to (indicate broad heading of the infirmity), further particulars of which are set out in Part 2 below.

 

Signed: ______________
Mary Irvine
President of the High Court
11th September 2020

High court