Superior Court Rules

ORDER 84

JUDICIAL REVIEW AND ORDERS AFFECTING PERSONAL LIBERTY

1. (1) Orders of habeas corpus, orders of certiorari, orders of mandamus, orders of prohibition and orders of attachment shall be witnessed in the name of the Chief Justice or, if the office of Chief Justice be vacant, in the name of the President of the Court of Appeal, sealed with the seal of the High Court and bearing date of the day of issue.

(2) The expression ‘order of habeas corpus’ does not include an order made pursuant to Article 40 section 4 of the Constitution.

(3) Every order referred to in this rule shall be served personally on the person to whom it is directed, unless the court otherwise directs.

[SI 404/17]

I. Habeas Corpus

2. An application for an order of habeas corpus ad subjiciendum shall be by motion ex parte for a conditional order.

3. Unless the court shall otherwise direct–

(a) the application for an order of habeas corpus ad subjiciendum shall be on affidavit which shall be entitled shortly in the matter in question and in the matter of the Habeas Corpus Act, 1782,

(b) No order of habeas corpus ad subjiciendum shall be granted where the validity of any warrant, committal order, conviction or record shall be questioned, unless at the time of moving a copy of such warrant, committal order, conviction or record verified by affidavit be produced to the court, or the absence thereof accounted for to the satisfaction of the court.

4. The order of habeas corpus ad subjiciendum shall be served personally on the person to whom it is directed, unless the court shall otherwise direct. If the order is directed to a jailer or other public official, it shall be served by leaving it with him or his servant or agent at the place of confinement or restraint, or in such manner as the court may direct.

5. The court may, on the motion to make absolute notwithstanding cause shown, order either that the body of the person detained be produced before the court or that such person be released from such detention.

6. Every conditional order of habeas corpus shall be filed in the Central Office and served together with a copy of the grounding affidavit (if any) within 10 days from the day the same shall be pronounced, unless further time is allowed by the court, and in default thereof such conditional order shall stand discharged.

7. Unless the conditional order shall otherwise direct, cause shall be shown within 10 days after service thereof.

8. Where cause is shown it shall be by affidavit. The affidavit shall in addition to the facts deposed to, state concisely the grounds relied on as cause. The affidavit shall be filed in the Central Office and notice of filing shall be served on the applicant or his solicitor within the time allowed for showing cause.

9. (1) Where cause has been shown as aforesaid the applicant may apply to the court by motion on notice to make absolute the conditional order, in whole or in part notwithstanding the cause shown.

(2) Notice of such motion shall be served on the party showing cause or his solicitor within six days after service by him of a notice of filing in pursuance of rule 8 or, where cause is shown by more than one party then within six days of the service of the last of such notices, and if such notice of motion shall not be served on such party he shall be entitled to an order of course allowing the cause shown and directing that his costs of showing cause be taxed and paid by the applicant.

10. Where cause has not been shown in the manner and within the time aforesaid the applicant shall on filing an affidavit of service of the conditional order and a certificate that no cause has been shown, be entitled to obtain a side bar order making the conditional order absolute (unless the conditional order shall have otherwise directed).

11. The return to the order of habeas corpus, where the body is not produced, shall be by affidavit to be made by the party to whom the order is directed and shall contain such full answer to the allegation that the person is detained as the circumstances may require.

12. If an order of habeas corpus is disobeyed by the person to whom it is directed, application may be made to the court, on an affidavit of service and disobedience, for an attachment for contempt. In vacation an application may be made to the court for a warrant for the apprehension of the person in contempt to be brought before the court to be bound over to appear at the next ensuing sittings, to answer for his contempt, or to be committed to prison for want of bail.

13. An application to bring up a prisoner to give evidence in any cause or matter, civil or criminal, before any court, may be made to the court on affidavit.

II. Attachment for contempt

14. An application for an order of attachment for contempt shall be made by motion ex parte.

III. Bail

15. (1) An application for bail by a person in custody or an appeal by an accused person under section 28(3) of the Criminal Procedure Act 1967 shall be by motion on notice to the Chief State Solicitor grounded on the affidavit of the applicant or (as the case may be) the appellant, in this rule hereinafter referred to as the “applicant”.

(2) Proceedings shall be entitled:

THE HIGH COURT BAIL

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

.V.

AT PRESENT PENDING IN THE... COURT AT.....

or to the appropriate effect.

(3) The affidavit of the applicant shall set forth fully the basis upon which the application is made to the High Court and in particular:

(a) shall give particulars of whether and, if so, in what other Court bail has been refused to the applicant;

(b) shall specify where the applicant is being detained;

(c) shall specify the usual place of abode or address where the applicant normally resides;

(d) shall specify the address at which it is proposed the applicant would reside, if granted bail;

(e) shall provide full particulars of the offence or offences with which the applicant is charged;

(f) shall include the identity, address and occupation of any proposed independent surety and of the amount that such surety may offer;

(g) the terms of bail which were previously fixed in relation to the offences (if any);

(h) whether there had been any previous High Court applications for bail in respect of the offences;

(i) whether any warrants for failure to appear have been issued in relation to the applicant;

(j) what surety and/or other conditions relating to bail (if any) the applicant is proposing;

(k) the personal circumstances of the applicant and in particular whether the applicant was legally aided in relation to the charges in any other Court;

(l) any other relevant circumstances.

(4) Where such an application is made to the Court sitting as the Central Criminal Court or on an appeal under section 28(3) of the Criminal Procedure Act 1967, and the applicant, being legally represented or having obtained legal advice or been given the opportunity of obtaining or being provided with such advice, is agreeable to the application being heard by live television link, averments to the following effect should be incorporated in the affidavit:

“I understand that the Court may give a direction that I may participate in the hearing of my application for bail from [insert name of prison] by means of a live television link, in which event I shall be deemed to be present at the hearing.

I further understand that the Court may not give such a direction unless—

(a) to do so would not be prejudicial to me,

(b) the interests of justice do not require my presence at the hearing,

(c) the facilities provided by a live television link between the court and the prison concerned are such as to enable—

(i) me to participate in and to view and hear the court proceedings

(ii) those present in the court to see and hear me, and

(iii) myself and my legal representative to communicate in confidence during the hearing,

(d) to do so is otherwise appropriate having regard to—

(i) the nature of the application,

(ii) the complexity of the hearing,

(iii) my age, and

(iv) my mental and physical capacity, and

(e) no other circumstances exist that warrant my presence in court.

Having had the opportunity to take legal advice, I confirm that I consent to the Court directing that I participate in the hearing of my application and any appeal in the manner aforementioned.”.

(5) Where such an application is made to the Court otherwise than in accordance with sub-rule (4), and the applicant being legally represented or having obtained legal advice or been given the opportunity of obtaining or being provided with such advice, is agreeable to the application being heard by live television link, averments to the following effect should be incorporated in the affidavit:

“I understand that the Court may give a direction that I may participate in the hearing of my application for bail from [insert name of prison] by means of a live television link, in which event I shall be deemed to be present at the hearing.

I further understand that the Court:

(a) shall not give such a direction unless facilities are available which enable me to see and hear the proceedings at the hearing and to be seen and heard by those present in the courtroom in which the hearing is taking place, and

(b) shall in any event not give such a direction if:

(i) it would be unfair to me to do so, or

(ii) it would be otherwise contrary to the interests of justice to do so.

Having had the opportunity to take legal advice, I confirm that I consent to the Court directing that I participate in the hearing of my application and any appeal in the manner aforementioned.”

(6) Where an applicant has no solicitor, the Court may dispense with the necessity for a notice of motion and affidavit, and in lieu thereof shall give all appropriate directions including a direction that the applicant be brought before the Court, in person or by means of a live television link, on a date and at a time to be specified, of which the Chief State Solicitor shall be notified. The Court may on that date or at any time to which the hearing is adjourned hear the applicant and the Chief State Solicitor for the purpose of giving such directions.

(7) Where an applicant for bail who has participated in the hearing before the High Court by means of a live television link appeals to the Court of Appeal against a refusal of an application for bail, the Court of Appeal may, on the production to it of an affidavit containing the averments mentioned in sub-rule (4) or (5) when the appeal is listed before the Court of Appeal, and confirmation by or on behalf of the appellant that the appellant has not withdrawn his or her consent to participating in the hearing by live television link, give a direction under section 33(2) of the Prisons Act 2007 or, as the case may be, section 26(1) of the Civil Law (Miscellaneous Provisions) Act 2008, and dispense with the necessity for a notice of motion and further affidavit.

(8) The Court of Appeal may in any case hear the appellant (including by live television link) and the Chief State Solicitor for the purpose of considering the giving of such a direction.

(9) References in this rule to the Director of Public Prosecutions shall, where appropriate, be deemed to include references to the Attorney General.

[SI 470/15]

IV. Recognisances

16. Every recognisance acknowledged on the removal of an order, or other proceeding, or for the appearing or answering of any party in the court, or for good behaviour shall, after the acknowledgement thereof, be transmitted to the Central Office and filed there.

17. No recognisance shall be forfeited or estreated without an order of the court. Notice of application for any such order shall be served on the parties by whom such recognisances shall have been given.

V. Judicial review

18. (1) An application for an order of certiorari, mandamus, prohibition or quo warranto shall be made by way of an application for judicial review in accordance with the provisions of this Order.

(2) An application for a declaration or an injunction may be made by way of an application for judicial review, and on such an application the Court may grant the declaration or injunction claimed if it considers that, having regard to—

(a) the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition, certiorari, or quo warranto,

(b) the nature of the persons and bodies against whom relief may be granted by way of such order, and

(c) all the circumstances of the case,

it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.

[SI 691/11]

19. On an application for judicial review any relief mentioned in rule 18(1) or (2) may be claimed as an alternative or in addition to any other relief so mentioned if it arises out of or relates to or is connected with the same matter and in any event the Court may grant any relief mentioned in rules 18(1) or (2) which it considers appropriate notwithstanding that it has not been specifically claimed.

[SI 691/11]

20. (1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.

(2) An application for such leave shall be made by motion ex parte grounded upon—

(a) a notice in Form No 13 in Appendix T containing:

(i) the name, address and description of the applicant,

(ii) a statement of each relief sought and of the particular grounds upon which each such relief is sought,

(iii) where any interim relief is sought, a statement of the orders sought by way of interim relief and a statement of the particular grounds upon which each such order is sought,

(iv) the name and registered place of business of the applicant’s solicitors (if any), and

(v) the applicant’s address for service;

(b) an affidavit, in Form No 14 in Appendix T, which verifies the facts relied on.

Such affidavit shall be entitled:

THE HIGH COURT

JUDICIAL REVIEW

BETWEEN A.B. ... APPLICANT

AND

C.D. ... RESPONDENT

(3) It shall not be sufficient for an applicant to give as any of his grounds for the purposes of paragraphs (ii) or (iii) of sub-rule (2)(a) an assertion in general terms of the ground concerned, but the applicant should state precisely each such ground, giving particulars where appropriate, and identify in respect of each ground the facts or matters relied upon as supporting that ground.

(4) The Court hearing an application for leave may, on such terms, if any, as it thinks fit—

(a) allow the applicant’s statement to be amended, whether by specifying different or additional grounds of relief or otherwise,

(b) where it thinks fit, require the applicant’s statement to be amended by setting out further and better particulars of the grounds on which any relief is sought.

(5) The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

(6) Where leave is sought to apply for an order of certiorari to remove for the purpose of its being quashed any judgment, order, conviction or other proceeding which is subject to appeal and a time is limited for the bringing of the appeal, the Court may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

(7) If the Court grants leave, it may impose such terms as to costs as it thinks fit and may require an undertaking as to damages.

(8) Where leave to apply for judicial review is granted then the Court, should it consider it just and convenient to do so, may, on such terms as it thinks fit—

(a) grant such interim relief as could be granted in an action begun by plenary summons,

(b) where the relief sought is an order of prohibition or certiorari, make an order staying the proceedings, order or decision to which the application relates until the determination of the application for judicial review or until the Court otherwise orders.

[SI 307/13; SI 691/11]

21. (1) An application for leave to apply for judicial review shall be made within three months from the date when grounds for the application first arose.

(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.

(3) Notwithstanding sub-rule (1), the Court may, on an application for that purpose, extend the period within which an application for leave to apply for judicial review may be made, but the Court shall only extend such period if it is satisfied that:—

(a) there is good and sufficient reason for doing so, and

(b) the circumstances that resulted in the failure to make the application for leave within the period mentioned in sub-rule (1) either—

(i) were outside the control of, or

(ii) could not reasonably have been anticipated by

the applicant for such extension.

(4) In considering whether good and sufficient reason exists for the purposes of sub-rule (3), the court may have regard to the effect which an extension of the period referred to in that sub-rule might have on a respondent or third party.

(5) An application for an extension referred to in sub-rule (3) shall be grounded upon an affidavit sworn by or on behalf of the applicant which shall set out the reasons for the applicant’s failure to make the application for leave within the period prescribed by sub-rule (1) and shall verify any facts relied on in support of those reasons.

(6) Nothing in sub-rules (1), (3) or (4) shall prevent the Court dismissing the application for judicial review on the ground that the applicant’s delay in applying for leave to apply for judicial review (even if otherwise within the period prescribed by sub-rule (1) or within an extended period allowed by an order made in accordance with sub-rule (3)) has caused or is likely to cause prejudice to a respondent or third party.

(7) The preceding sub-rules are without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.

[SI 691/11]

22. (1) An application for judicial review shall be made by originating notice of motion save in a case to which rule 24(2) applies or where the Court directs that the application shall be made by plenary summons.

(2) The notice of motion or summons must be served on all persons directly affected.

(2A) Where the application for judicial review relates to any proceedings in or before a court and the object of the application is either to compel that court or an officer of that court to do any act in relation to the proceedings or to quash them or any order made therein—

(a) the judge of the court concerned shall not be named in the title of the proceedings by way of judicial review, either as a respondent or as a notice party, or served, unless the relief sought in those proceedings is grounded on an allegation of mala fides or other form of personal misconduct by that judge in the conduct of the proceedings the subject of the application for judicial review such as would deprive that judge of immunity from suit,

(b) the other party or parties to the proceedings in the court concerned shall be named as the respondent or respondents, and

(c) a copy of the notice of motion or summons must also be sent to the Clerk or Registrar of the court concerned.

(3) A notice of motion or summons, as the case may be, must be served within seven days after perfection of the order granting leave, or within such other period as the Court may direct. In default of service within the said time any stay of proceedings granted in accordance with rule 20(8) shall lapse. In the case of a motion on notice it shall be returnable for the first available motion day after the expiry of seven weeks from the grant of leave, unless the Court otherwise directs.

(4) Any respondent who intends to oppose the application for judicial review by way of motion on notice shall within three weeks of service of the notice on the respondent concerned or such other period as the Court may direct file in the Central Office a statement setting out the grounds for such opposition and, if any facts are relied on therein, an affidavit, in Form No 14 in Appendix T, verifying such facts, and serve a copy of that statement and affidavit (if any) on all parties. The statement shall include the name and registered place of business of the respondent’s solicitor (if any).

(5) It shall not be sufficient for a respondent in his statement of opposition to deny generally the grounds alleged by the statement grounding the application, but the respondent should state precisely each ground of opposition, giving particulars where appropriate, identify in respect of each such ground the facts or matters relied upon as supporting that ground, and deal specifically with each fact or matter relied upon in the statement grounding the application of which he does not admit the truth (except damages, where claimed).

(6) An affidavit giving the names and addresses of, and the places and dates of service on, all persons who have been served with the notice of motion or summons must be filed before the motion or summons is heard and, if any person who ought to be served under this rule has not been served, the affidavit must state that fact and the reason for it; and the affidavit shall be before the Court on the hearing of the motion or summons.

(7) Save in a case to which rule 24(2) applies or where the Court directs that the application shall be made by plenary summons, each party shall, within three weeks of service of the statement referred to in sub-rule (4) or such other period as the Court may direct, exchange with all other parties and file in the Central Office written submissions on points or issues of law which that party proposes to make to the Court on the hearing of the application for judicial review.

(8) The Court may on the return date of the notice of motion, or any adjournment thereof, give directions as to whether it shall require at the hearing of the application for judicial review oral submissions in respect of any of the written submissions of the parties on points or issues of law.

(9) If on the hearing of the motion or summons the Court is of opinion that any person who ought, whether under this rule or otherwise, to have been served has not been served, the Court may adjourn the hearing on such terms (if any) as it may direct in order that the notice or summons may be served on that person.

[SI 345/15; SI 691/11]

23. (1) A copy of the statement in support of an application for leave under rule 20, together with a copy of the verifying affidavit, must be served with the notice of motion or summons and, subject to sub-rule (2), no grounds shall be relied upon or any relief sought at the hearing except the grounds and relief set out in the statement.

(2) The Court may, on the hearing of the motion or summons, allow the applicant or the respondent to amend his statement, whether by specifying different or additional grounds of relief or opposition or otherwise, on such terms, if any, as it thinks fit and may allow further affidavits to be used if they deal with new matters arising out of an affidavit of any other party to the application.

(3) Where the applicant or respondent intends to apply for leave to amend his statement, or to use further affidavits he shall give notice of his intention and of any proposed amendment to every other party.

[SI 691/11]

24. (1) The Court hearing an application for leave to apply for judicial review may, having regard to the issues arising, the likely impact of the proceedings on the respondent or another party, or for other good and sufficient reason, direct that the application for leave should be heard on notice and adjourn the application for leave on such terms as it may direct and give such directions as it thinks fit as to the service of notice of the application for leave (and copies of the statement of grounds, affidavit and any exhibits) on the intended respondent and on any other person, the mode of service and the time allowed for such service.

(2) The Court may—

(i) with the consent of all of the parties, or

(ii) on the application of a party or of its own motion, where there is good and sufficient reason for so doing and it is just and equitable in all the circumstances,

treat an application for leave as if it were the hearing of the application for judicial review and may—

(I) adjourn the hearing of the application on such terms as it may direct,

(II) give directions as to the time within which submissions in writing of the parties on points or issues of law shall be exchanged between the parties and filed in the Central Office,

(III) on any date to which the application has been adjourned, give directions as to whether it shall require at the hearing of the application for judicial review oral submissions in respect of any of the submissions in writing of the parties on points or issues of law, or

(IV) give any direction and make any order referred to in sub-rule (3) for which provision is not made in this sub-rule.

(3) On the hearing of an application for leave directed to be on notice or for judicial review (or on any adjournment of such hearing), the Court may give directions and make orders for the conduct of the proceedings as appear convenient for the determination of the proceedings in a manner which is just, expeditious and likely to minimise the costs of those proceedings which, where appropriate, may include:

(a) directions as to the service of notice of the application or of the proceedings on any other person, including mode of service and the time allowed for such service (and the Court may for that purpose adjourn the hearing or further hearing of the application or notice of motion to a date specified);

(b) directions as to the filing and delivery of any further affidavits by any party or parties;

(c) orders fixing time limits;

(d) directions as to discovery;

(e) directions as to the exchange of memoranda between or among the parties for the purpose of the agreeing by the parties or the fixing by the Court of any issues of fact or law to be determined in the proceedings on the application, or orders fixing such issues;

(f) an order under rule 27(5) or rule 27(7) (and the Court may for that purpose make orders and give directions in relation to the exchange of pleadings or points of claim or defence between the parties);

(g) directions as to the furnishing by the parties to the Court and delivery of written submissions;

(h) directions as to the publication of notice of the hearing of the application and the giving of notice in advance of such hearing to any person other than a party to the proceedings who desires to be heard on the hearing of the application.

[SI 691/11]

25. (1) On an application for judicial review the Court may, subject to sub-rule (2), award damages to the applicant if—

(a) he has included in the statement in support of his application for leave under rule 20 a claim for damages arising from any matter to which the application relates, and

(b) the Court is satisfied that, if the claim had been made in a civil action against any respondent or respondents begun by the applicant at the time of making his application, he would have been awarded damages.

(2) Order 19, rules 5 and 7, shall apply to a statement relating to a claim for damages as it applies to a pleading.

[SI 691/11]

26. (1) Any interlocutory application may be made to the Court in proceedings on an application for judicial review. In this rule ‘interlocutory application’ includes an application for an order under Order 31, or Order 39, rule 1, or for an order dismissing the proceedings by consent of the parties.

(2) Where the relief sought is or includes an order of mandamus, the practice and procedure provided for in Order 57 shall be applicable so far as the nature of the case will admit.

[SI 691/11]

27. (1) On the hearing of an application under rule 22, or an application which has been adjourned in accordance with rule 24(1), any person who desires to be heard in opposition to the application, and appears to the Court to be a proper person to be heard, shall be heard, notwithstanding that he has not been served with notice of the application.

(2) Where the relief sought is or includes an order of certiorari to remove any proceedings for the purpose of quashing them, the applicant may not question the validity of any order, warrant, committal, conviction, inquisition or record, unless before the hearing of the motion or summons he has lodged in the High Court a copy thereof verified by affidavit or accounts for his failure to do so to the satisfaction of the Court. If necessary, the court may order that the person against whom an order of certiorari is to be directed do make a record of the judgment, conviction or decision complained of.

(2A) Without prejudice to the generality of sub-rule (2), the Court may, at any time, where it deems fit, in any case where the relief sought relates to any proceedings in or before a court:

(a) direct the applicant to procure and lodge in Court or exhibit a transcript of the record of the proceedings before that court, or

(b) direct the production to it by the Registrar or Clerk of that court of the record of the proceedings before that court.

(3) Where an order of certiorari is made in any such case as is referred to in sub-rule (2), the order shall, subject to sub-rule (4), direct that the proceedings shall be quashed forthwith on their removal into the High Court.

(4) Where the relief sought is an order of certiorari and the Court is satisfied that there are grounds for quashing the decision to which the application relates, the Court may, in addition to quashing it, remit the matter to the Court, tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the Court.

(5) Where the relief sought is a declaration, an injunction or damages and the Court considers that it should not be granted on an application for judicial review but might have been granted if it had been sought in a civil action against any respondent or respondents begun by plenary summons by the applicant at the time of making his application, the Court may, instead of refusing the application, order the proceedings to continue as if they had been begun by plenary summons.

(6) Where the relief sought is or includes an order of mandamus, the proceedings shall not abate by reason of the death, resignation or removal from office of the respondent but they may, by order of the Court, be continued and carried on in his name or in the name of the successor in office or right of that person.

(7) At any stage in proceedings in prohibition, or in the nature of quo warranto, the Court on the application of any party or of its own motion may direct a plenary hearing with such directions as to pleadings, discovery, or otherwise as may be appropriate, and thereupon all further proceedings shall be conducted as in an action originated by plenary summons and the Court may give such judgment and make such order as if the trial were the hearing of an application to make absolute a conditional order to show cause.

[SI 345/15; SI 691/11]

VI. General

28. The forms in Appendix T shall be used in all proceedings under this Order.

[SI 691/11]

29. Where a certificate referred to in section 96(4) of the Criminal Justice Act, 2006 requires to be issued otherwise than on the determination of an appeal, such certificate shall be in the Form No 28 in Appendix U with such modifications as may be appropriate, and shall be transmitted forthwith by or on behalf of the Registrar to each of the persons referred to in section 96(6) of that Act.

[SI 691/11]

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