L.A. v The Chief Appeals Officer & Ors

AN CHÚIRT 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 O’Donnell CJ. Charleton J. Woulfe J. Murray J. Donnelly J. Between/ LACRAMIOARA AMARIEI Appellant AND THE CHIEF APPEALS OFFICER, THE SOCIAL WELFARE APPEALS OFFICE AND THE MINISTER FOR SOCIAL PROTECTION Respondents JUDGMENT of Ms. Justice Donnelly delivered on the 25th 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. 1 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 2 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 3 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 4 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. 5 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 6 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 7 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 8 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. 9 The Context in which Abenglen was Decided 30. Prior to Abenglen, authorities 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 10 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 Gardaí 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. 11 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 12 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 13 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 14 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 Pleanála. 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 15 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 16 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 17 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 18 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, 19 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 Pleanála [1993] 1 IR 39 described An Bord Pleanála 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 20 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.” 21 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 22 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 Coimisiún Pleanála, 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 23 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 Pleanála. 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 Pleanála [1997] 1 IR 497 that the real question to be determined where an appeal lies is the relative 24 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. 25 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. 26 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 27 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 28 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. 29 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 Pleanála 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 Pleanála. 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, there 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 30 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 31 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 32 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 Pleanála, 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 33 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 I.R. 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 I.R. 516 and on the authorities cited therein, including my own judgment in Deely v. Information Commissioner [2001] 3 I.R. 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; 34 • 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 Pleanála (now An Coimisiún Pleanála), 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 35 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: 36 “(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 37 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. 38 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 39 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,