Communications Regulation and Digital Hub Development Agency (Amendment) Act 2023

Judicial review

112. (1) The validity of a decision made or an act done by the Commission (including by an authorised officer or adjudicator) in the performance of a function under Chapters 1 to 7 or Part 6 (whether such function is performed by way of powers conferred by or under this Act or otherwise) shall not be challenged other than—

(a) by way of an application for judicial review under Order 84 of the Rules of the Superior Courts ( S.I. No. 15 of 1986 ) (in this section referred to as “Order 84”), and in accordance with this section, or

(b) in accordance with a process provided for in the Principal Act or this Act by which the validity of such decision or act may be challenged.

(2) Notwithstanding section 104 , a person affected by, but not the subject of, a decision under section 90 or 91 may, not later than 14 days after the decision is published, apply to the Court by way of an application for judicial review under Order 84 and in accordance with this section.

(3) At any time after the bringing of an application for leave to apply for judicial review of any decision or other act to which subsection (1) applies and which relates to a matter for the time being before the Commission (including a matter before an adjudicator), the Commission may apply to the Court to stay the proceedings pending the making of a decision by the Commission (including a decision by an adjudicator) in relation to the matter concerned.

(4) On the making of an application to stay proceedings referred to in subsection (3), the Court may, where it considers that the matter before the Commission (including an adjudicator and an authorised officer) is within the jurisdiction of the Commission (including an adjudicator and an authorised officer), make an order staying the proceedings concerned on such terms as it thinks fit.

(5) Subject to subsection (6), an application for leave to apply for judicial review under Order 84 in respect of a decision or other act to which subsection (1) applies shall be made in respect of a decision made or an act done under Chapters 1 to 7 or Part 6 not later than 28 days from the date on which the notice of the decision or act was first sent or published as the case may be or, if notice of the decision or act was not sent or published, from the date on which the person or persons became aware of the decision or act.

(6) The Court may extend the period provided for in subsection (5) within which an application for leave referred to in that subsection may be made but shall only do so 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 so provided were outside the control of the applicant for the extension.

(7) An application for leave under this section shall be made by motion ex parte and shall be grounded in the manner specified in Order 84 in respect of an ex parte motion for leave.

(8) The Court hearing the ex parte application for leave may decide, having regard to the issues arising, the likely impact of the proceedings on the Commission or the person concerned or another party, or for other good and sufficient reason, that the application for leave should be conducted on an inter partes basis and may adjourn the application on such terms as it may direct in order that a notice may be served on that person.

(9) If the Court directs that the leave hearing is to be conducted on an inter partes basis it shall be by motion on notice (grounded in the manner specified in Order 84 in respect of an ex parte motion for leave)—

(a) if the application relates to a decision made or other act done by the Commission (including an adjudicator and an authorised officer) in the performance or purported performance of a function under this Act or the Principal Act, to the Commission (including an adjudicator and an authorised officer) concerned, and

(b) to any other person specified for that purpose by order of the Court.

(10) The Court may—

(a) on the consent of all of the parties, or

(b) where there is good and sufficient reason for so doing and it is just and equitable in all the circumstances,

treat the application for leave as if it were the hearing of the application for judicial review and may for that purpose adjourn the hearing on such terms as it may direct.

(11) The Court shall not grant leave under this section unless it is satisfied that—

(a) there are substantial grounds for contending that the decision or act concerned is invalid or ought to be quashed,

(b) the applicant is materially affected by or has a sufficient interest in the matter which is the subject of the application, and

(c) the matter does not relate to a decision by an adjudicator under section 90 or 91 .

(12) If the court grants leave under this section, no grounds shall be relied upon in the application for judicial review under Order 84 other than those determined by the Court to be substantial under subsection (11)(a).

(13) The Court may, as a condition for granting leave under this section, require the applicant for such leave to give an undertaking as to damages.

(14) If an application is made for judicial review under Order 84 in respect of part only of a decision or other act to which subsection (1) applies, the Court may, if it thinks fit, declare to be invalid or quash the part concerned or any provision thereof without declaring invalid or quashing the remainder of the decision or other act or part of the decision or other act, and if the Court does so, it may make any consequential amendments to the remainder of the decision or other act or the part thereof that it considers appropriate.

(15) The Court shall, in determining an application under this section or an application for judicial review on foot of such leave—

(a) act as expeditiously as possible consistent with the administration of justice, and

(b) give such priority as it reasonably can, having regard to all the circumstances, to the disposal of proceedings in that Court under this section.