L.A. v Chief Appeals Officer - Social Welfare Judicial Review

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  L.A. v The Chief Appeals Officer & Ors (Approved) [2026] IESC 22 (25 March 2026)

URL: https://www.bailii.org/ie/cases/IESC/2026/2026IESC22DonnellyJ.html
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AN CH?IRT UACHTARACH

THE SUPREME COURT

[2026] IESC 22

Supreme Court Record No.: S:AP:IE:2025:000080

Court of Appeal Record No.: A:AP:IE:2024:000236

High Court Record No.: 2023/216 JR

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O'Donnell CJ.

Charleton J.

Woulfe J.

Murray J.

Donnelly J.

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Between/

LACRAMIOARA AMARIEI

Appellant

AND

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THE CHIEF APPEALS OFFICER, THE SOCIAL WELFARE APPEALS OFFICE AND THE MINISTER FOR SOCIAL PROTECTION

Respondents

JUDGMENT of Ms. Justice Donnelly delivered on the 25 th of March 2026

1. Judicial review is a vital public law safeguard for upholding the rule of law by ensuring that administrative decision makers exercise their powers in accordance with the law and the Constitution.? Broadly speaking, judicial review provides a citizen or individual who interacts with the administrative arm of the State with access to a court so that grievances and complaints concerning the legality of decisions against their interests can be adjudicated upon.? Judicial review contrasts with an appeal on the facts because it is not concerned with the merits of the decision; it is concerned with its legality.

2. In modern Ireland, the breadth of the State's administrative reach is staggering.? On a daily basis, there are probably hundreds, if not thousands, of decisions being taken on individual applications across a wide range of areas by various branches of the State's administration (central or local). ?Examples include decisions concerning social protection entitlements, tax obligations, planning and development matters, valuation of property, immigration and asylum matters, agriculture/fishing entitlements, and many other regulatory and licensing areas.? There is no single type of decision-making structure that covers all such administrative decisions and, with great relevance to these proceedings, there is no single type of appellate structure.

3. Good administrative practice makes provision for an appellate procedure.? Depending on the nature of the issue involved, this can include internal administrative appeal processes or an appeal to some structured appellate body.? The latter bodies, while not necessarily administering justice, may be quasi-judicial bodies with a requirement to act judicially.? Some appellate structures, such as the Workplace Relations Commissions (as a statutory body it is subject to judicial review although it may be dealing with private law disputes), are involved in the administration of justice.? Many, but not all, administrative decision-making structures provide for an appeal to the courts on a point of law while some permit an appeal on the facts which may or may not involve a complete rehearing of the case.?

4. It is well-established and was not contested, nor could it have been contested, that where there is an adequate remedy by way of an alternative appeal then recourse to judicial review may be disallowed. ?This appeal raises the question of how that fundamental principle operates in the statutory regime of appeals and revisions set out in the Social Welfare Consolidation Act, 2005 ("the 2005 Act").? To answer that question, it will be necessary to examine the origin of and the rationale for the development of the fundamental principle that an applicant for judicial review may be required to first exhaust an adequate alternative remedy.

The Determination Granting Leave to Appeal

5. This appeal is concerned with Part 10 of the 2005 Act and the exhaustion of adequate alternative remedies provided thereunder before bringing an application for judicial review.? The determination of this Court published on 30 July 2025 ([2025] IESCDET 109) identified the issue in this appeal as follows:

"Where an applicant for a social welfare benefit or allowance is dissatisfied with the decision of an Appeals Officer, what effect does a) the availability of an application to the Chief Appeals Officer under s. 318 and b) the possibility of a statutory appeal under s. 327, have on the entitlement to proceed by way of an application for judicial review of the Appeals Officer's decision?"

Part 10 of the Social Welfare (Consolidation) Act, 2005

6. Part 10 of the 2005 Act sets out a detailed code for the revision of, and appeals against, decisions made thereunder.? The most relevant of these are addressed in the following paragraphs.

7. Pursuant to s. 300 of the 2005 Act, every question on entitlement to social insurance, social assistance and other payments under what can be termed the general heading of social protection, is to be decided by a deciding officer.? Revision of those decisions can take place under s. 301 where, inter alia, it appears to the deciding officer that the decision was erroneous (a) in light of new evidence or new facts brought to their attention since the date on which the decision was given or, (b) by reason of some mistake having been made in relation to the law or the facts.

8. Where the person is dissatisfied with the decision of the deciding officer an appeal may be brought.? The procedure requires that a notice of appeal be sent to the Chief Appeals Officer who then assigns an appeals officer to the appeal.? Under s. 311, where the matter is referred to an appeals officer, the appeals officer, in deciding the question, is not confined to the grounds on which the decision was based but may decide the question as if it were being decided for the first time.

9. For the purposes of this appeal ss. 317, 318 and 327 of the 2005 Act are of particular importance.

10. Section 317 allows for revision of a decision of an appeals officer by an appeals officer, and in so far as is relevant provides:

"(1) An appeals officer may at any time revise any decision of an appeals officer?

(a) where it appears to him or her that the decision was erroneous in the light of new evidence or new facts which have been brought to his or her notice since the date on which it was given, or

(b) where?

(i) the effect of the decision was to entitle a person to any benefit within the meaning of section 240, and

(ii) it appears to the appeals officer that there has been any relevant change of circumstances which has come to notice since that decision was given."

11. What is apparent from s. 317 is that, unlike the s. 301 provision for revision by a deciding officer, s. 317 is only directed towards revision where new evidence or new facts are produced or where there is a relevant change in circumstances.? By contrast, the second limb provided for in s. 301 (i.e. revision for mistake) is, in accordance with s. 318, assigned to the Chief Appeals Officer.?

12. Section 318 provides that "[t]he Chief Appeals Officer may, at any time, revise any decision of an appeals officer, where it appears to the Chief Appeals Officer that the decision was erroneous by reason of some mistake having been made in relation to the law or the facts."

13. Section 327 makes provision for a statutory appeal on a point of law to the High Court.

"Any person who is dissatisfied with?

(a) the decision of an appeals officer, or

(b) the revised decision of the Chief Appeals Officer,

may appeal that decision or revised decision, as the case may be, to the High Court on any question of law."

Background

14. The appellant in this case availed of her right to appeal up to and including a request for revision under s. 317.? The review was not successful.? She then brought judicial review proceedings against that refusal.? The factual history of the appellant's application for disability allowance may be quickly stated.? On 14 June 2022, she was notified that the deciding officer had refused her application of 6 April 2022 on the basis that she did not satisfy the medical criteria.? The appellant appealed this decision, and it was referred to an appeals officer under s. 311.? On 22 September 2022, the appeal was disallowed by an appeals officer on two grounds; (1) she did not satisfy the medical criteria and, (2) her means were in excess of the qualifying amount.? The appellant sought a review of this decision.? The appeals officer carried out this review pursuant to s. 317 of the 2005 Act.? By letter dated 21 December 2022, the appellant was informed that the appeals officer upheld his decision.? That is the decision under challenge.

The High Court Proceedings

15. On 15 May 2023, the High Court (Meenan J.) granted the appellant leave to apply by way of an application for judicial review.

16. The respondents made a preliminary objection to the hearing of the application on the basis that the appellant should have sought a revision of the impugned decision by the Chief Appeals Officer pursuant to s. 318 of the 2005 Act.

17. On 28 March 2024, the High Court (Owens J.) delivered judgment in the matter ([2024] IEHC 187).? On the substantive issues, Owens J. found that the appeals officer had erred in the manner in which he made his determination on the issue relating to the appellant's means.? However, with respect to whether the appellant met the requisite medical qualifying condition, Owens J. found that the appeals officer had not erred in law and that his decision on this issue was not irrational.? The High Court however, made an order setting aside the appeals officer's conclusion on the issue of the appellant's means and remitted that discrete issue for reconsideration.

18. With respect to the procedure objection, Owens J., in agreeing with the judgment in T v Minister for Social Protection [2023] IEHC 763, determined that an applicant's omission to seek a revision under s. 318 was not a good reason to refuse to entertain an application for judicial review of an appeals officer's decision.? He held that a requirement to seek a revision under s. 318 would not be consistent with the statutory right of appeal provided for by s. 327.? It was found that the Act does not require an applicant to avail of the s. 318 revision procedure as a pre-condition to exercising their right to a statutory appeal under s. 327.? Owens J. held that it followed that when the High Court is making a determination to hear a judicial review application, it is not required to consider the fact that the s. 318 review has not been utilised by an applicant.? The respondents' objection on this ground was therefore rejected.

19. Regarding the statutory appeal pursuant to s. 327, Owens J. noted that the section gives the High Court jurisdiction to determine most issues of law which are likely to arise from appeals officers' decisions.? On this basis, the trial judge observed that the Court may have erred in T v Minister for Social Protection when it concluded that an applicant who is dissatisfied with legality of an appeals officer's decision may elect to proceed by way of judicial review, rather than by way of statutory appeal.? The Court did not engage with this issue further and proceeded to hear the application despite these comments.

The Court of Appeal Judgment [2025] IECA 54

20. On 5 March 2025, Anthony Collins J. (with whom Meenan and Hyland JJ. agreed), allowed the respondents' appeal.? Collins J. commenced his analysis by considering the nature and scope of the statutory remedy provided by s. 318.? He found at para [23] that "the range of matters the Chief Appeals Officer can assess goes well beyond the scope of judicial review".? The Court considered that the remedy provided by s. 318 "appears capable of engaging almost any issue of fact or law that might possibly bear upon the correctness of the decision under challenge."? Collins J. held that the High Court fell into error by failing to consider the question of "whether the [appellant] could have availed of another equally, if not more, appropriate procedure".?

21. The Court expressed doubts over the correctness of the decision in T v Minister for Social Protection.? Collins J. noted that the judgment did not refer to certain important authorities and raised the possibility that the case was decided per incuriam.? In T v Minister for Social Protection, Heslin J. found that s. 318 was not an alternative remedy since the Chief Appeals Officer had not exercised the s. 318 power of his own motion in that case.? Collins J. held that it did not follow from the fact that s. 318 could be exercised on the Chief Appeals Officer's own motion that the section would not afford an applicant an effective alternative remedy.? The Court also held that any issue regarding the notification of the appellant of the s. 318 procedure did not arise on the evidence in the present case.

22. Having considered the substantive issues of the case, the Court found that the complaints raised by the appellant were capable of being addressed by the review procedure set out in s. 318.? Collins J. held that since recourse to the statutory procedure for the correction of error was adequate to meet the complaints on which the application for certiorari was grounded, the remedy of judicial review was unavailable to the appellant.

23. The Court observed that while the appellant's case could be analysed within the judicial review framework, the fundamental issues raised by her concerned assertions that the appeals officer erred in fact, law, and mixed questions of fact and law. ?Collins J. stated that these were the exact types of matters that s. 318 was designed to resolve. ?Thus, it was held that relief sought by way of judicial review was not capable of providing an effective remedy in regard to all of the issues raised by the appellant.

24. Collins J. further noted that the appellant had the option of seeking a review under s. 318 or alternatively could appeal the impugned decision on a question of law to the High Court pursuant to s. 327.? He stated at para [31] that "[w]hilst the issue is not before this Court, the availability of these two routes to persons who seek to challenge the legality of such decisions raises a significant question mark over whether they can be permitted to make that case by way of judicial review."

25. The Court allowed the appeal and dismissed the proceedings.? In a short ruling on costs delivered on 14 May 2025, the Court determined that no order for costs should be made in respect of the High Court or the Court of Appeal proceedings ([2025] IECA 100).

The Appeal

The Issues

26. The principle that an applicant should not seek relief from the High Court before first exhausting adequate alternative remedies was given clear articulation by this Court in The State (Abenglen Properties) v Corporation of Dublin [1984] IR 381 (" Abenglen "). ?That general proposition was not disputed by the appellant. ?Judicial review is a discretionary remedy, and the foregoing principle can be framed in the following manner: where an adequate alternative remedy exists the court will, usually, exercise its discretion not to grant relief (or to refuse leave to apply for judicial review as set out in G v Director of Public Prosecutions [1994] 1 IR 374).

27. The use of the term discretion, in the sense of judicial discretion, is strictly delineated.? As O'Donnell J. (as he then was) said in Kelly v Minister for Agriculture [2023] 1 IR 38, [2021] IESC 62: "The fact that the remedies involved are discretionary does not, however, mean that a court is at large, or is free to take into account its views on the underlying merits." ?When used in the context of a ground to refuse judicial review it is a vital consideration that "the circumstances which allow the court not to make an order which would otherwise be justified must be such as to derive from an important constitutional or legal value of sufficient weight to warrant not making an order otherwise justified" (Clarke J. (as he then was) in Christian v Dublin City Council [2012] 2 IR 506, [2012] IEHC 163 at 567).?

28. This appeal brings up issues concerning:

i. what constitutes an adequate alternative remedy;

ii. on whom does the onus lie to demonstrate that the remedy proposed is actually adequate;

iii. whether the existence of an adequate alternative remedy gives rise to the default position that judicial review does not lie in those circumstances; and,

iv. specific issues regarding the social welfare system of appeals and revisions.

29. The parties pointed to the decision of this Court in Abenglen as providing the first major authoritative statement of the principle that there was a requirement to exhaust alternative remedies.? A brief overview of the authorities on the availability of judicial review remedies prior to Abenglen is helpful to understand the significance of the direction the Supreme Court was taking.

The Context in which Abenglen was Decided

30. Prior to Abenglen, a uthorities on the effect of alternative remedies in the late 1970s were divided on the question of whether there should be a refusal of judicial review if the impugned decision was ultra vires but an alternative remedy existed. ?In Ingle v O'Brien (1975) 109 ILTR 7, Pringle J. held that the impugned decision was null and void for the reason that the applicant was not given an opportunity to be heard, a breach of the audi alteram partem rule.? The respondents in that case sought to argue that as the applicant had not exercised his statutory right to appeal, certiorari did not lie.? However, Pringle J. rejected that submission with reference to the judgment of the High Court of England and Wales (Megarry J.) in Leary v National Union of Vehicle Builders [1971] 1 Ch 34 (" Leary "): ** "As a general rule ... I hold that a failure of natural justice in the trial body cannot be cured by a ** sufficiency of natural justice in an appellate body" (at page 49).

31. In Leary, Megarry J. had concerns about accepting the contention that a defect of natural justice in the trial body could be cured by the presence of natural justice in the appellate body as this would result in the deprivation of an appeal from that appellate body.

32. In this jurisdiction, in Moran v Attorney General [1976] IR 400, Doyle J. followed Ingle v O'Brien in approving the statements made at page 49 in Leary. ?Doyle J. held that it followed that the purported revocations of the taxi licenses in that case were null and void for the reason that the plaintiffs were given no opportunity to state their case as to why the revocations ought not to have been made.

33. The decision in Leary was not the final word in the courts of the United Kingdom of Great Britain and Northern Ireland ("the UK") prior to the decision in Abenglen.? In Calvin v Carr [1980] AC 574, the Privy Council (Lord Wilberforce) thought that Megarry J. had stated the principle too broadly.? That case involved an alleged breach of natural justice before the stewards of the Australian Jockey Club and an appeal to the Committee of the Club in accordance with the Club's Rules of Racing.? Rejecting a claim that the original decision was void and thus, the appellate body had no jurisdiction to entertain the appeal, Lord Wilberforce said at page 590:

"In the present context, where the question is whether an appeal lies, the impugned decision cannot be considered as totally void, in the sense of being legally non-existent. So to hold would be wholly unreal" (emphasis added).

34. The Privy Council emphasised that these reservations applied to disputes which have to be settled by an agreed procedure under contractual rules. ?While Wade in Administrative Law (5th edn, OUP 1982) viewed those situations as "outside administrative law, since they do not concern governmental action" the absolute view set out in Leary was no longer in the ascendency. ?Indeed, Wade & Forsyth's Administrative Law (12th edn, OUP 2022) mentions neither of these cases in discussing how judges remain reluctant to allow judicial review where there is an adequate remedy (from page 574 onwards).?

35. In Ireland, a different approach to that of Megarry J. in Leary was taken by Gannon J. in The State (Stanbridge) v Mahon [1979] IR 214.? The applicants in that case had both plead guilty to the relevant charges.? Prior to sentencing, the Garda? provided incorrect information to the District Court concerning the applicants' previous convictions.? The applicants sought to have their convictions quashed as a result of this error.? Gannon J. declined to quash the orders of convictions.? The applicants had both plead guilty, and the irregularities were open to correction on appeal to the Circuit Court, where there would be a de novo rehearing. ?Gannon J. stated at page 220:

" Undoubtedly the matter can be put right on such appeal which is a complete re-hearing at which these aspects can be dealt with properly.? Nevertheless, each [applicant] now submits that an order made in breach of fundamental principles of justice - however regular on its face - is a bad order and should be quashed as of right.? In support he relies on The State (Vozza) v O Floinn.? But in that case the order was one which was made without jurisdiction.? In the cases now under consideration the orders of conviction were made within jurisdiction.? These orders of the respondents are now challenged on the ground that they offend against basic principles of justice so as to vitiate not only the sentences but also the convictions.? Because of the facts that both [applicants] confessed their guilt when charged in the District Court, there is substantial reason why this Court, being so informed of the grounds to support the convictions, should not disturb the convictions.? Both these cases appear to me to be ones in which it is proper to exercise the discretion of the Court to decline to quash the orders of conviction since the irregularities (in relation to the consideration of matters material to the sentences) are open to correction on the hearing of the appeals from the orders, which appeals are still pending in the Circuit Court " (emphasis added).

36. In State (Roche) v Delap [1980] IR 170 , this Court, despite being satisfied that there was a jurisdictional error on the face of the order of conviction and sentence of the District Court record, held that certiorari did not lie. ?The case was unusual because an appeal had been taken to the Circuit Court and was in the process of being heard when the applicant opted to seek judicial review of the defective District Court order.? The Circuit Court had jurisdiction to make a fresh order which would correctly show jurisdiction and which would confirm, vary or reverse the sentence.? Henchy J. referred approvingly to R (Miller) v Justices of Monaghan (1906) 40 ILTR 51 in which it was stated definitively that "certiorari does not lie while an appeal is pending". ?On one reading of the judgment of Henchy J. he seemed to accept the broad reach of that decision, saying that the case had shown "that [the applicant] should have elected either for appeal or for certiorari."? Henchy J. went on to say however, that it was not within the competence of the High Court to intervene by certiorari to quash a conviction and sentence when an appeal had not alone been taken to the Circuit Court, but that appeal was actually in the process of being heard.? State (Roche) v Delap highlights an important aspect of the discretion to refuse judicial review for failure to exhaust an alternative remedy; even when the entitlement to certiorari is otherwise established, the court will refuse to grant it where there is an alternative remedy.? That, as will be discussed further below, is of importance in the exercise of the discretion to grant leave to apply for judicial review where there is an alternative remedy.

37. In Stefan v Minister for Justice [2001] 4 IR 203, [2001] IESC 92, which will be discussed in more detail below, this Court (Denham J., as she then was) distinguished State (Roche) v Delap on the grounds that the appeal by Mr Stefan had been lodged but not opened.? The Court said that the stage reached in the alternative remedy may be relevant, though it was not determinative.

38. In Abenglen, O'Higgins CJ. addressed the effect the existence of a right of appeal would have on the exercise of a discretion to grant certiorari in his well-known passage as follows (at page 393):

"The question immediately arises as to the effect of the existence of a right of appeal or an alternative remedy on the exercise of the court's discretion. It is well established that the existence of such right or remedy ought not to prevent the court from acting. It seems to me to be a question of justice. The court ought to take into account all the circumstances of the case, including the purpose for which certiorari has been sought, the adequacy of the alternative remedy and, of course, the conduct of the applicant. If the decision impugned is made without jurisdiction or in breach of natural justice then, normally, the existence of a right of appeal or of a failure to avail of such, should be immaterial. Again, if an appeal can only deal with the merits and not with the question of the jurisdiction involved, the existence of such ought not to be a ground for refusing relief. Other than these, there may be cases where the decision exhibits an error of law and a perfectly simple appeal can rectify the complaint, or where administrative legislation provides adequate appeal machinery which is particularly suitable for dealing with errors in the application of the code in question. In such cases, while retaining always the power to quash, a court should be slow to do so unless satisfied that, for some particular reason, the appeal or alternative remedy is not adequate" (emphasis added).

39. While O'Higgins CJ. set out the important principle, it is apparent that he is not describing a bright line rule.? Where the jurisdiction of the decision-maker is at issue, but the appeal cannot deal with jurisdictional issues, O'Higgins CJ. indicated that an appeal would not appear to be adequate. ?So too where the decision was made "in breach of natural justice".? Walsh J. also opined that there was no doubt that the existence of alternative remedies was not a bar to the making of an order of certiorari.? He said, however, that a court's discretion cannot be exercised to produce or permit a punitive or damaging result to be visited upon an application as a mark of the court's disapproval or displeasure when such a result flows from, or is dependent upon, an order which is bad in law.

40. The question of when a tribunal may be said to have made an error within jurisdiction played a significant role in the judgment delivered by Henchy J. in Abenglen.? His judgment was supported by a majority and thus represents the judgment of this Court. ?It is important to look at what was decided by Henchy J.? He gave three reasons for refusing an order of certiorari.

i. Certiorari did not lie because of the limits of judicial review to challenge errors in excess of jurisdiction (errors, if they be errors, in construing the development plan were errors within jurisdiction).? As I will discuss shortly, it is not clear if Henchy J. was accepting the principle, probably best articulated in an Irish context in R (Martin) v Mahony [1910] 2 IR 695, that if the court/tribunal had jurisdiction to enter into consideration of the matter, then it had a jurisdiction not only "to go right" but also "to go wrong" (Lord O'Brien CJ.).? I will discuss that briefly below.

ii. Even if certiorari did lie, it ought to be refused as a matter of discretion because no benefit would accrue to the applicant.

iii. If there were errors, the correction of those errors lay in an appeal to An Bord Plean?la.? This was the alternative remedy which gave discretion to the Court to refuse certiorari.

41. Strictly speaking therefore, the dicta of Henchy J. on adequate remedies was obiter but there is no doubting its authority as it led to a shift in judicial attitudes to making orders of certiorari where another remedy was available and adequate.

42. Exploring the reason why an appeal was appropriate, Henchy J. pointed to the various features of the relevant statute, including the nature of the appeal hearing and the fact that any decision could only be challenged by legal proceedings within two months thereof.? His view was that "[t]hose and other features of the Acts envisage the operation of a self-contained administrative code, with resort to the Courts only in exceptional circumstances."? He held that the case did not exhibit those circumstances, and certiorari would be singularly inapt.? He referred to the practice in the United States, although not necessarily endorsing it all, where, inter alia, it "is only in cases of unusual hardship and in the furtherance of justice that the use of the writ of certiorari is permitted to supplement the method of review expressly provided by statute " (emphasis in judgment). ?Henchy J. then stated:

"[W]here Parliament has provided a self-contained administrative and quasi-judicial scheme, postulating only a limited use of the Courts, certiorari should not issue when, as in the instant case, use of the statutory procedure for the correction of error was adequate (and, indeed, more suitable) to meet the complaints on which the application for certiorari is grounded."

43. In my view however, it is also apparent that Abenglen was decided in the context of the growth of administrative decision-making across a wide range of areas, not least of which was the significant developments in the relatively complex, yet self-contained, area of planning and development law.? Moreover, the courts were more willing to intervene where there had been a violation of the guarantee under the Constitution of basic fairness of procedures (Kiely v Minister for Social Welfare [1977] IR 267).? Furthermore, it cannot be ignored that the limitations on the availability of certiorari were being loosened if not jettisoned entirely.???

44. In the State (Holland) v Kennedy [1977] IR 193 (which was decided prior to Abenglen), this Court did not directly address the seismic House of Lords decision in Anisminic v Foreign Compensation Commission [1969] 2 AC 147 (" Anisminic ") which held that where a decision maker reaches a wrong conclusion as to the width of their powers "the court must be able to correct that - not because the tribunal has made an error of law, but because as a result of making an error of law they have dealt with and based their decision on a matter with which, on a true construction of their powers, they had no right to deal."? State (Holland) v Kennedy concerned the sentencing power of the District Court to imprison 'a young person' aged between 15 to 17 where the court certified that the person was of so unruly a character that they could not be detained in a place of detention. ?The District Court had granted the certificate on the basis of evidence of the alleged assault without further enquiry as to the general character of the person.?

45. Henchy J. in State (Holland) v Kennedy opined that "it does not necessarily follow that a court or a tribunal, vested with powers of a judicial nature, which commences a hearing within jurisdiction will be treated as continuing to act within jurisdiction. For any one of a number of reasons it may exceed jurisdiction and thereby make its decisions liable to be quashed on certiorari."? Later in his judgment, Henchy J. said that a legally supportable certificate (that the 15 to 17 year old was of 'unruly character') was a condition precedent to the exercise of jurisdiction to impose a sentence of imprisonment.? The words in italics would appear to distinguish that case from that of Anisminic (see Daly, 'Judicial Review of Errors of Law in Ireland' (2006) 41(1) Irish Jurist 60).? While that would explain how Henchy J. could conclude in Abenglen that certiorari did not lie because of the limits of judicial review to challenging errors within jurisdiction, nonetheless it appears that it was a shift towards greater scrutiny of jurisdictional grounds. ?Furthermore, Kenny J. in State (Holland) v Kennedy, questioned whether the principle in R (Martin) v Mahony that the High Court would not grant certiorari when there was no evidence on which the accused could be found guilty was still the law having regard to Article 38 of the Constitution.? There have been other cases such as Killeen v DPP [1997] 3 IR 218 and Buckley v Kirby [2000] 3 IR 431, [2000] IESC 18 (discussed further below) in which this Court cited with approval the dicta of Lord O'Brien CJ. in the context of challenges based purely on absence of evidence.? In Killeen v DPP however, this Court also embraced the decision in Anisminic.

46. The "constant refrain" of the authors of Administrative Law in Ireland over many editions has been that the "courts have not provided authoritative answers to important questions that arise in the area of jurisdictional error" (5th edn, Round Hall 2019, [10-54]). ?That refrain may continue because it is not within the scope of this appeal to resolve those issues.? I refer to this debate only to demonstrate that the Court at the time of Abenglen was at least alive to the fact that the limitations of certiorari were being challenged and, if removed, would greatly increase the number of judicial review applications.? It is equally the case that appeals to the courts were increasing across a range of decision-making areas of which the Road Traffic Act, 1961 Regulations in respect of public service vehicles, and the Unfair Dismissals Act, 1977 were but two notable examples.

47. All of this sets the scene for the development of a discretionary bar to the grant of certiorari where an adequate alternate remedy exists.? In his judgment in Abenglen, the Chief Justice discussed the origins of the remedy of certiorari as a means of superintendence and control by the Court of King's Bench over the exercise of their jurisdiction by justices of the peace, thus, ensuring uniform application of the law throughout the country.? He described how at the outset such a remedy was open to everyone, even a stranger to the proceedings, but from early on the court exercised a discretion as to whether relief would be granted, for example where the person was aggrieved by the exercise of the power. ?He also pointed to the limited circumstances in which the court would interfere.?

48. O'Higgins CJ. described how the remedy of certiorari had evolved from its origins to extend beyond control of judicial processes stating:

"To-day it is the great remedy available to citizens, on application to the High Court, when any body or tribunal (be it a court or otherwise), having legal authority to affect their rights and having a duty to act judicially in accordance with the law and the Constitution, acts in excess of legal authority or contrary to its duty ... [Certiorari ] is not available to correct errors or to review decisions or to make the High Court a court of appeal from the decisions complained of.? In addition it remains a discretionary remedy."

The Rationale for the Principle

49. An exploration of the breadth of the principle of 'exhaustion of adequate alternative remedies' is assisted by an understanding of the rationale behind it.? At the request of the Court, the parties made submissions as to that rationale.? While mainly similar reasons were identified, the parties had differences in emphasis.? According to the appellant, at the most basic public policy level, the rationale is to encourage the resolution of disputes through more informal and less costly channels, and to focus precious judicial resources on cases that have gone through those channels without a satisfactory resolution. ?The appellant emphasised the discretion of the Court, that it was not an inflexible rule, that each case must be determined on its own facts and in a manner that serves the justice of the case, and that any other interests, including the public interest, ought to be considered. ?The appellant submitted that the rationale she proposed was consistent with the findings of Costello J. (as she then was) in Spencer Place Development Co Ltd v Dublin City Council [2020] IECA 268 and also Hyland J. in B v Chief Appeals Officer [2025] IECA 138.? According to the appellant, other values are also engaged, such as confidence in the judicial and administrative processes. ?She also referred to R (Glencore Energy UK Ltd) v Revenue and Customs Commissioners [2017] 4 WLR 213, [2017] EWCA Civ 1716 and R (Ibrar) v Dacorum Borough Council [2022] EWHC 3425 (Admin).

50. Referring to case law, the respondents grounded the rationale in accordance with the rule of law, the constitutionally mandated separation of powers and related principles of judicial restraint. ?It was submitted that the courts should give effect to the provisions of legislation enacted by the Oireachtas which provide an adequate alternative remedy by refusing to grant leave to apply for judicial review, or, if leave has been granted, by dismissing the proceedings.

51. What clearly emerges from the case law relied upon by the parties is that the rationale for the principle is multifaceted.

52. The first rationale and one of considerable importance is that identified by Henchy J. in Abenglen.? That is the giving of effect to legislation enacted by the Oireachtas.? This rationale has also been referred to in other decisions.? In relation to a full statutory appeal, Hogan J. said in Koczan v Financial Services Ombudsman [2010] IEHC 407 (" Koczan ") "[t]hat in turn suggests that the Oireachtas further intended that the statutory appeal would form the vehicle whereby the entirety of an appellant's arguments could be ventilated in such an appeal without any need to commence a further set of proceedings ...". ?In the UK, treating judicial review as a remedy of last resort "ensures the courts give priority to statutory procedures as laid down by Parliament, respecting Parliament's judgment about what procedures are appropriate for particular contexts" (per the Court of Appeal of England and Wales at para [56] in R (Glencore Energy UK Ltd) v Revenue and Customs Commissioners approved by the UK Supreme Court in Re McAleenon [2025] AC 1362, [2024] UKSC 31).

53. A second rationale, which is related to the first, is that there may be advantages in having an appeal over judicial review.? ?Specialist tribunals may have been established to deal with specific cases and contexts.? In Abenglen, O'Higgins CJ. referred to "adequate appeal machinery which is particularly suitable for dealing with errors in the application of the code in question" (emphasis added). ?Finlay CJ. in O'Keeffe ** v An Bord Plean?la [1993] 1 IR 39 described An Bord Plean?la as a body which is "expected to have special skill, competence and experience in planning questions." ?Such deference to specialist bodies does not extend to "sanctioning breaches of the rules as to jurisdiction or the bypassing of the tribunal of the obligation to incorporate fair procedures" (EMI Records (Ireland) Ltd v Data Protection Commissioner [2013] 2 IR 669, [2012] IEHC 264 at para [20]). ?

54. A related point to this particular rationale is that the range of matters that an appellate body may deal with is often wider than that available in judicial review.? In Ballyedmond v Commissioner for Energy Regulation [2006] IEHC 206, Clarke J., having discussed how the deference of the courts to expert bodies may in general terms be equally applicable in judicial review, noted that "the circumstances in which it may be possible to successfully obtain an order of certiorari may be more limited than those in which it may be proper for a court which [sic] to allow an appeal in circumstances where the court is given an express statutory jurisdiction to deal with an issue by way of appeal where that appeal is confined to a point of law." ?This point was also made in Koczan.? An appeal will avoid difficult jurisdiction questions that may arise from the necessity to consider if the error went to jurisdiction such that certiorari would lie to quash the decision.

55. The third rationale is that the discretion to refuse judicial review on the basis of a failure to exhaust adequate alternative remedies exists to safeguard judicial resources.? The discretion to refuse leave or relief focuses precious judicial resources on those cases which have exhausted remedies without satisfactory resolution.? This rationale appears in numerous judgments (e.g. Costello J. in Spencer Place Development Co Ltd v Dublin City Council at para [56], Hyland J. in B v Chief Appeals Officer at para [36], FD v Chief Appeals Officer [2023] IECA 123 and the Court of Appeal in the present case).? This rationale is also implicit within Abenglen having regard to the emphasis in that case on the limitations on discretion that were exercised from the earliest use of certiorari and that these limitations continued despite the extension of the remedy.? Perhaps the best expression of this rationale is found in R (Glencore Energy UK Ltd) v Revenue and Customs Commissioners (approved by UK Supreme Court in Re McAleenon) where Sales LJ. stated as follows:

"Treating judicial review in ordinary circumstances as a remedy of last resort fulfils a number of objectives ... It promotes proportionate allocation of judicial resources for dispute resolution and saves the High Court from undue pressure of work so that it remains available to provide speedy relief in other judicial review cases in fulfilment of its role as protector of the rule of law, where its intervention really is required."?

56. A further rationale is that there may be implications concerning costs which judicial review raises.? The burden of costs can impact either or both the individual applicant or the State/public body.? Where an appeal to an administrative body is available it can usually be dealt with more expeditiously and almost certainly at less expense than going to court.? The costs expended by the State on defending cases unnecessarily through the courts could be utilised in the public interest in other areas. ?It may also be that in some cases a statutory appeal to court may be more cost effective than a judicial review - this may not always be the case where the appeal is to the High Court.? In this case, it seems the respondents accepted that there would be little if any difference in costs.?

57. The final rationale considered here is the significant public interest in avoiding unnecessary delays through the use of the courts system for the resolution of disputes which could otherwise be resolved through appellate machinery designed for that purpose.?

58. Each identifiable rationale is a significant justification for the existence of the discretion to refuse to grant leave or relief on the basis of a failure to exhaust adequate alternative remedies.? The overall rationale and its different facets outlined herein provide the basis from which to consider the various issues which arise in this appeal.?

59. The courts have also considered in the case law what may constitute an adequate remedy and whether the requirement to exhaust that adequate remedy is the default position.

The Exercise of Discretion and The Rule of Law

60. As stated above, the exercise of discretion to refuse to grant a remedy of judicial review which may otherwise be justified is tightly bounded by legal and constitutional considerations.? In judicial review, the High Court exercises supervision over administrative bodies and courts of limited jurisdiction and in that way acts as a safeguard to the rule of law.? There is a public interest in ensuring that those bodies and courts act in accordance with law.? There are also legal and constitutional reasons for giving effect to the intention of the legislature that the appeal machinery provided by statute, which may be speedier and more cost effective (for the claimant and the State), is utilised before reverting to the judicial review powers of the courts. ?The availability of judicial resources to provide speedy and effective relief in other judicial review cases represents the fulfilment of the High Court's role as protector of the rule of law (see the dicta of Sales LJ. in R (Glencore Energy UK Ltd) v Revenue and Customs Commissioners referred to above).

61. Public confidence in the administration of justice could be affected if the courts were to become blocked with large numbers of claims brought by those who had another route to the redress they sought open to them; thus, preventing those with no other avenue open to them from seeking timely relief.? That itself could also threaten the rule of law, where the public no longer has confidence in the effective and efficient administration of justice.?

62. The need to balance these important legal and constitutional interests is central to the exercise of the discretion to refuse relief where an alternative remedy exists.? A judge called upon to exercise discretion is not starting from a blank sheet.? Where the balance may lie in certain given situations has already been resolved and honed through case law and a judge must respect and apply that balance in the exercise of the discretion.?

An Alternative Remedy

63.?At its most basic, an alternative remedy provides another route to the vindication of the claim that the person makes or, as the case may be, of resistance to a process contrary to their interests.? That remedy may be provided as an inherent part of the process for the adjudication of the issue in question e.g. An Coimisi?n Plean?la, or it may be provided by a statutory appeal to a court.? Judicial review operates outside these mechanisms of appeal which are provided by statutes. ?"The purpose of judicial review is to provide a remedy to persons who claim their rights have been prejudiced by an administrative decision which has not been taken in accordance with law or the principles of constitutional justice" (Murray CJ. in Meadows v Minister for Justice [2010] 2 IR 701, [2010] IESC 3). ?If the purpose is met by another route, then it would seem to follow that such a remedy would be an alternative one, although it may give rise to questions as to whether it is an adequate one.

64. In the post- Abenglen era, this Court addressed the requirement to exhaust alternative remedies on several occasions.? P & F Sharpe Ltd v Dublin City and County Manager [1989] IR 701 was a complex challenge to a county manager's initial decision to refuse planning permission and subsequent refusal to comply with the direction of the County Council to grant that permission. ?Finlay CJ. rejected, in a single paragraph, the contention that the developer should have been confined to the appeal they had made to An Bord Plean?la.? The Board's jurisdiction was confined to proper planning and development, and not the issue of the validity of the refusal and it would not have been just to deprive the developer of their right to have the decision quashed for want of validity.

65. In Buckley v Kirby, there was no direct reference to Abenglen but the issue of the existence of an alternative remedy was to the fore.? This was an appeal against a refusal to grant leave to apply for judicial review of a District Court conviction where an appeal had been lodged in the Circuit Court.?? The challenge was based upon a claim that the case against the applicant "had not been proved" and therefore the case should have been dismissed at the close of the prosecution case.? This Court (Geoghegan J.) stated that "[t]he question of alternative remedies of appeal and judicial review has always presented problems."??? He confirmed that where an appeal was brought and opened it was covered by the decision in State (Roche) v Delap.

66. Geoghegan J. adopted the view of Barron J. expressed in McGoldrick v An Bord Plean?la [1997] 1 IR 497 that the real question to be determined where an appeal lies is the relative merits of an appeal as against granting relief by way of judicial review.? The question is which is the more appropriate remedy considered in the context of common sense, ability to deal with the questions raised and the principles of fairness. ?Geoghegan J. said with respect to the appeal before him that it was not the case that either remedy would have been equally appropriate.? Applying R (Martin) v Mahony, he said that "[i]t has long been established that certiorari will not be granted merely on the grounds of an absence of evidence to support a finding."? Geoghegan J. went on to say that even where a person had not appealed but ought to have appealed then the court, in its discretion, may refuse leave.??

67. This Court also considered the exercise of the discretion in Stefan v Minister for Justice.?In her judgment, Denham J. said Abenglen and other cases recognised that judicial review is discretionary and may be refused where there is an adequate alternative remedy.? She then analysed the Abenglen case pointing out that a theme throughout all the judgments, including that of Walsh J. was "the protection of fairness of procedures". ?She noted that in Abenglen, there was no suggestion that the respondents acted in disregard of the requirements of natural justice.? She referred to subsequent civil and criminal cases where judicial review was not refused on the basis that there was an alternative appeal. ?I will discuss Stefan v Minster for Justice further below under the heading 'Adequate Remedy' and also in my judgment in AB v Chief International Protection Officer & Ors [2026] IESC 23, also delivered today.

68. Tomlinson v Criminal Injuries Compensation Tribunal [2006] 4 IR 321, [2005] IESC 1 (" Tomlinson ") was another decision of this Court where the issue of an adequate alternative remedy was raised.? The appellant raised this case with respect to the issue of whether the question a court must ask itself is which remedy is more appropriate on the facts of the case and not simply whether another remedy existed.? I will discuss that further below.

69. It is apparent from those cases and indeed from other decisions of the High Court, that the alternative remedy to judicial review continued to present problems as this Court (Geoghegan J.) acknowledged in Buckley v Kirby. ?Furthermore, the reach of the administrative state was growing, and consequentially judicial review had to be available for those cases where there was no other remedy.? The availability of judicial review was also expanding; Killeen v DPP is a good example.? In that case it was held that if the District Court judge considered himself precluded from sending a person forward for trial because of a defective warrant, that may be an error of law which was subject to judicial review. ?It was against that background that the topic of an alternative remedy was given extensive analysis by this Court in the case of EMI Records v Data Protection Commissioner [2014] 1 ILRM 225, [2013] IESC 34 (" EMI ") in the context of a statutory appeal to the courts (from the Data Protection Commissioner to the Circuit Court).? Much of what was said is relevant to alternative remedies more broadly.

70. At the outset, Clarke J. said that " where there is an adequate alternative remedy available and an applicant for judicial review fails to avail of that alternative, the court is likely to exercise its discretion against the applicant." ?However, the mere presence of an appeal mechanism, in and of itself, does not operate as a bar to relief in judicial review proceedings (see para [4.4] of EMI).

71. The appellant in the present appeal made an argument in the context of the 2005 Act that the absence of a section excluding judicial review therefore preserved the right to judicial review as an alternative to the statutory appeal process.? That submission, which is not incorrect, does not help to resolve the matters at issue here.? There is no suggestion in this case that judicial review has been excluded by statute.? Indeed, the issue of the exclusion of judicial review has not arisen in the case law; the courts have been clear that what is at issue is the court's discretion to refuse judicial review where there is an alternative remedy.? It is on that basis that the nature and extent of the discretion must be addressed, bearing in mind the multifaceted rationale for the rule.

72. In EMI, Clarke J. recited with approval the summary of the law in this area elucidated by Hogan J. in Koczan at paras [19] and [20].? In those paragraphs, Hogan J. pointed out that there may be certain categories of cases where the legal argument raised falls properly to be canvassed by means of judicial review rather than by way of statutory appeal.? For example, an argument directed towards a total lack of jurisdiction or cases relating to basic fairness of procedures or where the constitutional or legal validity of certain statutory instruments are concerned.? Hogan J. referring to the presumption that the Oireachtas knows the law and using the rationale that that the Oireachtas "'must have intended that the Court would have powers in addition to those already enjoyed at common law' in respect of its judicial review jurisdiction" said that the situations where judicial review was necessary as opposed to using the statutory procedure were exceptional. ?Adopting Hogan J.'s view that "the Oireachtas further intended that the statutory appeal would form the vehicle whereby the entirety of an appellant's arguments could be ventilated in such an appeal without any need to commence a further set of proceedings, at least to the extent that it was procedurally possible to do so", Clarke J. concluded:

"Thus the overall approach is clear. The default position is that a party should pursue a statutory appeal rather than initiate judicial review proceedings. The reason for this approach is, as pointed out by Hogan J. in Koczan, that it must be presumed that the Oireachtas, in establishing a form of statutory appeal, intended that such an appeal was to be the means by which, ordinarily, those dissatisfied with an initial decision might be entitled to have the initial decision questioned" (emphasis added).

73. Clarke J. went on to say that there would be cases which will be "exceptional to the general rule" where the justice of the case will not be met by confining a person to the statutory appeal and excluding judicial review.? Addressing the issues in that case, he repeated that the default position must be that a statutory appeal was the appropriate vehicle in which to resolve proceedings.

74. That a party who does not pursue an alternative remedy risks the court exercising its discretion to refuse judicial review proceedings was the very proposition established in Abenglen.? Where there was a self-contained administrative code in existence, Henchy J. envisaged that resort to the courts would only occur in exceptional cases. ?The view that judicial review is a remedy of last resort is also reflected in UK case law (see R (Glencore Energy UK Ltd) v Revenue and Customs Commissioners at paras [55] to [58] and approved in Re McAleenon at paras [50] and [51]).? EMI is of ** great significance as it is the first time that this Court said that the requirement to exhaust an alternative remedy was the default position in this jurisdiction. ?That was transformational because it immediately demands that attention is paid to the general rule and highlights the necessity to establish that a particular case is truly an exception to that rule.

75. Following on from EMI, it is now established that the default position is that a party must exhaust all adequate alternative remedies.? In Petecel v Minister for Social Protection [2024] 2 IR 685, [2020] IESC 25, this Court (O'Malley J.), having cited the dicta of Clarke J. that the default position was that a statutory appeal should be pursued, proceeded to an in-depth analysis of the very particular circumstances of that case in concluding that it was an exception to that rule.? ?Murray J. for the Court of Appeal in Habte v Minister for Justice [2021] 3 IR 627, [2020] IECA 22 (" Habte ") expressed it well when he said:

"The starting point in the application of the discretion of the court to refuse relief by way of judicial review at the instance of an applicant who has available to him or her an alternative remedy is that such relief should be refused unless that remedy is not in fact adequate or there is a particular exigency in the interests of justice which requires otherwise ... Thus, the requirement to exhaust such remedies represents the default position, where there is such a remedy. Those cases in which review is permitted in that circumstance being 'exceptional to the general rule'".

76. What is apparent is that from Abenglen onwards the case law did not diverge on the necessity to consider whether there was an alternative remedy before exercising a discretion to refuse judicial review.? EMI brought greater clarity; the existence of an alternative remedy operates as the default position against the grant of certiorari.? Obviously not all alternative remedies may be adequate in the circumstances and that is an important aspect of the exercise of the discretion.?

77. In this appeal, the appellant disputed that addressing the "adequacy" of the remedy was sufficient.? She submitted that the authorities demonstrated that a further test was required, namely, whether the remedy was "just and appropriate".? That, as I will demonstrate, is part of the test of the adequacy of the remedy to which I will now turn.

An Adequate Remedy ?

78. Stefan v Minister for Justice concerned the non-statutory procedures then in place for the recognition of refugee status.? At that time, the administrative procedures provided for two stages in the appeals process. ?There was a breach of fair procedures at the first stage as the decision maker did not have evidence "which was not immaterial" before him.? As referred to above, this Court (Denham J.) identified "the protection of fairness of procedures", as a theme running through the judgments of Abenglen.?The issue of whether an appeal may provide an adequate remedy where the issue is an alleged breach of constitutional rights to fair procedures, is not raised directly in these proceedings.? It will be addressed in my judgment in AB v Chief International Protection Officer & Ors [2026] IESC 23, ** also delivered today.?

79. At pages 216 and 217, Denham J. concluded: "It is clear that whilst the presence of an alternative remedy, an appeal process, is a factor, the court retains jurisdiction to exercise its discretion to achieve a just solution ... It is a factor to be considered. It is a matter of considering the requirements of justice."? This, Denham J. said, was expressed by Barron J. in McGoldrick v An Bord Plean?la as follows:

"The real question to be determined where an appeal lies is the relative merits of an appeal as against granting relief by way of judicial review. It is not just a question whether an alternative remedy exists or whether the applicant has taken steps to pursue such remedy. The true question is which is the more appropriate remedy considered in the context of common sense, the ability to deal with the questions raised and principles of fairness; provided, of course, that the applicant has not gone too far down one road to be estopped from changing his or her mind. Analysis of the authorities referred to shows that this is in effect the real consideration."

80. It would of course be the antithesis of an adequate remedy if the interests or requirements of justice dictated otherwise.? That, in my view, is the sense in which "just solution" and "more appropriate remedy" is being used in Stefan v Minister for Justice and McGoldrick v An Bord Plean?la.? That is apparent from the full consideration given to what may amount to an adequate remedy by Clarke J. in EMI.? As Clarke J. stated, t here are exceptions to the general rule where the "justice of the case" will not be met by confining a person to the statutory appeal process and excluding judicial review.? The set of such circumstances may not be closed but the principal areas of exception have been identified, as Clarke J. acknowledged specifically referencing Koczan. ?

81. Similarly, although Clarke J. cited the reference by Denham J. to an alternative remedy as a factor to be considered, this was in the context of confirming that the mere presence of an appeal mechanism does not in and of itself operate as a bar to relief.? His judgment in EMI then proceeded to address the (limited) situations where the fact of the appeal process alone may be insufficient to engage the discretion to refuse judicial review.? The conclusion of Clarke J. that the default position is to exhaust alternative remedies, his clear enunciation that exceptions to the general rule would only arise where the "justice of the case" required judicial review and his explanation that the principal areas of exception have been identified is a rejection of an interpretation of Stefan v Minister for Justice that the existence of an alternative remedy is one factor among other equal factors in the exercise of the discretion to grant judicial review. ?

82. The decision of the Court of Appeal in Habte is an example of the articulation and the operation of the default position.? It was only where the remedy was not in fact adequate or there was a particular exigency in the interests of justice which requires otherwise that judicial review would lie.? That phrase "a particular exigency in the interests of justice" or its close relative "the exigencies of justice" are helpful in pointing towards the exceptional and rare situations where the default rule will not apply.

83. The appellant submitted that this Court in Tomlinson held that the applicable question in matters such as this was which remedy is more appropriate on the facts of the case and not simply whether another remedy existed.? I do not accept that the decision in Tomlinson has the effect that the appellant urges upon this Court.? It is not a question of weighing the remedies side by side and saying on balance one remedy might be more appropriate in the sense of being 'better' for an applicant.

84. Tomlinson concerned a net question of law in which it was argued that the applicant could have appealed to a three-member panel of the Criminal Injuries Compensation Tribunal to resolve the particular legal question at issue.? Denham J. accepted at one point of the judgment that the right to appeal was an avenue but not an alternative remedy because, primarily, the remedy sought was based upon the jurisdiction of the Tribunal to make the deduction in issue.? While it must be acknowledged that Denham J. ?later said that the core issue was the jurisdiction to make the order and thus the right of an alternative remedy was not so weighty a factor as to exclude the applicant from judicial review, I do not accept that the effect of Tomlinson was to displace the general principle that the exhaustion of alternative remedies was required before judicial review would be granted.? The overall thrust of the Tomlinson decision was that the issue was one concerning the jurisdiction of the Tribunal to make an order which required an authoritative decision from the courts rather than what may be termed an 'in-house' escalation of the appeal to a three-member panel, in the very particular circumstances that applied there.? Denham J. pointed to other factors as to why the justice of that case required judicial review.? The first was the likelihood of the three-member Tribunal adopting precisely the same view which would mean judicial review would be required at a later stage.? The second was that a further rehearing before the full Tribunal would open up liability again while the judicial review would, if successful, permit the applicant to keep the decision on liability while benefitting from an assessment of damages based on the extended legal position. ?These issues in combination with that of the jurisdiction of the Tribunal, place the decision in Tomlinson into that small category of cases where the exigencies of justice required judicial review to be available. ?The case must be understood as having been decided by reference to its own very particular combination of facts and circumstances.

85. The assessment of whether a remedy is adequate, naturally depends on all the circumstances of the case.? It is in that sense, that the adequate remedy is a 'factor' to be considered in the exercise of the discretion to grant or refuse the remedy.? Significantly however, as I have pointed out in para [81] above, the EMI decision amounts to a rejection of an interpretation of Stefan v Minister for Justice that the existence of an alternative remedy is one factor among other equal factors in the exercise of the discretion to grant judicial review.? The correct position is that the circumstances must be considered against the backdrop of the multifaceted rationale outlined above for the requirement to exhaust alternative remedies and also in light of the principles outlined in case law as to what is an adequate alternative remedy. ?For example, a statutory scheme provided by the legislature may provide a complete rehearing and will, usually, be more cost-effective than recourse to the High Court.? As Clarke J. acknowledged in EMI, one of the most common bases on which the courts have been persuaded to accept judicial review is where aspects of the right of appeal are found to be inadequate to allow all of the issues which the aggrieved party legitimately wishes to raise to be determined. ?Where there is a full appeal in the sense of a complete re-hearing where what has gone before is almost irrelevant save as to background, it is difficult to see how judicial review could lie. ?Where an appeal lies against the full decision save that the appeal will be conducted on the basis of the evidence or materials considered at first instance and may accord significant weight to the assessment of the facts by the first instance body; again, such a statutory appeal may broadly be considered wider than that of judicial review.

86. Even where there is a statutory appeal on a point of law, the broad width of such an appeal is another factor pointing towards such an appeal as an adequate remedy.? In the context of social welfare appeals, the broad extent of a statutory appeal provided by s. 327 has been repeatedly stated by this Court (e.g. Castleisland Cattle Breeding v Minister for Social Welfare [2004] 4 IR 150, [2004] IESC 40, Petecel v Minister for Social Protection and McDonagh v Chief Appeals Officer [2021] ILRM 385, [2021] IESC 33 (" McDonagh ")).? As to limitations, Clarke J. in EMI was mindful of the fact that in McGoldrick v An Bord Plean?la, Stefan v Minister for Justice and Koczan there was considerable emphasis on the role of judicial review when issues of integrity or basic fairness of procedures arise. ?Since EMI however, the full extent of an appeal on a point of law has been clarified by this Court in Attorney General v Davis [2018] 2 IR 357, [2018] IESC 27.? McKechnie J. said:

"[54] Before addressing the essence of question one, I am satisfied that, subject to context, a statutory right of appeal on a point of law will, if its wording does not otherwise prescribe, include the following:-

? errors of law as generally understood, to include those mentioned in FitzGibbon v. Law Society of Ireland [2014] IESC 48, [2015] 1 IR 516;

? errors such as would give rise to judicial review including illegality, irrationality, defective or no reasoning, procedural errors of some significance, etc.;

? errors in the exercise of discretion which are plainly wrong, notwithstanding the latitude inherent in such exercise; and

? errors of fact next referred to.

[55] Drawing on what was said in both judgments in FitzGibbon v. Law Society of Ireland [2014] IESC 48, [2015] 1 IR 516 and on the authorities cited therein, including my own judgment in Deely v. Information Commissioner [2001] 3 IR 439, the following principles may be extracted when considering what issues of fact may be regarded as issues of law:-

(i) findings of primary fact where there is no evidence to support them;

(ii) findings of primary fact which no reasonable decision-making body could make;

(iii) inferences or conclusions:

? which are unsustainable by reason of any one or more of the matters listed above;

? which could not follow or be deducible from the primary findings as made; or

? which are based on an incorrect interpretation of documents.

As with the matters listed in para. 54, above, this enumeration is not intended to be exhaustive."

87. This is an extremely broad jurisdiction, including as it does the type of procedural errors that might give rise to judicial review.? Orange Ltd v Director of Telecoms (No 2) [2000] 4 IR 159, [2000] IESC 22 is an example of a statutory appeal extending to considerations of breaches of fair procedure. ?Given the scope of these appeals, any deficiency in the adequacy of such a statutory appeal would have to be clear.? Interestingly, it is EMI itself that offers such an example.? The applicants in that case had been affected by a decision but had no statutory right of appeal (although they applied to be joined as a notice party to the statutory appeal).? Furthermore, the precise scope of the issues which might have been canvassed in the statutory appeal to which they were admitted as notice parties was far from clear.? That does not take from the general proposition that a statutory appeal will generally provide an adequate remedy.

88. The requirement to exhaust alternative remedies extends to remedies which are administrative in nature; that is apparent from Abenglen itself, from the social welfare cases referred to by the parties and from others.? Whether the appeal lies to An Bord Plean?la (now An Coimisi?n Plean?la), the Criminal Injuries Compensation Tribunal, the International Protection Appeals Tribunal, to a social welfare appeals officer or to any other non-judicial appellate body, the case law establishes that these are alternative remedies which if adequate, must be exhausted prior to seeking judicial review.? In EMI, Clarke J. refers to "statutory appeals" and it is apparent from the judgment that the principles he espouses are not confined to statutory appeals to the courts.? He refers to many cases in the context of statutory appeals where those appeals were set out in statute but were appeals to administrative bodies.? EMI must be understood as applying to all situations where the legislature has provided for an alternative remedy.

Exhaustion of alternative remedies: Practical considerations

The ex parte application for leave to apply for judicial review

89.?In Habte, Murray J. said: "It follows [from the default position requiring the exhaustion of remedies] that the onus is on the party seeking relief by way of judicial review to establish either that the alternative remedy is not adequate, or that there is a particular exigency which renders it unjust that it should have to be exhausted."

90. The appellant however submitted that there was a prior step that was required to be taken before this default position would apply.? She submitted that there is at least a prima facie burden on the party raising the preliminary objection to first establish that a particular avenue represents an alternative remedy.? At a minimum, it was said that sufficient detail should be provided as to how the remedy operates.?

91. The issue as to where the burden lies must be addressed as a matter of principle.? I therefore propose to look at the law as it applies to an ex parte application for judicial review.

92.? G v Director of Public Prosecutions is the leading authority on the requirements for the grant of leave to apply for judicial review.? This Court addressed Order 84 of the Rules of the Superior Courts which requires an ex parte application to the High Court for leave to apply for judicial leave. ?Finlay CJ outlined the five "necessary ingredients" which an applicant must satisfy in order to obtain that leave.? The first four deal with sufficiency of interest, stateable grounds, arguable grounds for entitlement to the relief and compliance with time limits.? The fifth necessary ingredient which the applicant must satisfy the court of in a prima facie manner by facts on affidavit and submissions is:

"(e) That the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be an order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure."

93. The requirement that an applicant for judicial review address the issue of the alternative remedy is therefore crystal clear and long-established. ?The confirmation in EMI that the default position is that adequate alternative remedies must be exhausted leaves no room for doubt; an applicant must address these issues at the leave stage. ?The requirement to do so follows from the multifaceted rationale for the principle as outlined above. ?The requirement provides "a judicial screening process" as Denham J. stated in G v Director of Public Prosecutions. ?This screening process acts an important tool to give effect to the important concerns of the safeguarding of judicial resources and the public interests as regards to the costs and implications for delayed decisions.? The proper use of the screening tool will prevent unnecessary extra court hearings and relieve the State and public bodies from the costs and other burdens of opposing applications which ought to never have been granted leave in the first place.?

94. The Rules of the Superior Courts confirm the discretion of the High Court not to grant leave before an appeal is exhausted; the Rules provide for the option of adjourning the application.? Order 84, rule 20(6) provides that "[w]here leave is sought to apply for an order of certiorari to remove for the purpose of its being quashed any judgement, 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".?? The rationale behind the exhaustion of the alternative remedies requirement compels the court hearing the leave application to be alert to the existence of alternative remedies that may not have been raised by the applicant and to exercise its discretion accordingly. ?The court may of its own motion refuse the application because it does not address the issue of alternative remedies or, where it is satisfied that an appeal is an appropriate alternative remedy, the court may adjourn the application for leave until that appeal is exhausted or until the time for making that appeal has expired.? The discretion ought to be exercised in accordance with the principles set out in this judgment.? Therefore, while the High Court has a discretion as to whether to grant or refuse leave to apply for judicial review, it is obliged to consider any possible alternative remedy at the application for leave stage and to exercise its discretion in accordance with the principles outlined in this judgment.

95. As I discuss further in AB v Chief International Protection Officer & Ors [2026] IESC 23, the court at the leave stage must take the applicant's case at its highest.? Importantly however, even where the court is satisfied that certiorari would lie on those proven grounds, the existence of an adequate alternative remedy requires the discretion to be exercised against the grant of leave to apply for judicial review.? While the threshold generally applied at the leave stage is not high - requiring establishment of an arguable case, the threshold where it is contended that an alternative remedy is not adequate requires the applicant to establish that it is arguable that they are within a narrow exception to a general principle demanding the exhaustion of remedies.  That should not be understood as something that is either automatically or easily proven.  It must be recalled that part of the rationale for this principle is that the court's resources should not be expended in dealing with proceedings which can be addressed though an alternative forum, and that rationale is undermined if leave is granted and cases are taken to trial only for the court to find that the proceedings ought not to have been entertained at all.

Onus of Proof

96. It follows from the above that the onus of proof must lie on an applicant for judicial review.? The applicant will know the case that she or he is making and will be in a position to articulate on affidavit and in submissions the case that they wish to make.? It will be on those facts and submissions that a court will be able to determine if in fact the alternative remedy is adequate.? That claim ought to be clear from the outset and if contested by the respondent to the judicial review proceedings, the grounds for this can be set out on affidavit and in submissions.?

97. The appellant refers, by analogy, to the approach of the European Court of Human Rights in determining whether all domestic remedies have been exhausted before dealing with a matter (Article 35 of the European Convention on Human Rights).? The approach in this regard was summarised in Gherghina v Romania (2015) 61 EHRR SE15 (" Gherghina ") at para [88] where the Court held that the burden was on "the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time."? The relevant paragraph goes on to refer to the requirement that the availability of the remedy must be clearly set out and complemented by practice or case law.? The burden then shifts to the applicant.? In the present case, the appellant submitted that by analogy, the respondents have not discharged this initial burden.

98. The approach of the European Court of Human Rights in Gherghina is not one that can be overlaid seamlessly onto national jurisprudence.? As an international body, that Court operates to oversee minimum standards across the Council of Europe states.? Where domestic remedies are effective, they must be exhausted by applicants; that is part of the generally recognised rules of international law.? The responsibility of ensuring that rights under the Convention are respected lies with the Contracting States and the requirement to exhaust domestic remedies acknowledges that responsibility.? It also respects the role of the Court as a supervisory body.? The European Court of Human Rights however must be given the information as to each jurisdiction's legal systems and mechanisms before it can adjudicate and, in those circumstances, where the Contracting State is always a party to the proceedings, it is highly appropriate that the burden is on the state to prove the effectiveness of any remedy. ?It must also be borne in mind that in Convention cases it is usually not the existence of straightforward appeal mechanisms that causes difficulty.? The difficulty more readily arises where the Contracting State argues that a remedy exists such as a civil action, a constitutional action or administrative actions including appeals.? In that regard, it is noteworthy that in Gherghina, the European Court of Human Rights rejected the applicant's claim to have exhausted domestic remedies by pointing to various actions he could have taken such as seeking court orders under relevant legislation, an action in tort or indeed certain administrative law procedures.?

99. Our national procedural rules require, for all the reasons set out in this judgment, that an applicant exhaust alternative remedies before applying for judicial review.? That alternative remedy will be one where the applicant's rights and interests will be capable of being vindicated.? In the application for judicial review, the existence of an alternative remedy will, most usually, be readily identifiable as a matter of law e.g. an appeal from one court jurisdiction to another, a statutory appeal to the courts, an appellate structure apparent in legislation e.g. the WRC, the International Protection Appeals Tribunal etc, or an internal appellate structure e.g. an appeals officer in social protection appeals.? Lawyers and litigants in person will be aware of remedies and therefore must be in a position to provide a reason why the alternative remedy is not adequate.? In the extremely rare situation where a litigant in person does not know of the existence of an appeal, the court hearing the judicial review may give assistance in identifying that route and make an appropriate order for adjournment (whether pending appeal or further affidavit).? At all stages, the onus is on the applicant to demonstrate that the alternative remedy is not an adequate one.?

100. I caution however, that the fact that the onus lies on an applicant to demonstrate that the default position does not apply may have limited relevance in the overall disposal of certain cases.? While there may be an onus on the applicant to put factual and legal matters on affidavit or in the grounding statement applying for judicial review, the final determination of whether the remedy is an adequate alternative remedy lies with the court.? That court will be called upon to assess all the facts and circumstances of the case in deciding as a matter of law whether there is an adequate alternative remedy.? That follows from the exercise of discretion which is bounded by the relevant legal and constitutional considerations.? As the EMI case demonstrates, in some exceptional cases that may require a close analysis of the legal position of the appeal vis-?-vis judicial review.? If the State body (such as the Data Protection Commissioner in EMI) is unclear as to the extent of the alternative remedy, that may be an important factor in the court's assessment.?

Standard of Proof at the Leave Stage

101. In accordance with the decision in G v Director of Public Prosecutions and having regard to the decision in EMI and to this judgment, I will take the opportunity to reframe the test to be met by an applicant who seeks leave to apply for judicial review.? Where there is an alternative remedy, the applicant for judicial review must satisfy the court that they have arguable grounds (or substantial grounds where the law so requires) to establish that they come within one of the exceptions to the general rule that the alternative remedy must be exhausted prior to judicial review.? Where it is clear from an assessment of the principles and their application in existing precedents that a remedy is an adequate and alternative one, the facts and circumstances of the specific case will only rarely require that the court's discretion be exercised in the exigencies of justice in favour of the availability of judicial review.? The 'arguable grounds' or 'substantial grounds' standard will not be satisfied where it is clear that the discretion may only be exercised to refuse judicial review even when taking the applicant's case at its highest.

Notification of Existence of Remedies

102. The Court raised with the parties the issue of whether there was a decision, other than T v Minister for Social Protection, which demonstrates that an absence of information concerning appeal/review procedures set out in statute (including statutory appeals to the courts) is relevant to the question of whether the failure by an applicant to exhaust a remedy does or does not prevent the grant of relief.? Both parties referred to the decision of this Court in Maher v Minister for Social Welfare [2008] IESC 15 which considered whether the High Court had been correct in determining that the applicant had not exhausted his remedies because he had not applied to the Chief Appeals Officer for a revision under the then relevant section of the Social Welfare (Consolidation) Act, 1993.? In that case the applicant, as a lay person, had written seeking information as to his options regarding reviewing an appeals officer's decision.? The reply was a pro forma one and did not engage with what he had written.? In circumstances where this Court found that the applicant had spent years trying to progress his case as a lay litigant seeking legal aid, that there was no careful legal analysis by him leading to a considered decision on a choice of routes and where the existence of an appeal to the Chief Appeals Officer was not easily discernible from the information furnished by the respondent, the Court was satisfied that the insufficiency of information rendered the process unfair.? In those circumstances, the Act could not be used as a sword against him, but it instead acted as a shield.? The Court remitted the matter to the Chief Appeals Officer for a full review, noting also that under the Act the Chief Appeals Officer could 'at any time' review the decision.

103. The facts in Maher v Minister for Social Welfare are quite singular but they indicate that where information is sought, that information ought to be clear and accurate and engage with the question raised.? No case was brought to our attention concerning statutory appeals to the courts.? Different considerations may apply in those circumstances where statutory appeals may be subject to strict time limits and where the existence of a statutory appeal to the courts has been clearly promulgated.

104. I do not consider it necessary or appropriate to make a final determination on the extent to which a person must be notified of an appellate structure before they can be required to exhaust them because this was not raised as an issue in the course of the hearing before the High Court in this case. ?It was simply not addressed by the appellant, even in reply to the respondent's statement of opposition which raised the existence of alternative remedies as a preliminary objection to the judicial review. ?As there was no factual basis on which this point could be grounded it cannot be addressed.? This follows from the burden being on an applicant to demonstrate that an apparent alternative remedy is not an adequate one and that the exigencies of justice require judicial review to be available to challenge a decision.

Principles on the discretion to refuse judicial review where an alternative remedy exists ?

105. Arising from the foregoing the following principles emerge:

i. The default position is that a party should pursue a statutory appeal or review rather than initiate judicial review proceedings.

ii. The rationale for this principle is multifaceted:

a. To give effect to the legislative intent in the creation of alternative remedies;

b. There may be advantages to having an appeal over judicial review;

c. To safeguard judicial resources so that the courts remain available to provide speedy relief in other cases where intervention is required; and,

d. The implications for costs and/or for delay for both claimants and for the State and public bodies in applying for judicial review instead of using the alternative appellate machinery.

iii. The exercise of discretion to refuse to grant a remedy of judicial review which may otherwise be justified is tightly bounded by legal and constitutional considerations.? The High Court's judicial review power over administrative bodies and courts of limited jurisdiction acts as a safeguard to the rule of law. ?The balancing of these important legal and constitutional considerations is central to the exercise of the discretion.

iv. In exercising discretion to refuse judicial review, a judge is bound by principles enunciated in the case law as to its application.

v. Cases where judicial review will be permitted are exceptions to the general rule.? An applicant may not have to exhaust an alternative remedy ** where it is not adequate or where there is a particular exigency in the interests of justice which requires judicial review to lie.

a. Statutory appeals to the courts, even those on points of law, give broad jurisdiction to the courts to review decisions and come within the default position.? The principal areas of exception to the general rule of excluding judicial review in those situations have been identified in the case law and are generally where the appeal will not permit the person aggrieved to adequately ventilate the basis of their complaint against the initial decision.??

b. Other statutory appeals likewise come within the default position and judicial review will only lie as an exception to that rule where the remedy is not adequate or where there is an exigency of justice that requires judicial review.

c. Circumstances which may come within the exception to the rule may be where the challenge is to the integrity and basic fairness of the proceedings (for analysis of those circumstances see AB v Chief International Protection Officer & Ors [2026] IESC 23).

vi. Where it is clear from an assessment of the principles and their application in existing precedents that a remedy is an adequate and alternative one, the facts and circumstances of the specific case will only rarely require that the court's discretion be exercised in the exigencies of justice in favour of the availability of judicial review.

vii. The onus of demonstrating that there is no adequate alternative remedy lies with the applicant.

viii. At the application for leave to apply for judicial review stage (whether heard ex parte or on notice), the following applies:

a. The court has an obligation to consider any possible alternative remedy at the appeal stage;

b. Order 84, rule 20(6) of the Rules of the Superior Courts permits the court to adjourn the application for leave until an appeal is determined or the time for appealing has expired;

c. The court's discretion to grant leave to apply for judicial review must be exercised in accordance with established principles regarding the exhaustion of alternative remedies;

d. Where there is an alternative remedy, an applicant for judicial review must satisfy the court that they have arguable grounds (or substantial grounds where the law so requires) to establish that they come within one of the exceptions to the general rule that the alternative remedy must be exhausted prior to judicial review; and,

e. The 'arguable grounds' or 'substantial grounds' standard will not be satisfied where it is clear that the discretion may only be exercised to refuse judicial review even when taking the applicant's case at its highest.

ix. If leave has been granted, it remains open to the respondent to raise the issue of alternative remedy either by way of an application to set aside leave or in the statement of opposition.

The Social Welfare Appeals System

Exhaustion of Remedies under the 2005 Act

106. The principles set out above apply to the social welfare appeals structure.?In Petecel v Minister for Social Protection, this Court allowed an appeal against the High Court's refusal to consider the substantial issues in that case because alternative remedies had not been exhausted.? The appellant referred to the dicta of O'Malley J. at para [103] that "[i]t is well established that the existence of a right of appeal is not an automatic bar to the right to seek judicial review but is a matter to be taken into consideration in the exercise of the discretion of the High Court judge."? The judgment of O'Malley J. is however both a confirmation and an application of the above principles.? O'Malley J. found for the appellant on the basis that "[t]he issue ... raised as to the validity of the classification of disability allowance [was] one that could not be decided in the internal appeals structure " (emphasis in submissions).? O'Malley J. also found that "[h]ad the [appellant] proceeded with an appeal to an appeals officer, it does not appear to me to be possible that he would have achieved a different outcome on this issue [to the deciding officer]" (emphasis added).? The appellant's case in Petecel v Minister for Social Protection engaged an issue of validity of a national measure having regard to EU law and the classification set out in a domestic regulation, which, as this Court found, the appeals officer would have had to presume to be valid. ?In those circumstances, this was a point of law that did not properly arise in a decision based on the interpretation and application of the legislation and applying the principles discussed in EMI and Koczan. ?O'Malley J. said that the proceedings came within the exception where for jurisdictional reasons, the statutory appeal process could not provide the remedy sought.

107. Such situations will be rare.? The broad nature of the appellate structure has been repeatedly identified in more recent case law.? This Court in McDonagh emphasised that "[t]he regime for challenging a decision under the 2005 Act is generous and flexible" in holding that a refusal to revise a decision of a deciding officer was a decision that could be appealed under the 2005 Act.? Attention was drawn to the fact that the Act does not limit the number of applications which can be made by an individual.? McDonagh was an extremely detailed examination of the "revision" provisions in the 2005 Act.? In Little v Chief Appeals Officer [2023] IESC 25 (" Little "), Woulfe J. observed that "[t]he authorities cited in McDonagh suggest that [the] approach only allows a remedial statute to be interpreted as widely as the words reasonably permit, in order to reflect the remedial nature of the legislation."

108. In FD v Chief Appeals Officer, the Court of Appeal found that the applicant in that case ought to have availed of the alternative remedy provided by s. 317 of the 2005 Act before seeking judicial review. What I said in that case at para [42] bears repetition, "[t]he breadth of the revision provisions is, possibly, unique in the field of the administration of public law."? It is also relevant that:

"The Act provides extensive rights to seek to revise the decisions of both the deciding officers and the appeals officers ... Section 317 only provides jurisdiction to the appeals officers to revise where new facts or new evidence are put before him or her. Lest it be thought that there was no power to revise an appeal decision for a mistake of law or facts, s. 318 provides that the Chief Appeals Officer has that jurisdiction."

My view remains that "[c]ommon sense dictates that applicants for social benefits/allowances ought to use the very wide provisions in the Act", unless there is an exceptional reason for not doing so.?

109. I propose now to address the alternative remedies that, prima facie at least, were available to the appellant.? The case before this Court was that the appellant should have availed of the provisions of ss. 318 and 327 before seeking leave to appeal.?

Section 327 of the 2005 Act

110. The appellant acknowledged that the grounds she raised on judicial review "could arguably be construed as questions of law such that a statutory appeal would have been open to her" (emphasis in submissions).? She argued that her principal grounds were ones traditionally pleaded in support of an application for certiorari.? The appellant submitted that in circumstances where there is a significant overlap in terms of the jurisdiction of the High Court in regard to a s. 327 appeal and judicial review, the appellant ought not to be 'penalised' for opting for the more usual route.? The appellant contended that the case would have proceeded in much the same manner if it were taken by way of statutory appeal.? Thus, the appellant submitted that the existence of the s. 327 procedure should not militate against the grant of relief by way of judicial review.

111. It is readily apparent that the submissions in the preceding paragraph conflict with the principles that have been set out above.? Contrary to the appellant's contentions, the fact that an appeal on a point of law encapsulates the traditional grounds pleaded in support of an application for certiorari means that the statutory appeal is an alternative remedy subject to any exception to the general rule that applies. ?The onus is on the applicant to demonstrate that such an appeal is an inadequate remedy.? The requirement to exhaust these alternative remedies is not a question of 'penalisation' but is an established part of the legal principles through which the High Court exercises its supervisory jurisdiction in ensuring compliance by the State and public bodies with their legal and constitutional duties.? The High Court must exercise this jurisdiction in a manner which accords with legislative intent, the suitability of other mechanisms as well as the costs and time implications of judicial review.

112. In so far as the decision in T v Minister for Social Protection suggested that the appellant had an entitlement to an order of judicial review notwithstanding the provisions of s. 327, Heslin J. was in error.? Far from being an exception to the requirement to exhaust alternative remedies, the extensive, generous and flexible appellate provisions in the 2005 Act all point towards the existence of a statutory appellate mechanism that extends all the way to the High Court on a point of law.? The default position is that such a remedy, where it exists, must be exhausted.

113. I say 'where it exists' because, although it was never argued that an appeal pursuant to s. 327 would not lie from a revised decision under s. 317, there may be some element of doubt as to the correct interpretation of s. 327.? Both parties approached this appeal on the basis that s. 327(a) provided an appeal from the decision of an appeals officer under s. 311 as well as the decision under s. 317. ?There is a difference in wording between "the decision" of an appeals officer in s. 327(a) and "the revised decision" of the Chief Appeals Officer in s. 327(b).? If that was the only difference, then taking account of the wording in the nature and context of the Act as a whole and having regard to the decision in McDonagh, it may well be that "the decision" meant "all decisions" of the appeals officer.?

114. Where some doubt may arise is that there is a difference in the Act in its provisions for appeals from the revised decision of the deciding officer and the revised decision of the appeals officer.? Section 301 states that "the provisions of this Part as to appeals apply to a revised decision under this subsection in the same manner as they apply to an original decision of a deciding officer ".? Section 317 dealing with revised decisions of an appeals officer does not contain any similar provision in respect of appeals.? There may be good reason for not having an appeal on a point of law since that appeal is grounded on new evidence or facts but, it is of course, possible, that given the nature and context of the Act that the meaning of decision in s. 327(a) is to be given a wide and generous application, especially so in light of the decision in McDonagh.?

115. As indicated in the next section, this Court in Castleisland Cattle Breeding v Minister for Social Welfare has opined as to the limited possibility of an appeal to the High Court from a refusal to 'revise' a decision under the then equivalent provision to s. 318.? For the reasons set out below that was not the ratio decidendi of the case and I am satisfied that there is an appeal from a decision of the Chief Appeals Officer who refuses to revise his decision.

116. If the statutory appeal is available, it amounts to an adequate alternative remedy and ought to have been used by the appellant.? I do not have to decide that this is the position because, for the reasons set out below, I conclude that s. 318 provides an adequate alternative remedy and the appeal can be disposed of on that basis.

The Construction of Part 10 of the 2005 Act and Section 318

117. The appellant accepted that it is now well-established that, insofar as the 2005 Act is concerned, an appeal under s. 311 (AM v Minister for Social Protection [2013] IEHC 524) and a review under s. 317 (FD v Chief Appeals Officer) are alternative remedies which must be exhausted, save for those exceptional situations where such a remedy is not adequate (e.g. Petecel v Minister for Social Protection). ?That the same position exists with respect to s. 318 was not accepted by the appellant.

118. The appellant referred to Castleisland Cattle Breeding v Minister for Social Welfare where Geoghegan J. stated that the predecessor to s. 318 was a "revising rather than an appellate procedure", which did not confer a "double appeal" on an applicant.? In PF v Minister for Social Protection [2024] IEHC 148, s. 318 was described as being "outside the appeals process".? The appellant submitted that s. 318 is a residual, remedial provision and is not an integrated feature of the appellate scheme created by the 2005 Act.?

119. The appellant submitted that on a holistic view, the principal role of the Social Welfare Appeals Office is the determination of de novo appeals under ss. 303 (where the deciding officer may refer a matter to an appeals officer without deciding that matter) and 311.? It was said that this interpretation is consistent with s. 330 which enables the Minister to make regulations specifying the procedures under those sections but is silent on ss. 317 and 318.? The appellant also referred to the Social Welfare (Appeals) Regulations, 1998 (SI No 108 of 1998), as amended by the Social Welfare (Appeals) (Amendment) Regulations, 2011 (SI No 505 of 2011) which were applicable at the relevant time.? Those regulations were silent on how a person might trigger a review under ss. 317 or 318.

120. The appellant further submitted that the residual nature of s. 318 is evident from the fact that an applicant is entitled to a direct statutory appeal to the High Court on any question of law under s. 327(a) from the decision of an appeals officer as well as to appeal the revised decision of the Chief Appeals Officer under s. 327(b).? The s. 318 review procedure must not be first exhausted.? It was stated that the intention of the Oireachtas was to enable a dissatisfied applicant to gain access to the courts without first seeking a review.

121. The appellant also contended that s. 318 stands apart from the other provisions of the Part 10 appellate structure on the basis that it is not dependent on new evidence or facts.? As observed by Heslin J. in T v Minister for Social Protection, ** s. 318 appears to confer an 'own motion' power to revise any decision.? The appellant stated that this contrasts with the operation of s. 317 and that this distinction highlights that s. 318 acts as a remedial backstop.

122. None of the provisions of the 2005 Act, however, can be understood without reference back to the multifaceted rationale for the requirement to exhaust alternative remedies and to the fact that the regime for challenging a decision under that Act "is flexible and generous in allowing for a process of revision and/or appeal" (McDonagh at para [66]). ?Moreover, as this Court observed in Little, the procedural provisions of Part 10 of the 2005 Act should be interpreted as widely as reasonably possible.?

123. The decision in Castleisland Cattle Breeding v Minister for Social Welfare is an important one that addressed the then equivalent statutory provisions to ss. 318 and 327; ss. 263 and 271 of the Social Welfare (Consolidation) Act, 1993 ("the 1993 Act") respectively.? The issue arose in the context of a dispute about the status of a cattle inseminator in the appellant company, namely, whether he was an employee or an independent contractor.? The deciding officer determined that he was an employee. ?On appeal by the inseminator, that finding was overturned by the appeals officer having conducted an oral hearing. ?The appellant company requested a revision by the Chief Appeals Officer of the appeals officer's decision who, in turn, upheld the appeals officer's decision. ?The appellant company then brought an appeal under s. 271 of the 1993 Act (now s. 327 of the 2005 Act).? The initial comments of Geoghegan J. that the s. 318 equivalent provision (s. 263) did not appear in its terms to be conferring a double appeal were clearly obiter dicta because the decision did not turn on that issue

124. The Court in Castleisland Cattle Breeding v Minister for Social Welfare acknowledged that there was an element of procedural confusion in the entire proceedings.? The High Court judgment had not identified that the special summons had incorporated the two alternative appeals under s. 271 (i.e. from the decision of the appeals officer and from the decision of the Chief Appeals Officer). ?It was only at a late stage that the Court itself adverted to the possibility that s. 271 may not provide for an appeal if the Chief Appeals Officer decides not to revise the decision of the appeals officer.? Examining the 1993 Act as it stood, the Court noted that both the appeals officer's decision and the "revised decision" of the Chief Appeals Officer were appealable to the High Court.? Geoghegan J. viewed the language of s. 271 as not providing an appeal where there was "no revised decision" in circumstances where there was a refusal to revise.? He opined that "no doubt in an appropriate case there might be grounds for judicial review."? It is noteworthy that in that case, this Court proceeded to hear the appeal as neither party attempted to take advantage of any of the procedural confusion and where the legality of the underlying decisions of the appeals officer and the Chief Appeals Officer was fully argued before the Court.? To that extent again, the dicta concerning the right of appeal from s. 271 (now s. 327) may be considered obiter.

125. Since that decision, there have been a number of developments that have potential relevance.? The 1993 Act was amended to permit the Minister to appeal to the High Court against a decision of the Chief Appeals Officer to revise a decision of an appeals officer and also to appeal against a decision not to revise.? In McDonagh, which did not directly concern s. 318, the State respondents argued that this copper fastened the view in Castleisland Cattle Breeding v Minister for Social Welfare that where there was a refusal to revise, there was a reversion back to the original decision. ?The in-depth analysis of the "revision" provision in s. 301 by this Court in McDonagh appears to back away from the obiter of the decision in Castleisland Cattle Breeding v Minister for Social Welfare although it did not directly say so.? Of particular interest is that this Court framed the question as follows: "is a decision not to revise a decision a decision which can be appealed?" ?This Court also acknowledged the potential for confusion between the wording in Part 10 of the Act. ?There were differences in the wording between subsections (a) and (b) of s. 301 but this Court expressed considerable doubt that such an unexplained difference in treatment between claimants as to the right of appeal could affect the correct outcome.? The Court did note however, that the distinction between a decision of the appeals officer in s. 327 and the revised decision of the Chief Appeals Officer in s. 327 "must have some meaning."

126. In reaching its conclusion, this Court stressed the generous and flexible nature of the regime for challenging a decision under the 2005 Act. ?The Court recognised the advantage to a claimant to succeed on a revision by a deciding officer over an appeal to the appeals officer as being the date as to when the entitlement to the benefit/allowance would take effect.? The Court said that "a decision not to revise is a decision, just as a decision to revise is a decision."

127. Prior to seeking to resolve the issue concerning s. 318 and the power of appeal from a non-revision, it is important to refocus on the important elements.? The discretion in respect of judicial review involves a consideration of whether there is an adequate alternative remedy.? In this judgment, I have used the word appeal or the phrase "appellate structure"; perhaps as a continuation of the use of those phrases in prior case law.? What matters however is whether there is a remedy; namely, an adequate alternative one.? Bearing that in mind, the following considerations are important in respect of social protection claims:

i. The appellate structure provided for by the 2005 Act is generous and flexible and was designed to ensure that a claimant has every possible opportunity to make their case to be entitled to the particular allowance sought.

ii. The provisions regarding the revision of a deciding officer's determination permit an appeal to be taken regardless of the outcome of the application for revision.

iii. An appeals officer's decision can be revised on limited grounds (primarily new evidence or new facts).

iv. There is a prima facie difference between the decision of the appeals officer in s. 327(a) and the revised decision of the Chief Appeals Officer in s. 327(b).? In both of those situations there is an appeal to the High Court on a point of law.

a) If there is a restriction on an appeal to the High Court from the revised decision of the appeals officer, that could be viewed as consistent with the scheme of the Act.? From a claimant's point of view, the reason to seek a revision of the appeals officer's decision is where new evidence or new facts emerge since the date of that decision.? In general, an issue concerning adjudicating on, and weighing of, facts and evidence is not a suitable matter for an appeal on a point of law (save in the sense outlined in Attorney General v Davis above).

b) On the other hand, if there is no restriction on an appeal to the High Court from the revised decision of the appeals officer that may also be consistent with the scheme of the Act to provide wide and generous paths of appeal.? An appeals officer's decision on new facts/evidence is likely to include all matters of law that also arose in the initial decision.

v. Where it appears that any decision (i.e. including the revised decision) of the appeals officer is erroneous by reason of a mistake of law or of facts, the claimant has the opportunity to seek a revision by the Chief Appeals Officer.

vi. All these avenues of redress are to the benefit of the claimant.? There can be no dispute that these 'in-house' avenues to redress are cheaper than an appeal to court.

vii. At the point when a claimant has received a negative decision from the appeals officer, the claimant has a choice to make where she believes that the decision is erroneous as a matter of law.? The claimant can seek a revision by the Chief Appeals Officer or can take an appeal under s. 327.? If the matter was one that could have been determined much more readily by an application for revision, this may an impact for the costs of the court hearing.

viii. What the claimant will not be allowed pursue, in the aftermath of a s. 311 decision, is relief by way of judicial review save in one of the exceptional situations discussed above.

128. None of the above is controversial even if there may be some doubt as to the availability of an appeal under s. 327 from the revised decision taken under s. 317.? That analysis must feed into the interpretation of the nature of the s. 318 provision in assessing whether it constitutes an alternative remedy which may act as a discretionary bar to judicial review.? Factors of importance are that s. 318:

i. provides a wide degree of latitude to the Chief Appeals Officer to revise for mistakes of law and fact;

ii. is a provision located within the generous and flexible scheme in a remedial statute which was drafted in such a way as to ensure a claimant has every possible opportunity to make their case to be entitled to an allowance or benefit;

iii. it is cost efficient for a claimant;

iv. it is in the public interest that judicial resources are not utilised unnecessarily where claims can be appropriately resolved within a framework provided by statute; and,

v. there is a public interest in the more cost-effective resolution of claims.

Those factors mirror the multifaceted rationale behind the principle that where an adequate alternative remedy exists, judicial review will not lie save in exceptional situations.

129. Can it be said that the interpretation of s. 318 is so affected by the provisions of s. 327 as to mean that it is not an adequate alternative remedy to which a court hearing a judicial review must have regard?? I do not consider that to be so.? The reference to a revised decision in s. 327(b) clarifies that it is only the s. 318 decision of the Chief Appeals Officer that is appealable.? That precision in legislative language prevents any argument that a decision of the Chief Appeals Officer under s. 311 was appealable.? The revised decision of the Chief Appeals Officer is the only decision that the Chief Appeals Officer makes that affects the substance of a claimant's right to a benefit/allowance.? The fact that a statutory appeal is also available against a decision of an appeals officer does not affect the availability of this remedy, it provides a choice to a claimant albeit one that may, possibly, come with costs implications.

130. Moreover, I am of the view that the logic of the decision of this Court in McDonagh which concerned the similar (but wider) provision at s. 301 regarding the revision decision by a deciding officer also points towards interpreting s. 318 in a manner which would permit an appeal against both a refusal to revise and a decision to revise.? Both situations amount to the taking of a 'decision' by the Chief Appeals Officer and together they are incorporated into the phrase "revised decision". ?Furthermore, if s. 327 permits only a decision which revises in the sense of 'varies', then the appeal process would be limited to a situation where the revision had only operated in a 'downwards' direction for a claimant.? As originally drafted, s. 327 did not provide for an appeal by the Minister.? If a claimant sought a revision, it was almost certainly in the hope of revising their claim upwards but if the appeal was limited to a positive decision, then the claimant would have no statutory appeal available.? It would of course be open to appeal the original decision but as the time may have expired, an extension of time would be necessary.? While the justice of the situation would demand such an extension, the procedural obstacles to such an approach make it highly unlikely that this was the intention of the Oireachtas.? On the contrary, an appeal from a refusal to revise is a logical, sensible approach that accords with the decision in McDonagh and the general principles enunciated there.?

131. I do not think that the amendment to the Act making specific the Minister's right to appeal both the making of a revised decision and the refusal to make a decision has had any effect on the position.? All the amendment provides for is clarity where there may have been some lack of clarity previously due to the decision in Castleisland Cattle Breeding v Minister for Social Welfare.

132. The other possibility, put forward by the appellant based upon the decision in T v Minister for Social Protection, is that s. 318 is an "own motion" procedural mechanism available to the Chief Appeals Officer.? That interpretation does not sit with the wording of the section especially when viewed in the light of the mechanism set out in the entirety of Part 10 which provides for a complete scheme.? While the Chief Appeals Officer may have the ability to take that decision - indeed that may be advisable where a landmark decision has been made on a matter of law covering the same circumstances - he or she is clearly not limited to that situation.

133. For all these reasons, I am quite satisfied that the obiter dicta in Castleisland Cattle Breeding v Minister for Social Welfare to the effect that the equivalent section was not part of the appellate process does not convey the true understanding of s. 318 which is that the provision is part of the statutory machinery that provides adequate alternative remedies that must be exhausted before judicial review will lie. ?I am satisfied therefore that s. 318 was an adequate alternative remedy of which this appellant ought to have availed.? The remedy that s. 318 provides could be effective in resolving all the issues raised by this appellant and could do so in a cheap and speedy manner.? In those circumstances, the appellant has not demonstrated any reason why the default position - that where there is a failure to exhaust an adequate alternative remedy that judicial review should be refused - should not apply to her.? I would therefore dismiss this appeal.

Anonymity

134. Upon granting leave to the appellant to apply for judicial review, the High Court made an order pursuant to s. 45 of the Courts (Supplemental Provisions) Act, 1961 ("the 1961 Act"), prohibiting the publication or broadcast of any matter relating to the proceedings which would or would be likely to identify the appellant.? This was granted by the High Court of its own motion, without the appellant having sought such an order and without any argument regarding anonymity during the leave application.? The appellant's name was anonymised as "LA" in the published judgments of the High Court and Court of Appeal delivered thereafter, without any further application or objection by either party.

135. In response to a request by this Court for information on the legal basis for anonymity in this case, the appellant acknowledged that s. 45 of the 1961 Act as applied by the High Court does not seem to apply to the current proceedings.? The appellant also accepted that, in principle, publicity is an indispensable aspect of the administration of justice.? However, she submitted that this was a suitable case for a non-identification order to be made pursuant to s. 27 of the Civil Law (Miscellaneous Provisions) Act, 2008 ("the 2008 Act") as she has a medical condition.? The appellant stated that there was evidence before the Court revealing her medical condition.? She asserted that her identification on this basis would likely cause undue stress to her, and that the making of the order would not be prejudicial to the interests of justice.? Therefore, the appellant submitted that this Court should anonymise her name by using the initials "LA" in any document or judgment it publishes in respect of this case.

136. Section 27(1) and (2) of the 2008 Act provide that in any civil proceedings, a person with a medical condition may, at any stage, make an application to the court for an order prohibiting the publication or broadcast of any matter relating to the proceedings which would, or would be likely to, identify the relevant person as a person having that condition.? Section 27(3) permits the Court to grant an order if it is satisfied of the following:

"(a) the relevant person concerned has a medical condition,

(b) his or her identification as a person with that condition would be likely to cause undue stress to him or her, and

(c) the order would not be prejudicial to the interests of justice."

137. In the present case, the appellant has not formally made an application under s. 27(1).? There has been no discussion or revelation of her medical condition in this judgment such as to make her identifiable as a person "with that condition ... likely to cause undue stress" (emphasis added) to her under s. 27(3)(b).? This judgment does not go further than to reveal that the appellant has a medical condition.? The same can be said for any concern arising in relation to the broadcast of the hearing in this case, directions have been given to remove any reference to the appellant's medical condition/treatment.?

138. I am therefore satisfied that there are no grounds in this case for anonymity.? There are no matters arising in this judgment which would, or would be likely to, identify the appellant as having a particular medical condition as per s. 27(1).? It follows that any such order under s. 27(3) would be prejudicial to the interests of justice, where there is a constitutional imperative for open justice under Article 34 of the Constitution and the limited exception under s. 27 of the 2008 Act is not met.

Conclusion

139. This appeal presents the opportunity to look again at the well-established principle that where there is an adequate remedy by way of an alternative appeal, then recourse to judicial review may be disallowed. ?The multifaceted rationale for that requirement is set out at paragraphs [49] to [58]. ?This judgment draws together general principles relating to the requirement to exhaust alternative remedies and these are set out at paragraph [105].? Starting with the default position that alternative remedies must be exhausted; these principles will provide guidance for litigants and judges in applications for judicial review and applications for leave to apply for judicial review.

140. Applying the above principles to the proper interpretation of the remedies available under the 2005 Act, the appellant had available to her an adequate alternative remedy in the form of an application to the Chief Appeals Officer under s. 318 to revise the decision of the appeals officer.? She has failed to exhaust that remedy and her application for judicial review ought to have been refused.

141. I would therefore dismiss the appeal.

Result:     Dismiss

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