I, David Barniville, 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 Directions HC107 and HC114 are revoked and replaced by this Practice Direction with effect from Monday 17^th April, 2023.

 

PART I – GENERAL PROVISIONS

 

(1) Scope of the List

1. (1) The Commercial Planning and Environmental List (“the List”) encompasses the following categories of cases:

1. the following cases which will be administratively entered in the List without the necessity for application by any party for admission of the case to the List:
   1. judicial reviews relating to decisions made by An Bord Pleanála as the first-instance decision-maker (other than compulsory acquisition (without prejudice to paragraph (b)(iii)), including Strategic Infrastructure Development, Strategic Housing Development, Large-scale Residential Development or local authority developments that require environmental impact assessment (EIA)/appropriate assessment (AA);
   2. judicial reviews relating to decisions regarding the provision of national or public infrastructure;
   3. proceedings relating to requests for access to environmental information under Regulation 6 of the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007) and/or directive 2003/4/EC;
2. the following cases admitted to the List by order of the court, if the court is satisfied that the case is of a commercial character or has commercial or other aspects that would render it appropriate for the Commercial List (noting that assessment of the case for the purpose of admission will relate to the subject-matter of the dispute and not the specific issues raised):
   1. planning cases (including cases related to any provision of the Planning and Development Act 2000 (“the 2000 Act”), including planning injunctions); and
   2. environmental cases including, non-exhaustively, cases related to climate, development consent of any kind including under the Maritime Area Planning Act 2021, Environmental Protection Agency (EPA) licensing, waste control and remediation, air, water/ wastewater, minerals or other natural resource protection, flora or fauna, forestry, fisheries/ aquaculture, the maritime environment, or cases engaging EU directives on related subjects including, non-exhaustively, EIA, habitats, Strategic Environmental Assessment (SEA), birds, water/ wastewater or industrial emissions;
   3. any dispute regarding an element of a project that is linked to or consequential on a decision to which proceedings in the list relate, such as compulsory acquisition orders or wayleave notices related to a development consent impugned in the proceedings; and
3. the following matters which will be admitted automatically on being notified to the court without the necessity for application by any party for admission of the case to the List:
   1. satellite litigation as defined below; and
   2. the determination of questions as to whether any given proceedings constitute satellite litigation.

(2) Notwithstanding the scope of the list as set out in sub-paragraph (1), cases shall be assigned different levels of priority and it shall be an objective that business shall be managed so that capacity is retained in the List to deal expeditiously with urgent cases such as proceedings which concern challenges to large-scale projects of strategic importance, so that these proceedings can continue to be prioritised and afforded an early hearing date.

 

(2) Satellite litigation

2. For the purposes of the scope of the List –

(a)        “party” includes any member, director, officer, servant or agent of a party or other persons that can reasonably be seen as acting in concert with any such parties, and for this purpose;

(b)        “substantive litigation” means any proceedings in the List;

(c)        “satellite litigation” means proceedings of any kind arising between parties (as defined above) to substantive litigation (irrespective of whether the same personal or corporate litigants are named in the satellite litigation) that relate to or arise from the legal or factual matters to which the substantive litigation relates such as (but not limited to) the actions of a party in the substantive litigation in promoting or opposing any development or proposed development, plan or project to be carried out by another such party, including but not limited to actions in defamation, anti-suit or similar injunctions, allegations regarding maintenance and champerty, or actions to obtain information.

3. No party may make any application in any satellite litigation to any judge of the High Court other than to the Judge in Charge of the List or, to the extent directed by that judge, to another judge assigned to the List.  Where no judge assigned to the List is sitting at the time it is proposed to make an application, the moving party must contact the List Registrar to obtain directions by or on behalf of the Judge in Charge of the List as to how and when the application may be made. 
4. Where any satellite litigation is commenced on or after the commencement date of this Practice Direction, or where, at any time after the date of this Practice Direction, parties to proceedings disagree about whether the proceedings constitute satellite litigation, the parties shall forthwith inform the List Registrar in order to list the litigation for mention in the List on the next convenient sitting Monday.
5. Where satellite litigation commenced prior to the commencement date of this Practice Direction remains extant, the parties shall forthwith inform the List Registrar in order to list the satellite litigation for mention in the List on the sitting Monday next following the commencement of this Practice Direction or as soon as possible thereafter so as to ensure the fair, efficient and expeditious determination of that litigation.

 

(3) Purpose and Goals of the List

6. The purpose of the List is to provide as efficient a processing as is consistent with justice of such planning and environmental cases, and related cases as specified above, as are assigned or admitted to the List.
7. The specific goals of the List include:

(a)to provide effective and paperless access to justice for cases within the List and to provide their efficient disposition;

(b)to the extent requested by any party, to provide such certainty as can be achieved as to costs rules prior to the incurring of inter partes costs in the proceedings;

(c) to maximise use of existing resources and minimise costs through case management, in order to minimise the need for or incidence of multiple interlocutory or interim applications and adjourned substantive hearings, and to take any other steps so that matters proceed expeditiously to hearing and, when at hearing, are expeditiously determined;

(d)so far as resources permit, to provide hearing dates to all cases certified as ready in a list to fix dates (“LFD”) for a particular term, within the term to which the LFD relates;

(e)to promote the general objective, through modularisation or otherwise, that issues as to the validity of laws or measures of general application are normally dealt with only if other domestic or EU law points are not determinative;

(f)to balance the demands on the judges assigned to the List so that the court can deliver judgments in a timely manner, and, insofar as possible, within a 2 month period during term from the date on which judgment is reserved.

8. What is requested and expected from parties and practitioners is inter alia:

(a) a reasonable and business-like approach to the processing of matters within the List;

(b) sustained and realistic efforts to reach agreement on as many issues, particularly procedural issues, as possible;

(c) the avoiding of unnecessary interlocutory disputes, particularly where disagreement can reasonably be saved for a single substantive hearing;

(d) compliance with such time limits as are directed, including for oral submissions, and, for that purpose, the highlighting by parties of their main submissions in a concise manner,

(e) conducting correspondence and communications inter partes in as business-like, co-operative and non-contentious a manner as circumstances permit; and

(f) generally co-operating with the court and each other in the efficient dispatch of business and the efficient management of hearings.

9. The foregoing provisions are intended to set out the aspirations and requests of the court and not to create or add to enforceable duties under either the Judicial Council Act 2019 or professional codes applicable to practitioners.

 

(4) Operation of the List

10. The default mode of hearing (subject to consideration of any application to the contrary) for listings in Monday lists, directions, case management or procedural matters is remote, and for cross-examination or other oral evidence is physical.  Any other matters will be heard as directed at the discretion of the judge dealing with any particular case having regard inter alia to any applications by the parties.  Any person requesting access to a remote hearing otherwise than via a link supplied to parties and legal representatives should contact the List Registrar and furnish any necessary undertakings.
11. (1) The processing of business shall be by way of either physical or remote court sittings as set out above, provided that the court may determine a matter on the papers in cases such as where:
    1. the matter relates to the organisation of the list only and does not constitute the administration of justice as such, for example by fixing a return date to enable the issue of a notice of motion, or a date for the listing of a matter;
    2. the matter is non-contentious, for example a consent order/ adjournment;
    3. the order concerns the correction of an order under the slip rule; or
    4. the matter is in the nature of an urgent application for a stay or similar order.

(2) For the purposes of this Practice Direction, reference to “consent” of the parties includes a situation where parties do not object to the adjournment/order in question, and “parties” for this purpose does not include parties not taking an active part in either the proceedings as a whole or the particular module of it being dealt with by the court at the given time.

12. Where, for whatever reason, any judge of the List is not dealing judicially with a particular case or category of cases, such judge may, unless a party objects in advance, deal with the case administratively, for example by allowing the case to be mentioned for the purpose of being formally moved, or by fixing a date; or may make a consent order.
13. The Judge in Charge of the List may provide guidance (“guidance notes”) on the practical implementation of this Practice Direction, for example by specifying the form of checklists to be completed for various steps (such as grant of leave following admission to the list, or for certification of readiness), specifying details of procedures for uploading of materials or so that matters can be listed for mention or hearing, providing information on sitting times or default times, informing parties of procedures regarding papers for CJEU references, or setting out time lines for submission of papers or information to the List Registrar for listings, and subject to the directions of the President, may adjust procedural arrangements in the List if necessary or expedient to do so.  Guidance notes are subject to rules of court and Practice Directions and shall be published on courts.ie.

 

(5) Monday listings

14. Where after a given Monday list is published in the Legal Diary, a consent order/ adjournment is to be made (including a final order) and is duly notified to the List Registrar, the consent order/ adjournment will be announced by the List Registrar in court when the matter is called, and the parties do not need to attend for this purpose.  
15. Parties are encouraged to agree as many issues as possible so as to avoid the necessity for the matter to be dealt with substantively in the Monday list.  The List Registrar should be informed of any such agreement even after the deadlines set out in guidance notes. Where parties inform the List Registrar of consent to an adjournment after the relevant deadline, the List Registrar may endeavour to accommodate such an adjournment and, unless the parties are otherwise notified, that order will be made by the court on the Monday concerned on consent without the necessity for the parties to attend. 
16. The draft list for any given Monday will be published on courts.ie.  The purpose of issuing a draft list is inter alia to facilitate parties in informing the court in advance of such consent orders/ adjournments as may be appropriate.
17. Unless listed for directions only, the list will, where possible, include a note after the name of the case regarding the specific reason why it is being listed (e.g., “[Ex parte]”).
18. Where a matter is listed in the Monday list, parties should endeavour to agree on the appropriate order in advance of the matter being called.
19. The Monday list should be published in the Legal Diary and posted on the Courts Website on the Friday preceding the Monday list, in the same manner as other lists.  In addition, all procedural notices and other information of general application ought to be posted on courts.ie and/or included in the Legal Diary. For the purpose of facilitating, on request, reminders regarding such information, the List Registrar shall maintain an email circulation list of interested legal representatives or personal litigants in the List.  Any interested practitioner or litigant may be added to this list, on furnishing an email address to the List Registrar, on an inclusive and equal basis.

 

(6) Communications with the court

20. In general other than in respect of ex parte applications, parties communicating with the List Registrar or the court should copy all other parties participating in the proceedings.
21. Communications intended specifically for the attention of the court as opposed to the List Registrar should be addressed to cpsid@courts.ie and copied to the relevant judicial assistant.
22. Any inter partes correspondence regarding matters liable to be raised at a Monday listing of the matter should be copied to cpsid@courts.ie and the relevant judicial assistant and uploaded to ShareFile.

 

(7) Papers to be lodged 

23. Where the Central Office requires hard copy filing of particular papers, parties must comply with any such requirements.
24. Separately, parties should upload all papers for the attention of the court (as they are generated) to the ShareFile folder for the case.  These should be in searchable PDF format in so far as possible, save where MS Word format is required.  Such documents include:

(a).       Ex parte Docket  

(b).      statement of grounds (SOG) / statement of opposition (SOO) and grounding Affidavits [MS Word Format for SOG/SOOs]

(c).       Affidavits of Service  

(d).      Originating Notice of Motion and associated Affidavits  

(e).       Such Motions and affidavits that the Court may grant liberty to the parties to issue  

(f).       All other appropriate documents 

(g).       Indices to each volume [MS word format].

25. As regards exhibits, such papers should be uploaded to ShareFile in the following format:

(a)        all papers generated by the applicant in searchable format, insofar as this is practicable;

(b)        all other papers in searchable format where available publicly online (or otherwise readily available to the applicant in a particular case) in searchable format;

(c)        where papers are not available in searchable format as above, such papers to be in pdf format, provided that the applicant must, prior to the filing of books for the substantive hearing, liaise with the other parties to ensure that as many as possible of the papers to be lodged are in searchable format.

26. In addition to the foregoing, an applicant for leave must upload to ShareFile a completed checklist in the form directed in guidance notes signed by the applicant’s solicitor (or applicant in person) confirming compliance with the requirements of the List or identifying any non-compliance.   
27. Unless otherwise ordered in an individual case in a particular respect, no hard copy papers are required to be furnished to the court.  Nor will USB keys be required to be furnished. All relevant documents are to be uploaded to the case ShareFile folder in the specified format.  
28. Parties must co-operate with the List Registrar to:

(a) maintain a list of the solicitors and barristers (and, where applicable, litigants in person) who have access to the ShareFile link for the proceedings, by recording their names and email addresses; and

(b) upload all new papers in an organised manner, with file names that are descriptive of the contents (and in accordance with such file naming conventions as are set out in guidance notes) and that are uploaded in a way that avoids excessive proliferation of files.

29. Papers shall not be placed in the root directory of the case folder, but shall be added to the relevant sub-folder (if necessary, to the miscellaneous papers sub-folder).  Parties should not create new folders if the papers can be reasonably accommodated within an existing standard folder.
30. When preparing/ uploading papers in Word document format, practitioners should clear formatting as much as possible.  Word “headings” should be avoided as much as possible.  Word documents must be in a minimum of 12 point type.   
31. A party should not send any papers to the List Registrar (or the court) or notify the List Registrar or the court that such papers have been filed, without uploading those papers to ShareFile before doing so.  In particular, a party should not send a SOG or proposed amended SOG to the other parties, the List Registrar or the court without uploading both a copy of such document and a completed leave checklist, or amended leave checklist in the case of an amended SOG (unless leave has already been granted).   Parties must ensure that the ShareFile folder is populated with all relevant papers in advance of any matter being listed in the Monday list.
32. Documents uploaded to the password-protected ShareFile platform should be in a readily openable format (PDF or DOCX) and should not be made time-limited or otherwise inaccessible.
33. Indices to books of pleadings shall briefly describe each exhibit rather than merely give its reference number.
34. Insofar as reference is made to the electronic provision of documents, this does not constitute “electronic filing” which concerns pleadings, and which can only be provided for in rules of court (see s. 20 Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020).  
35. The court may, upon application to it, and subject to considering the views of the parties and to the imposition of such conditions and the requirement of such undertakings as it considers appropriate, by order grant access to the ShareFile or a relevant part of it to persons (including environmental NGOs) who are not parties to the proceedings, provided that such persons demonstrate sufficient reason for such access.

 

 

(8) Amendment of pleadings

36. In the context of an application for leave to seek judicial review, an applicant may seek liberty to amend the pleadings in accordance with O. 84, r. 20(4) RSC.
37. Following the grant of leave, a party may apply to amend its pleadings in accordance with O. 84 r. 23(2) RSC on giving due notice to the other parties.  If so requested by any other party, such application should be brought by motion grounded on affidavit setting out the explanation for not having made the point in the original pleadings, together with such facts as are required to be averred to in order to establish arguable or substantial grounds (as the case may be) for the amended case.
38. At any stage of proceedings the court may direct such amendments to any party’s pleadings as are in the opinion of the court appropriate to ensure compliance with rules of court, Practice Directions or guidance notes, to adequately particularise the case being made, or to correct/clarify errors or ambiguities.  A party shall not be entitled by virtue only of such a direction of the court to make additional substantive amendments to its pleadings without leave of the court.
39. When a case is admitted to the list, but pleadings are not in the format prescribed by any relevant substantive statutory provision, including rule of court or statutory practice direction, or guidance notes applicable to the list, the default order will be that the parties have liberty to amend their pleadings to the extent (if any) necessary to comply with such requirements.  In advance of the following listing date, the party with carriage of the proceedings must furnish the court with a checklist in the form set out in guidance notes confirming that any non-compliance has been addressed.  A party shall not be entitled by virtue only of a direction of the court as set out above to make additional substantive amendments to its pleadings without leave of the court.
40. In the event that an amended SOG (or SOO) alleges new facts, or contains new pleas that require an explanation, it shall be supported by a sworn affidavit verifying the proposed amended statement, explaining the substance and necessity of the amendment and (other than in respect of clarifying or formatting amendments directed by the court) explaining the failure to include the relevant content in the original SOG or SOO.
41. If the applicant is directed or permitted to file an amended SOG, the applicant shall furnish the List Registrar with an unfiled amended SOG in electronic Word document format.  Where any necessary supporting affidavit is not available at that time, the order may give liberty to file the amended SOG on the basis of an undertaking to file a verifying affidavit within a period to be specified (normally 14 days).    
42. Any order allowing the filing of an amended SOG will be expressed to be without prejudice to any point the respondents/ notice parties might have taken (if on notice) or might take in due course (if ex parte), and in the event of an amendment granted prior to considering a leave application, without prejudice to the issue of amendment being revisited by the court prior to granting leave should it appear necessary to do so.
43. A further completed checklist is necessary following any amendment to the SOG.
44. Any amended pleading shall, in accordance with Order 28 rule 9, RSC, be marked with the date of the order under which it 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 ….…” 

45. 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.”

 

(9) Adjournments

46. The following shall apply in relation to adjournment of an ex parte application:
    1. where an applicant’s papers are not in order by reason of any matter that cannot conveniently be rectified by the court at the listing concerned, for example by reason of failure to upload the necessary papers to ShareFile to enable the court to properly consider the matter, it shall be presumed to be in the interests of justice that an applicant should have a single adjournment to rectify matters, which will normally be for one sitting week.
    2. where an applicant’s papers are not in order following the foregoing adjournment in such a way as to allow the court to deal conveniently with the application (for example due to failure to upload papers), the court may impose one or more of the consequences set out below in the event of any further adjournment being granted.
47. The following shall apply in relation to the adjournment of an application on notice:
    1. in the case of a matter on notice, it shall be presumed that where the parties consent to an adjournment or other order, such an outcome is in the interests of justice.  Therefore where all parties taking an active role in the application concerned consent, the application will normally be acceded to by the court.   
    2. where a party seeks an adjournment which is not consented to by all parties taking an active role in the application concerned, the matter shall be determined by the court and if such adjournment is granted in circumstances where there was any default or delay by any party, the court may if it is disposed to allow the adjournment impose one or more of the relevant consequences set out below. 
48. The consequences referred to above are:
    1. an order that any further adjournment be peremptory;
    2. in the case of an ex parte application, an order that any further processing of the application be on notice;
    3. an order modifying the application of the default directions in the particular case so that any time unnecessarily absorbed by the defaulting party will be deducted in whole or in part from that party’s time for a subsequent step.
    4. an order that specified costs of the defaulting or delaying party be disallowed as between party and party or solicitor and client or both;
    5. such other consequence as the court considers appropriate and has jurisdiction to grant (and in that regard the foregoing specific consequences are without prejudice to the powers of the court whether as to costs or otherwise).

 

PART II – STAGE-BY-STAGE PROCESSING OF CASES

 

(10) Applications other than by way of judicial review

49. The procedural provisions of this Practice Direction are primarily phrased in terms of their application to judicial review as the predominant form of litigation in the List.  In the case of proceedings other than by way of judicial review, such as plenary proceedings or applications under O. 84C RSC, where direct application of a provision of this Practice Direction is not appropriate, parties are requested, insofar as reasonable and practicable, and subject to any directions of the court, to apply such provision with such modifications as may be necessary or appropriate having regard to the differing forms of litigation that may arise.  In cases of doubt, consent of the other parties or directions of the court should be sought.  More detailed protocols regarding such application/ modification may be issued by guidance note in due course in relation to particular types of litigation.

 

(11) Intended ex parte applications

 

50. Where an applicant intends to make a first mention of an ex parte application, the applicant should in the first instance contact the List Registrar (or another designated registrar in the event of the List Registrar’s absence) to indicate the intention to do so.  The List Registrar will then:

1. advise the applicant as to which judge (whether assigned to the List or not) is available to see the application formally moved in a timely manner;
2. advise the applicant of the first listing date for the matter, to which it should be adjourned after the initial mention; and
3. create a ShareFile folder and provide details after the matter has been first mentioned.

51. Parties are encouraged to complete the Leave checklist as soon as possible in the process so that in the event of any format amendments becoming necessary as a result, the question of amending the SOG can be considered by the court at the earliest opportunity.

 

(12) Intended Applications to admit to the List

52. For the avoidance of doubt, the provisions of this Practice Direction relating to applications to admit a case to the list do not apply to matters that are to be listed automatically in the List.
53. A party who intends to apply for the admission of proceedings to the List shall do so by communicating with the List Registrar in the first instance.   
54. Where a party wishes to mention a leave application prior to and in anticipation of making the application for admission to the List, it may do so and the court will provide a return date for a motion to admit.
55. A judicial review applicant who intends to make such an application is encouraged to apply to the court through the List Registrar at the earliest stage, preferably prior to or at the first mention of the judicial review application.
56. Where a return date for a notice of motion is provided as above, subject to any order of the court to the contrary, mention dates for the proceedings in any other list shall be administratively vacated as an interim measure pending the determination of the motion and shall be reinstated on the next convenient date in the event that the application for entry into the List is refused.  The vacation of mention dates in other lists does not undermine or prejudice in any way the right of any other party to oppose the application for admission to the list, but rather ensures that the matter will be dealt with in a logical sequence.

 

(13) Statements of Grounds and Grounding Affidavits

Format

 

57. The SOG 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.

 

Parties

 

58. If non-transposition or inadequate transposition of any EU law obligation is pleaded, Ireland and the Attorney General should be named as respondents.
59. If the validity or ECHR compatibility of any primary or secondary legislation, or measure of general application (such as a guideline) is impugned, Ireland and the Attorney General should be named as respondents.
60. If a decision of a local or other authority or body is challenged or one of their acts is put in question (for example, a decision to extend a permission, or to extend a local area plan), the authority should be named as a respondent and not as a notice party.
61. Where the proceedings seek an order affecting an interest in lands (for example by challenging the validity of a permission or of a provision in a development plan regarding such lands), and the notice party is not the full owner of the land concerned or all of it, any other identifiable owners of the land (particularly those who have consented to the application for the permission as part of the application process) should be named as notice parties, save where the court otherwise directs or where the number of such other owners makes this impracticable.

 

Reliefs generally

 

62. Parties considering challenging any preliminary decision prior to a final substantive decision should in cases of doubt seek consent from the proposed respondents and notice parties to the effect that no point will be taken against the applicants if the challenge is postponed to the final decision and that any extension of time for that purpose, if required, will be consented to.  If such consent is not forthcoming and an application is brought, the court may award costs of that challenge, irrespective of its result, against any party who caused unnecessary costs to be incurred by declining to furnish such consent.
63. Pleadings which claim an excessive number of reliefs and/or involve an excessive number of grounds are inappropriate.  Accordingly, SOGs 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. 
64. Reliefs in relation to documents or instruments should be addressed to the documents or instruments themselves rather than to any abstract or prior decision to make, adopt, publish or promulgate the instrument (for example – certiorari of (or declaration regarding) a document, not certiorari of the decision to adopt, or to publish, the document).  If exceptionally the respondent has decided to make a document or instrument prior to the date of issue of proceedings but has not actually done so as of such date, the appropriate relief should be certiorari of the document or instrument when made (and if necessary an order requiring the respondent to make a record of the decision for the purpose of having it quashed).
65. The reliefs section only needs to claim substantive final reliefs.  Interim and interlocutory reliefs do not need to be claimed in a SOG (but an applicant is not prohibited from doing so).  Omission of any such relief does not in any way prejudice the entitlement of an applicant to seek such relief at a later stage whether by motion or otherwise as permitted by the court.
66. Extension of time is a substantive relief and should be expressly claimed in cases where it arises.

 

Declaratory relief

 

67. Specific declaratory relief should be sought in the following situations:
    1. where it is alleged that any provision of primary or secondary legislation or a document of general application (such as a guideline) is invalid, whether by reference to vires, national law, the Constitution, EU law, or otherwise;
    2. where it is alleged that any provision of primary or secondary legislation or a document of general application (such as a guideline) is incompatible with ECHR provisions for the purposes of the European Convention on Human Rights Act 2003;
    3. where it is alleged that the State has failed to transpose at all any element of EU law;
    4. where it is alleged that the purported transposition by the State of any element of EU law is inadequate, incomplete or defective;
    5. where an applicant seeks a declaration as to specific procedural rights, which may include a declaration that special costs rules apply, whether under s. 50B of the 2000 Act, s. 3 of the Environment (Miscellaneous Provisions) Act 2011, the Aarhus Convention interpretative obligation in EU law, or otherwise (however if the issue is one related to interlocutory relief that does not require a final order in the form of a declaration, the relief does not have to be sought in the SOG and may be sought by interlocutory motion or in such manner as the court directs);
    6. where an applicant pleads a breach of any legal requirement that did not in itself impinge on the applicant’s engagement with the process, for example breach of public participation procedures including notification requirements (such as a failure by the decision-maker to facilitate public participation or to make adequate information available) in circumstances that did not in itself impair the engagement with the process by the applicant specifically (and thus that might not necessarily be grounds for certiorari) but that nonetheless might warrant being marked with declaratory relief (such relief can be pleaded as being without prejudice to the applicant’s claim for certiorari if the applicant wishes to argue the issue under that heading also).
68. Where the validity or ECHR-compatibility of legislation or an instrument or document of general application is challenged, declaratory relief should be the primary relief sought in that respect.  Applicants normally can plead such relief as the only relief in respect of such grounds (on the basis that declaratory relief in respect of general instruments can be sought as and when such measures are applied to particular situations). 
69. Specific declaratory relief is not generally appropriate in the following situations:
    1. Where the declaration is in substance a reformulation of the claim for certiorari or amounts to a claim that one or more of the grounds for certiorari are well founded.  For example, if the main claim is certiorari on the grounds of lack of vires, an additional claim for a declaration that the decision is ultra vires adds nothing.  Practitioners should have regard to the principle that duplicative relief is not normally granted, and that therefore, with limited exceptions as set out above, declarations are generally redundant if substantive relief by way of certiorari or mandamus is granted, and are inappropriate if that substantive relief is refused. 
    2. Where declarations merely set out the grounds for the other reliefs claimed.  Generally, any claim for declaratory relief should not itemise the specific errors concerned.  That should be done in the grounds. 
    3. Where the applicant is seeking clarification or confirmation as to the meaning of some legal provision or doctrine.  Generally any such clarifications, if the court thinks it appropriate to provide them, will be provided in the judgment of the court without the necessity for a specific declaration.
70. If or to the extent that an applicant wishes to claim declaratory relief in some respect not covered by the foregoing, an applicant may plead a fall-back relief along the lines of: “Such declaration(s) of the legal rights and/or legal position of the applicant and persons similarly situated and/or of the legal duties and/or legal position of the respondent as the court considers appropriate”, or a relief to the like effect. 

 

Grounds

 

71. Section (e) of the SOG should be divided into the following parts (further detail is set out below):
    1. Core Grounds;
    2. Particulars of Grounds;
    3. Jurisdictional criteria; and
    4. Factual Grounds.

 

Core Grounds

 

72. If there are more than two pages of legal grounds, the first part should be headed “Core Grounds” and should set out the summary grounds of challenge in numbered paragraphs, starting with 1 and in the format specified in the Appendix below. It may not exceed 2 pages.  A template form of core grounds is set out in Guidance Notes to be issued by the Judge in Charge of the List, which should be used with any necessary modifications.  The Core Grounds should be divided into three sub-parts (insofar as applicable) as follows (note the numbering should be consecutive throughout this section starting at 1, and should continue the numbering throughout the section rather than re-start within each sub-section below):
    1. Domestic law grounds (this should exclude validity grounds but include any challenge to an individual decision by reference to the ECHR as incorporated by domestic law);
    2. EU law grounds, excluding validity grounds but including non-transposition grounds;
    3. Validity grounds, that is grounds regarding the validity (by reference to the Constitution or to domestic or EU law) or ECHR-compatibility of any primary or secondary legislation or any measure of general application such as a guideline.
73. Where reliance is placed in either the core grounds or the particulars of grounds on any provision of EU law, the relevant transposing provision of Irish law should also be cited unless legally irrelevant.
74. Where reliance is placed in either the core grounds or the particulars of grounds on any provision of domestic law that transposes EU law, the relevant provision of EU law should also be cited unless legally irrelevant.
75. Where reliance is placed on a domestic law provision that transposes an EU law obligation, the point concerned should be addressed in the EU law grounds sub-part.  The domestic law sub-part should be reserved for purely domestic points with no EU dimension.
76. Where declarations are sought as to non-transposition or inadequate transposition, or as to validity of legislation, instruments or policy documents, appropriate grounds must be included in respect of any such declarations referring expressly to the relevant provisions of EU law, the Constitution, etc. allegedly contravened.  Likewise where any grounds are included that correspond to reliefs which require express articulation as set out above (such as lack of transposition), such reliefs must be included, so that in all cases there is a correspondence between reliefs and grounds.
77. Any claim in relation to transposition must clearly distinguish between claims of lack of transposition (that a specific provision of EU law has not been transposed), inadequate transposition (that a purported transposing measure has been adopted and that such measure is not itself invalid but is inadequate in some specific identified way), and invalidity (that the adopted measure is invalid by reference to EU law as positively contravening some EU law obligation).
78. Where a point is being made that straddles more than one sub-part (for example that in some identified respect the decision is contrary to administrative law and to a directive/ transposing legislation, the complaint should be split into two grounds, one being that insofar as concerns domestic law the decision is infirm by reference to the issue relied on, and the other ground relating to the issue insofar as concerns EU law including transposing legislation.  Each ground should be separately addressed in the relevant sub-part.  Domestic law points will be considered on the assumption that EU law does not add to what would otherwise be the domestic law position, but this assumption will be revisited in the event that the court finds it necessary to consider the issue from an EU law standpoint.

 

Particulars of Grounds

 

79. The next part should be headed “Particulars of Grounds” and the particulars of legal grounds of challenge should then be set out in numbered paragraphs.  Where the grounds are phrased to refer to certiorari specifically, but declaratory relief is also sought, a general ground to the effect that certiorari grounds are also relied on for declaratory relief should be included at the end of this section.  
80. Any general wording such as that the applicant relies on the grounding affidavit or the papers generally is superfluous but if an applicant wishes to include this it should be at the end of the particulars of grounds and not in the core grounds section.

 

Jurisdictional criteria

 

81. The next part should be headed “Jurisdictional Criteria”, explaining how the application meets any relevant jurisdictional criteria that could reasonably be in dispute, by reference to particular identified statutory provisions or legal doctrines (e.g., standing, legal capacity in the case of an unincorporated body, exhaustion of remedies if an appeal or review mechanism exists).

 

Factual Grounds

 

82. The final part should be headed “Factual Grounds” and the relevant facts and matters relied on shall be set out in numbered paragraphs, which must be in chronological order.  This should include a comprehensive chronological catalogue indicating the dates of each relevant factual occurrence or procedural step concerned.  The “Factual grounds” section of the SOG should include, where applicable, dates of pre-application consultations, the permission application, any relevant reports/ assessments, any submissions of particular relevance to the proceedings, any inspector’s report, and of the decision. 
83. Grounds which are in the nature of legal grounds or more appropriate for inclusion in the particulars of legal grounds ought not to be included in the section of the SOG entitled “Factual Grounds”.

 

Format

 

84. SOGs must be dated and should state at the end the names of any counsel who settled them.

 

Grounding affidavits

 

85. The facts alleged in the SOG must be verified by affidavit.
86. All documents that, in the opinion of the applicant, are relevant to the issues raised by the SOG should be exhibited to the applicant’s grounding affidavit, insofar as in the possession of the applicant. 
87. Insofar as such documents are not in the applicant’s possession as of the date of swearing, reasonable steps should be taken to procure such documents (insofar as that may be practicable, such steps should be taken prior to the initiation of proceedings); and such documents should be exhibited in due course if obtained, unless exhibited by another party to the proceedings. 
88. An applicant is not obliged to filter the material before the decision-maker to positively remove what is thought not relevant from the material to be exhibited, and in case of doubt applicants are encouraged to exhibit the totality of material before the decision-maker that is available to them.
89. Where there is more than one applicant, it will be sufficient if at least one such applicant swears/affirms a grounding affidavit on behalf of all applicants, provided that the deposing applicant avers to the other applicants having approved that verifying affidavit and the SOG.  Where the applicant is a body corporate or unincorporated association, any person in authority may swear/affirm the grounding affidavit on behalf of and with the authority of the body/ association.  Where no applicant or (in the latter case) person in authority in an applicant body/association is in a position to swear/affirm the grounding affidavit, directions of the court should be sought in good time prior to seeking to file the papers.
90. It shall not be necessary for any party to exhibit on affidavit copies of officially published documents that are available on the internet, such as development plans, section 28 guidelines, or European Commission guidelines.  These documents may be referenced in affidavits using a web link to an official website.  It is recommended that parties also include their full title, version, and date of publication.   

 

 

(14) Notice of motion to admit case to the list

91. Any party to proceedings that are or may be, in the opinion of that party, proceedings capable of being admitted to the list may apply for the admission of the case to the List. 
92. A respondent/notice party (“opposing party”) in a judicial review may apply to the court for the matter to appear in the List as soon as such party becomes aware of the proceedings and prior to the service of any papers by the applicant.
93. The application shall be made by notice of motion.  The notice of motion shall have appended thereto a certificate of the solicitor for the moving party to the effect that the proceedings would be appropriate to be treated as “commercial proceedings” within the meaning of O. 63A r. 1 RSC, and briefly setting out such facts relating to the proceedings as shall demonstrate this, whether by reference to the monetary value of the development or matter in issue in the opinion of the party applying, or any other aspect rendering the proceedings appropriate for admission.  Paragraphs 1 to 4 of High Court Practice Direction HC93 shall apply with any necessary modifications to such an application.  Only in exceptional circumstances, which must be averred to on behalf of the moving party, may an application be made under this sub-paragraph in a case where the exchange of affidavits (or pleadings in the case of plenary proceedings) is complete. The court may grant such an application if the interests of justice so require.
94. The papers for the motion to admit the case to the List must be lodged in electronic form in accordance with the timelines set out in guidance notes. 
95. No applications to admit cases within the scope of this Practice Direction to the Commercial List may be made in that list, and in lieu thereof, any such application should be made in the List. 
96. On hearing a motion issued under this paragraph the Court may make an order admitting the case into the List. 

 

(15) Hearing of ex parte application

97. In the case of any ex parte leave application, applicants shall, prior to completing the Leave Checklist for the application, notify all other parties to the proceedings by email or registered post of the fact of the proceedings, and the date of next mention or listing and inform them that they may obtain papers for information by contacting the List Registrar to obtain access to ShareFile.  For the avoidance of doubt, this shall not constitute leave on notice.  Any opposing party shall not be under any obligation to attend the proceedings until served with an originating notice of motion (which as set out below may be electronically), and shall not be prejudiced in any way for not so attending and shall not be held to have acquiesced in any step or failed to raise any objection or other matter in a timely way by virtue of such non-attendance.  If such a party does attend, it normally will be permitted to make brief submissions of a procedural nature but not to argue that the application for leave or any part of it should be refused (unless the court orders leave on notice).  Such a party will not be required to contribute to the leave hearing unless it so wishes.
98. In all leave applications, by the time specified in guidance notes, the applicant shall furnish to the List Registrar all necessary papers for the court by uploading them to the ShareFile platform, including the leave checklist.
99. Where a leave application is adjourned by reason of a failure by or on behalf of an applicant to upload any papers to ShareFile, or a non-compliance with the required format of the SOG or other papers, any order made in due course reserving the costs of the leave application shall be deemed to include only the costs of a single date and of a single version of the SOG, unless the court makes express provision to the contrary in the final order of the court awarding costs.
100. Where any non-compliance with the format of the SOG or other papers can conveniently be addressed in the form of an order granting leave on the submission to the court of amended or additional papers in a form directed, the court may proceed to consider the grant of leave on such basis, but any order will not be perfected until the submission by the applicant of any amended/ additional papers so directed.

 

(16) The grant of leave

101. Should leave to seek judicial review be granted, the standard terms which will apply in default of any order to the contrary will be as follows:

(a)        in the event that an extension of time is expressly sought as a relief in the SOG and in addition the applicant orally requests an extension of time and furthermore satisfies the court to the appropriate standard at the ex parte stage by evidence and/or submission as appropriate that the statutory criteria for such an order, including O. 84, r. 21(3) RSC and section 50(8) of the 2000 Act, are met, that time be extended (if the court is so satisfied) without prejudice to any point that may be raised by the respondents/ notice parties;

(b)        in the event that the court is of the opinion that liberty to file an amended SOG, should be granted, and to compliance with the procedure as set out in this Practice Direction, and subject to the court being satisfied of compliance with the statutory requirements, that liberty to file such amended SOG be granted, without prejudice to any point that might have been be raised by the respondents/ notice parties;

(c)        subject to the court being satisfied of compliance with the statutory requirements including those under s. 50A of the 2000 Act if applicable, and in cases to which it applies subject to the court being satisfied as to each ground meeting the threshold for the grant of leave under O. 84 (as interpreted in G v. DPP [1994] 1 I.R. 374), and subject to the court being satisfied as to the appropriateness of any given relief or ground (and subject to an order in any given case where the pleadings only partly comply with such requirements and thus to an order excluding one or more specific reliefs or grounds from the grant of leave), that leave be granted for the reliefs sought at section (d) of the (amended) SOG on the grounds set out at section (e), without prejudice to any point that the respondents/ notice parties could have made;

(d)       the originating Notice of Motion for judicial review be returnable for 09:30. on the sitting Monday that is 2 weeks after the date of grant of leave;

(e)        service of the Notice of Motion be effected within 7 days of perfection of the order;

(f)        service of other papers be effected within 7 days from the grant of leave (other than papers already furnished prior to the grant of leave, in respect of which formal service will be waived or service actually effected will be deemed good unless any party applies to have service re-effected and the court so orders);

(g)        in the case of any respondent or notice party that is normally represented by the CSSO (particularly, Ireland, the Attorney General, or a Minister of the Government) , service be on the CSSO on behalf of such parties;

(h)        if service is effected in accordance with the order, costs will be reserved; and if service is not so effected, the costs of the leave application will not be recoverable unless the court expressly so orders;

(i)         the court’s default directions schedule will apply unless the parties agree otherwise and notify the List Registrar, or unless the court otherwise orders (such default directions are specified below);

(j)         in accordance with O. 63A r. 31 RSC and/or the inherent jurisdiction of the court, service of papers shall be as follows (subject to any application by any party at any stage and to the power of the court to ensure justice in the event that such service was not effective):

(I)        applicants must share an email address for service with all respondents and notice parties who provide an email address for that purpose;

(II)       respondents and notice parties should provide email addresses for service purposes;

(III)     in the event that a respondent or notice party fails to provide such an email address, service is to be effected by sending the originating notice of motion or other originating pleading by registered post and simultaneously or thereafter by informing the party concerned by registered post that all documents for service will be uploaded to ShareFile, and that contact should be made with the List Registrar to access such ShareFile folder;

(IV)     where a party is required to serve, or otherwise intends to rely on, any document, that party shall email a copy to the other parties that have provided email addresses, and upload a copy to ShareFile. 

(k)        the  opposing parties  shall indicate in writing in advance of the return date their position on whether and to what extent special costs rules will apply to the proceedings and that, in the event of agreement, a draft order by the court noting the terms of such agreement be forwarded to the List Registrar for perfection on behalf of the court;

(l)         if a stay is properly grounded on evidence adduced on affidavit and is sought by the Applicant (which may be orally during the hearing of the leave application, because interim or interlocutory relief does not need to be expressly claimed as a relief in the SOG, although it does require to be expressly addressed by affidavit), and if the court is satisfied in accordance with the applicable principles and on the basis of the evidence adduced by the applicant that it is appropriate to grant a stay, and bearing in mind the principle, where applicable, that proceedings are not to be prohibitively expensive, the implementation of any individual decision  impugned in the proceedings or if applicable the processing of any specified application or appeal shall be stayed with effect from notification of the stay to the relevant party, with liberty to effect such notification by email or telephone, until the determination of the application for judicial review or until further order or until the stay shall have lapsed by reason of the applicant’s failure to serve an originating Notice of Motion for Judicial Review, without prejudice to the right of any affected party to apply to the court on notice in relation to the stay (noting for this purpose that while the court may if appropriate stay an individual decision or a particular process it will not except in extraordinary circumstances stay a measure of general application such as a provision of a development plan, as to do so could create a planning outcome, in breach of the separation of powers, contrary to what has been determined by the relevant decision-maker, in the event that applications continue to be processed under non-stayed parts of the measure of general application concerned); and

(m)       liberty to apply.

102. If an applicant seeks alternative directions, he/she should apply in that regard when seeking leave.  Likewise, if another party seeks alternative directions, application should be made to the court.
103. The default directions schedule is as follows:

(a)service of the originating Notice of Motion for Judicial Review within 7 days of perfection of the order;

(b)1 week from the grant of leave for the applicant to serve all other parties with other papers where such service has not already been effected;

(c)6 further weeks for any SOO and affidavits by the respondents;

(d)if there are State respondents, 2 further weeks for any SOO and affidavits by State respondents unless the case against such respondents has been modularised;

(e)1 further week for any SOO and affidavits by any notice parties;

(f)3 further weeks for any replying affidavits by the applicant;

(g)2 further weeks for any final replying affidavits by any other party;

(h)immediately thereafter, any party may certify the case as ready setting out proposed hearing dates (if such a certificate is lodged with the List Registrar the matter may be assigned an actual hearing date administratively or given a new Monday listing forthwith for that purpose, or alternatively listed in the next LFD, depending on the extent of availability of dates at that time);

(i)unless a date can be fixed before then, the matter will be listed on the date of the next LFD that occurs after the conclusion of the foregoing exchange of papers;

(j) the target latest hearing date will be the last sitting day of the term for which dates are to be fixed in the LFD that occurs next after the conclusion of the exchanges set out in the directions schedule.The actual hearing date, which will be fixed in accordance with the foregoing, should therefore occur prior to the target latest hearing date assuming compliance with the directions;

(k)following the fixing of an actual hearing date (but not before then), the applicant to have 2 weeks for written legal submissions;

(l)2 further weeks for non-State respondents to deliver written legal submissions;

(m)if there are State respondents, 2 further weeks for such respondents to deliver written legal submissions;

(n)1 further week for notice parties to deliver written legal submissions;

(o)copy exhibits shall be delivered with all affidavits by the deadlines applicable to such affidavits.

104. In the foregoing default directions, “weeks” includes weeks in September but otherwise excludes vacations.

 

(17) First return date of substantive notice of motion

105. On the first return date of the substantive notice of motion, or as soon as may be thereafter, the default order will be that if the court is so satisfied, and unless the validity of the measure concerned represents the primary relief sought by the applicant, or the urgency or nature of the matter indicates otherwise, any reliefs against State respondents regarding the validity or ECHR-compatibility of any primary or secondary legislation; or of any instrument of general application (such as a guideline) be adjourned to a subsequent module, with liberty to re-enter pending the determination of the other issues, subject to the right of any party to apply in this regard.  This shall not apply to issues of transposition unless such issues can be modularised without affecting any issues of conforming interpretation that may arise in the remaining grounds.  It will be open to any State respondents or any other party to submit that modularisation is not appropriate on the facts of a particular case on the first return date, should this arise, and/or that transposition arguments can properly be modularised in a particular case and/or doing so will not affect the question of conforming interpretation.

 

(18) Statements of opposition

106. SOOs must be dated and must state the names of any counsel who settled  them.

 

(19) Issues arising after the first mention date

107. Generally, parties should correspond on any issues and not raise them with the court during the weekly list unless agreement has first been sought and refused.
108. Parties may agree any consent order providing for variation to the schedule of directions strictly subject to the provision of all papers to the court including submissions by the deadline referred to in guidance notes.  Consent orders including consent variations of agreed timescales should be notified to the List Registrar.  In the case of matters not already listed in the Legal Diary, such matters do not normally require to be listed solely for this purpose.   
109. Subject to submissions to the contrary and to the interests of justice, the default position will be that:
     1. any application for costs protection should be dealt with as a first item of business before costs are incurred;
     2. any issues regarding stays, discovery/ disclosure, cross-examination or modularisation must be dealt with in advance of the hearing;
     3. any issues regarding amendment of pleadings, setting aside leave, standing, capacity, or extension of time may be capable of being dealt with on a basis that facilitates the progress of the case without prejudice to any argument that the opposing parties may make and that postpones until the substantive hearing any argument on any contested issue thereby raised, subject to the right of any party to apply to have such issue(s) addressed in advance of the hearing.

 

 

(20) Papers to be lodged prior to certification for hearing

110. Any party who wishes to obtain a date for any motion, interlocutory matter or substantive hearing must take the following steps, unless the court otherwise orders, by the deadline specified in guidance notes:

(a)Ensure that agreed .pdfs (searchable insofar as practicable) of the pleadings have been prepared and uploaded to the ShareFile link for the case, thereby being shared between all parties, that all legal practitioners involved in the preparation of submissions have access to such agreed electronic books and that all such practitioners have been instructed to add express references to the exact location in these agreed .pdfs of any documents to which attention is being drawn in the written submissions. To avoid persistent mismatch between electronic and physical page numbering, the books furnished to legal practitioners responsible for submissions at the hearing must be identical copies or printouts of the papers uploaded to ShareFile (and therefore must include the same automated paginations).

(b)Complete a checklist regarding certification, which must include proposed hearing dates that have been agreed insofar as possible, upload that checklist to ShareFile and send a copy of the checklist to the List Registrar. If the certificate is completed otherwise than immediately in advance of a given LFD, the suggested dates need not be included in the certificate but should be communicated to the court shortly before the LFD.

(c)Where a date is sought on or after the start of the term to which the next LFD relates and thus where the matter will require listing in that LFD, and where any party is seeking priority, lodge a submission or letter with the List Registrar, copied to the other parties, indicating the basis of the application in advance of the LFD.

111. Where a party is not in a position to confirm that all matters in the checklist are in order, it shall contact the List Registrar to have the matter listed for directions as soon as may be, which may include where necessary the making of an order for revision of pleadings to ensure compliance with the requirements applying under this Practice Direction.   
112. The “Core Book” to be submitted electronically for the hearing should be limited to the essential documents and insofar as it contains materials other than pleadings, should be limited to documents already formally exhibited in the proceedings.  Where it becomes apparent at the core book preparation stage that a document that should have been put before the court was not so exhibited, the parties shall endeavour to agree a reasonable and transparent solution and in default of agreement shall apply to the court as soon as practicable.  The core book shall contain the following:

(a)the (latest amended) SOG;

(b)any inspector’s report;

(c)any impugned decision;

(d)the order granting leave;

(e)(latest amended) SOOs;

(f)any other particularly significant document that the parties wish to include in the core book.

113.  If the papers set out above are not uploaded by the deadline set by the court, the court may vacate any hearing date already assigned or downgrade it to a provisional date only subject to further directions, and may consider an appropriate order as to costs implications.

 

(21) Fixing of date for hearing

114. Where possible, dates will be assigned on the next Monday following the case being certified as ready for hearing rather than at the next following LFD.  This is subject to suitable dates being available and to the party seeking a date being prepared to take an available date prior to the commencement of the term to which the next following LFD relates.  If that party is not so prepared, or if no such dates are available, then the matter will be listed in the next following LFD.
115. Save where the court so orders in exceptional circumstances, dates will not be given on a provisional basis in advance of certification.
116. Where any application for a date before any judge of the list is to be mentioned to the court rather than to the List Registrar, it should be mentioned to the Judge in Charge of the List unless otherwise directed. 
117. The purpose of the LFD is to ensure that the need for expeditious hearings for cases generally is balanced with the need to ensure that sufficient dates are available to create flexibility to accommodate specific cases that require immediate or urgent hearing.  In the latter cases the question of priority in fixing dates will be considered by the court, and in that regard the court will have regard to the following:

1. the desirability of a priority hearing of a second or subsequent module in proceedings that have been modularised and where a prior module has already been dealt with;
2. the need for particular priority to hearing cases regarding decisions that are particularly economically significant or are alleged to be particularly environmentally impactful (noting that (i) developments that are similar to multiple other challenged developments are unlikely to be afforded particular priority, and (ii) no extra priority will normally be afforded to a decision merely because a previous decision about the same development or issue has been quashed by certiorari in prior proceedings);
3. the particular public interest in speedy resolution of cases regarding developments by public authorities, disputes between public authorities, or the validity of instruments of general application where the case cannot be disposed of on the basis of administrative law issues;
4. in the absence of any other priority factor, priority will be given to cases by record number.

118. The time allocated to a full substantive hearing will normally be a maximum of 3 days (with the final time allocation to be decided by the court). In general, if two or more cases are to be heard together, a maximum of 4 days will be provided.  The ultimate decision on duration is with the court.  It will not be necessary to open papers formally, and parties can approach hearings on the basis that papers will be taken as read.
119. Where proceedings raise a point that is or becomes pending in other proceedings either on appeal or before the CJEU, the parties shall notify the court as soon as possible of the issue (irrespective of whether a date has been fixed for hearing) and of their proposals, for modularisation or otherwise, to avoid cutting across the appellate or European process.  Where such proposals were not made prior to the date being fixed, any party aware of such potential overlap shall inform the court of the matter and make proposals for modularisation as soon as possible after becoming aware of the potential overlap, and in any event not later than at the hearing.
120. Parties should propose hearing dates on the basis that generally, hearing dates (including for short matters) will commence on a Tuesday morning. 
121. Following the fixing of a hearing date, the matter will be assigned to a particular judge in due course.  Once so assigned, any further mention dates (including call-over) will normally be before that judge.

 

(22) Written Submissions

122. Unless otherwise ordered, submissions need not be prepared until after the hearing date is fixed. 
123. Written submissions shall be dated at the end, and shall contain at the end the names of any counsel settling them.
124. All written and oral submissions must follow the sequence of clearly dividing domestic law issues, EU law issues and validity issues as set out in relation to core grounds in this Practice Direction, and shall address those issues in that order unless otherwise directed.     
125. Any party seeking a reference under Art. 267 TFEU is requested to so indicate in their submissions and is requested to state a wording for the question(s) concerned.
126. The following provisions of PD HC97 shall not apply to the List:

(a)        para. 3(c)(v) (word limit), and in lieu thereof, written submissions may be up to 10,000 words long not including footnotes or annexes, and issue papers are not required. 

(b)        para. 5(g) (limit on numbers of authorities that may be included in the book of authorities);

(c)        para. 6 (issue papers).

127. Where written submissions prepared by legal practitioners (“substantive written submissions”) are to be relied on by a party, such party shall have regard to Practice Direction HC101 as amended in order to avoid, if possible, the need for preparing a separate version of written submissions for public release.
128. It shall be a standard term of any final order in the List in an application in which substantive written submissions were relied on that, pursuant to and/or consistent  with Practice Direction HC101:

(a) a copy of any written submissions relied upon be filed at the Central Office within 14 days of the Order;

(b) such copy shall comply with the requirements of the Practice Direction aforesaid and be entitled “Written Submissions for Public Release”;

(c) the Written Submissions for Public Release be made available to members of the public if requested in accordance with the conditions set out in the Practice Direction.

129. Where the written submissions for public release involve redaction or other amendment of the substantive written submissions, the party delivering such redacted or amended version shall confirm to the court that the submissions correspond to the substantive written submissions relied on at the hearing. 

 

(23) Authorities for the hearing

130. No later than the deadline set out in guidance notes, all parties shall provide via ShareFile a joint list of authorities as a Word document with hyperlinks to an accessible version of each authority.  A scanned copy of any authority not available on the internet should be uploaded. A physical book of authorities is not required.   
131. Authorities shall be cited/ linked to with reference to their reported form, if reported.
132. It is not necessary to include an authority in the list of authorities merely because it is mentioned in submissions (unless the text is not available on the internet).  Without imposing any rigid limit, it is suggested that around 10 or fewer key authorities per party in a normal case will be sufficient for the purposes of compiling the list of authorities.

 

(24) The running of the hearing

133. The parties shall before trial endeavour to agree the division of available hearing time as between them. But such decision is ultimately a matter for the court, and in so deciding the court will consider but will not be bound by any agreement or views of the parties.  The normal approach is that the applicants collectively will have an equal time to the opposing parties collectively, and that time will be divided equally within such allocation, as between particular parties on the same side of the case.
134. Subject to the interests of justice and submissions in any given case, the court’s general approach will be to conduct the hearing of the domestic and EU law issues on the assumption for the sake of argument that all relevant legislation and policy documents are valid.  If any challenge is made to a measure of general application, whether legislative or policy document, any grounds of such challenge must normally first be addressed in the main module(s) by first seeking a conforming interpretation.   
135. Parties are reminded that time allocations for oral submissions at any substantive hearing must not be taken to be fully guaranteed and may be reduced to accommodate, for example, unanticipated interruptions, so as to finish by the deadline specified in advance.  Parties must therefore plan to leave some margin for such matters when preparing their oral submissions.

 

(25) Judgments and Orders 

136. Unless otherwise directed, reserved judgments will be delivered by electronic publication on courts.ie.  There is no facility to attend court either physically or remotely for such purpose.   
137. Where the court delivers a judgment on a matter in respect of which an order for costs would in the opinion of the court fall to be considered at that point, the court may either in the judgment or as soon as may be thereafter:
     1. indicate that in the absence of application to the contrary within a specified time, the order on foot of the judgment will be perfected on a particular costs basis (such as costs being reserved);
     2. indicate a provisional order in relation to costs (for example, no order as to costs if a costs-protected party is unsuccessful); or
     3. leave the question of costs to the application of the parties. 
138. Any order for costs will not include the costs of any step which was carried out outside a time period directed by the court (as extended by the court or by consent) unless the court specifically so orders in the final order.
139. If a provisional order as to costs is indicated by the court, any party seeking any order other than the provisional order should provide a submission to that effect within 7 days unless the court otherwise directs. 
140. Where any written judgment is delivered, the proceedings shall be listed for mention on such date as the court specifies or, in the absence of such a date, on the second sitting Monday following the date of the delivery of the judgment, or such other time as may be directed, to either confirm that no issues requiring decision arise or to manage such issues, and if the latter, the parties shall seek to agree in advance a timescale for delivery of written submissions on the issues concerned.
141. Final orders in proceedings will not be perfected until such time as the court specifies, or in default of such order, 28 days after a reserved judgment (if applicable) has been published.  If during that period any issues are raised with the court, through the List Registrar, regarding, inter alia, the form of the order, costs, leave to appeal or a stay, the order will not be perfected (unless otherwise directed) until the determination of such issues.  Any order disposing of a particular module will not be perfected until the order in the last module is made and perfected so that all substantive aspects are dealt with in a single order.
142. Any issues regarding errors that may require correction or issues requiring clarification in orders or judgments should be notified to the List Registrar as soon as possible after any party becomes aware of such issues.

 

Signed: _____________
David Barniville
President of the High Court
29^th March, 2023

 

 

GUIDANCE NOTES

Issued by Judge in Charge of the Commercial Planning and Environmental List
Issued April, 2023

 

List to Fix Dates

A list to fix dates (LFD) will be held approximately 8 term-weeks before the start of the term for which dates are being fixed.  The 2023 dates are as follows:

 

12^th  June, 2023 – LFD for Michaelmas 2023 (2^nd October 2023 – 21^st December, 2023)

23^rd October, 2023 – LFD for Hilary 2024

 

Explanatory note regarding stamp duty

 

For the avoidance of doubt, a motion to admit to the List is not formally a motion in the Commercial List, the fee payable under S.I. No. 492 of 2014 is that for an ordinary notice of motion and not for a Commercial Court motion. 

 

CJEU references – guidance as to procedure

 

Where the court decides in principle to refer a matter to the CJEU, the court may apply a default procedure as follows:

(i).     The court may make a formal order for reference following further steps set out below;

(ii).    the parties are to provide short written submissions containing:

(a).    a list of the provisions of European law they consider relevant to answering the questions together with full citations and Official Journal (OJ) publication references;

(b).    a list of the provisions of European case law they consider relevant to answering the questions together with ECLI references and an accessible web address for each case;

(c).    a list of the provisions of international law (if any) they consider relevant to answering the questions, and an accessible web address for each;

(d).    a list of the provisions of domestic legislation they consider relevant to answering the questions and an accessible web address for each piece of legislation;

(e).    a list of the provisions of domestic case law they consider relevant to answering the questions and an accessible web address for each case;

(f).    a one-sentence summary of the party’s proposed answer to each question (maximum 100 words per question);

(g).    separately and optionally, more detailed reasons for the foregoing if they so wish; and finally

(h).    the party’s views on whether there should be any amici curiae added to the proceedings prior to the reference being made. 

(iii)    these submissions should be provide by all parties simultaneously within 2 weeks;

(iv).   if any one or more amici curiae is to be added, such entities would bear their own costs throughout, in the Irish courts and in Luxembourg, and would not have any liability for the costs of any other participant in the proceedings, and that such entities would get involved on a written-submissions-only basis unless otherwise ordered;

(v).    the parties will have liberty to make any enquiries with any suitable entities whether domestic, European or international if and to the extent that they think fit, and for the avoidance of doubt have liberty to convey any judgment in unapproved form and any of the papers to any proposed amicus curiae;

(vi).   the applicant should, however, put the Attorney General on notice of the intention to refer the matter, if not already a party, should he wish to make a submission at this stage on the basis outlined above;

(vii).  once the matter is referred, the parties should liaise to ensure that the court is copied with all submissions including those of member states and EU institutions, and the Advocate-General’s opinion, as those documents are circulated by the court, and to contact the court as soon as the CJEU judgment has been delivered; and

(viii). the matter will be listed in the next Monday List following the expiry of the 2 week period in order to finalise the order for reference.

 

The procedure after the court’s formal order for reference is as follows:
 

It is the registrar’s responsibility to ensure they have all the following before sending to the Principal Registrar's Office for onward transmission to the CJEU:

1. judgment of the court referring the question(s) to the CJEU;
2. the order of the court referring the question(s);
3. Any supporting documentation agreed to accompany the referral to the CJEU.

 

The parties are required provide a schedule of the agreed documents to accompany the referral.
So as to avoid the necessity to send hard copy material, the Principal Registrar’s Office has set up an account with the CJEU (e-Curia) to accept documents by electronic means.

 

When preparing electronic versions/ PDFs parties should scan the signed versions of judgment(s), other than where the judgment contains a section of hyperlinked references to materials.  Such hyperlinked section should be sent in an electronic form that preserves the hyperlinks (e.g., Word).
 

The documents required must be sent in the first instance to the List Registrar (or the registrar dealing with the order for reference, if different).  Once the registrar has all of the above documents in electronic form, they then forward such material to the Principal Registrar's Office.

The Principal Registrar's Office will exchanges (through e-Curia) all of the above along with the required covering letter.  Once received by the CJEU they then issue a unique case reference number.

 

Sitting arrangements

 

Save where otherwise directed, the Monday List will commence at 09:30.  If any matter requires a contested hearing, however short, that may require the giving of a judgment, then a Tuesday listing should normally be sought.  The default times of sitting of the List Judge during the week will be at 09:30 unless otherwise ordered.  The default sitting times of any other judge of the list will be 11:00 unless otherwise ordered.  A party may make application seeking any variation of such times in any given case.

 

Time lines for submission of papers/ notifications to List Registrar

All papers (including written legal submissions and links to/ copies of authorities) for any hearing should be uploaded by 11:00 on the Friday that is two weeks before the week of the hearing concerned.

 

Motions (for example to admit a new case to the List) should be served by close of business on the Monday preceding the Monday list in which the motion is intended to appear.

 

All proposed new matters for any given Monday should be notified to the List Registrar by 11:00 on the preceding Friday.

 

All papers (or amended papers) for any for mention listing on a Monday (including any leave checklist, amended leave checklist, post-admission post-leave checklist or checklist for certifying readiness) should be submitted by 11:00 on the Friday preceding the Monday concerned.

 

Any consent orders including consent certiorari or strike out; consent amended directions or consent adjournments should be notified to the List Registrar by 11:00 on the preceding Friday

 

ShareFile naming conventions

All documents must have a 6-digit number at the start of the file name indicating the date of the document (not of upload), in format YYMMDD.

 

All file names must be descriptive.  E.g., not “Vol 8 exhibits” but “230401 Vol. 8 – EIAR” etc.

 

Any amended SOGs must be uploaded with a file name along the lines of:

• SOG
• Amended SOG
• Second amended SOG etc.

 

Forms

Unless otherwise directed by the court, parties shall use the forms annexed hereto or forms to the like effect, with any necessary modifications in any particular case.

 

FORMS

Form No. 1 - Template of Core Grounds

Form No. 2 - Checklist for Leave Application

Form No. 3 - Post-Admission Post-Leave Checklist

Form No. 4 - Checklist for Certifying Readiness