Wake up and Smell the Steaming Tar
Unsurprisingly, the Supreme Court has rejected an assertion that the National Monuments Act 2004 is unconstitutional. The controversy centres around the construction of the final phase of the M50 motorway near Carrickmines Castle. Those opposed to the building of the road were successful - partly - twice before the courts, but the Government moved to rectify the situation and it now appears as if the JCBs can swing back into action. All of which gives me the chance to dredge up a piece I wrote a few months ago about another aspect of the affair:
[blockquote]So, unless one of the more conservative Irish Supreme Courts comes abseiling to his rescue, Vincent Salafia is going to have to stump up the entire €600,000 his challenge to the construction of the M3 earned for the mocha sippers in the Law Library. But this isn’t the place to engage in an increasingly popular pastime of beating the anti-lawyer drum (or the slightly more avant garde one of bashing the current bench for its conservatism). Rather, we should ask if the fiscal condemnation visited on Mr Salafia is a sign of things to come. All over the country, groups of residents and determined individuals are retaining legal counsel to prevent the imposition of undesirable developments. But is it time for environmentalists and concerned residents to wake up and smell the steaming tar? Does the Salafia decision indicate that the courts have had enough of protracted legal challenges to decisions made by expert administrative tribunals?
Perhaps they have. After all, such expert bodies are important – apart from the planning authorities, examples include the Competition Authority, the Refugee Appeals Tribunal and the Personal Injuries Assessment Board. As the then Chief Justice, Thomas Finlay said in the early 1990s, the local planning authorities and An Bord Pleanála have “special skill, competence and experience in planning questions”. The courts, it goes without saying, do not. Further, the adversarial format that legal disputes take is often a poor means of answering complex questions about the balance between the needs of wildlife, wildlife lovers, commuters and neighbours.
Important too is the notion that decisions taken by expert bodies ought not to be interfered with lightly. As the former Supreme Court judge, Hugh O’Flaherty, once noted, “We do no service to the public in general, or to particular individuals, if we subject every decision of every administrative tribunal to minute analysis.” Where does this judicial attitude come from? Well, members of administrative bodies are appointed by virtue of their being knowledgeable in their particular fields. Further, one supposes that respected experts – who are subject to peer review – do not arrive at their findings lightly or whimsically. They may, on occasion, make errors, but it would do no justice if these were repeatedly corrected by the High Court: routine administrative decisions could be delayed for years and the taxpayer would have to foot the bill for not only costly wrangles over legal minutiae but for the economic burden of delay too. Why bother paying experts, national and international, handsome retainers for giving advice and taking decisions when the High Court will be the final arbiter? In short, the community at large has an interest in seeing roads built, waste disposed of and barren land developed. Of course, regard must be had to the concerns of the environment and wildlife, but those decisions ought to be taken by those who have expertise in striking the appropriate balance.
It is worth clearing out of the way any misconceptions you might have about the courts being there to ‘do justice’. The notion that, whenever aggrieved or treated unfairly, a citizen can grab a bewigged barrister and plead on his knees before the High Court is quite misplaced. In judicial review cases like these ones, judges are not there to ‘do justice’, right wrongs and hum in soothing tones about the litigant’s awful predicament. Judicial review of administrative action is concerned only with the manner in which a decision is made, not the result. It’s the process, not the outcome. For sure, the High Court will correct egregious errors made by administrative bodies, who might, for example, fail to have regard to constitutional rights or normal procedures, or arrive at their decisions by means of a sophisticated version of ‘Pin the Tail on the Donkey’.
But these mistakes are generally limited to less high-profile cases. Where major infrastructural projects like roads, or vital commercial developments are in question, everyone, knowing how high the cost of failure will be, goes out of their way to dot the i’s, cross the t’s and put little smiley faces in the o’s. To have the High Court intervene, a litigant has to prove that the decision taken “plainly and unambiguously flies in the face of fundamental reason and common sense”. That is a high fence to scale. Why is the fence so high? Because the judiciary are happy to render unto Caesar those things which are Caesar’s and leave well enough (expert bodies) well alone.
In a way, litigants like Mr Salafia have been victims of their own excess. The more cases that are taken, the more refined the law becomes: so, the better An Bord Pleanála gets at understanding that law and, thus, at ensuring that its decisions will not be overturned by the High Court.
The Salafia decision could be important. One is moved to wonder, in the wake of the recent revelation that Thomas ‘Slab’ Murphy has yet to cough up legal costs owed to the Sunday Times newspaper two decades after losing a libel action, whether or not Mr Salafia will actually have to endure a lifetime of, say, washing dishes in An Bord Pleanála’s canteen to repay his costs. That may never come to pass, but if the Supreme Court agrees with Justice Thomas Smyth that Mr Salafia has to foot the whole €600,000 bill, it will send a powerful message to all of those who, having made their case unsuccessfully before the planning authorities, wish to drag the process through the courts that they ought to be more cautious about proceeding. Nobody would ever wish for a situation where citizens were barred from the courts for want of money. But those of us sitting in traffic jams can justifiably say that batteries of experts with years of experience should speak louder than a protester with a megaphone and the number of a good senior counsel.
[/blockquote]
Perhaps a bit harsh in retrospect. Individuals do have the right to hold Government to account and it is no bad thing that they force officials to dot their is and cross their ts. Nonetheless, one can have too much of a good thing and Mr Salafia's string of challenges - for which he enjoys minimal popular or political support - are certainly excessive.
[blockquote]So, unless one of the more conservative Irish Supreme Courts comes abseiling to his rescue, Vincent Salafia is going to have to stump up the entire €600,000 his challenge to the construction of the M3 earned for the mocha sippers in the Law Library. But this isn’t the place to engage in an increasingly popular pastime of beating the anti-lawyer drum (or the slightly more avant garde one of bashing the current bench for its conservatism). Rather, we should ask if the fiscal condemnation visited on Mr Salafia is a sign of things to come. All over the country, groups of residents and determined individuals are retaining legal counsel to prevent the imposition of undesirable developments. But is it time for environmentalists and concerned residents to wake up and smell the steaming tar? Does the Salafia decision indicate that the courts have had enough of protracted legal challenges to decisions made by expert administrative tribunals?
Perhaps they have. After all, such expert bodies are important – apart from the planning authorities, examples include the Competition Authority, the Refugee Appeals Tribunal and the Personal Injuries Assessment Board. As the then Chief Justice, Thomas Finlay said in the early 1990s, the local planning authorities and An Bord Pleanála have “special skill, competence and experience in planning questions”. The courts, it goes without saying, do not. Further, the adversarial format that legal disputes take is often a poor means of answering complex questions about the balance between the needs of wildlife, wildlife lovers, commuters and neighbours.
Important too is the notion that decisions taken by expert bodies ought not to be interfered with lightly. As the former Supreme Court judge, Hugh O’Flaherty, once noted, “We do no service to the public in general, or to particular individuals, if we subject every decision of every administrative tribunal to minute analysis.” Where does this judicial attitude come from? Well, members of administrative bodies are appointed by virtue of their being knowledgeable in their particular fields. Further, one supposes that respected experts – who are subject to peer review – do not arrive at their findings lightly or whimsically. They may, on occasion, make errors, but it would do no justice if these were repeatedly corrected by the High Court: routine administrative decisions could be delayed for years and the taxpayer would have to foot the bill for not only costly wrangles over legal minutiae but for the economic burden of delay too. Why bother paying experts, national and international, handsome retainers for giving advice and taking decisions when the High Court will be the final arbiter? In short, the community at large has an interest in seeing roads built, waste disposed of and barren land developed. Of course, regard must be had to the concerns of the environment and wildlife, but those decisions ought to be taken by those who have expertise in striking the appropriate balance.
It is worth clearing out of the way any misconceptions you might have about the courts being there to ‘do justice’. The notion that, whenever aggrieved or treated unfairly, a citizen can grab a bewigged barrister and plead on his knees before the High Court is quite misplaced. In judicial review cases like these ones, judges are not there to ‘do justice’, right wrongs and hum in soothing tones about the litigant’s awful predicament. Judicial review of administrative action is concerned only with the manner in which a decision is made, not the result. It’s the process, not the outcome. For sure, the High Court will correct egregious errors made by administrative bodies, who might, for example, fail to have regard to constitutional rights or normal procedures, or arrive at their decisions by means of a sophisticated version of ‘Pin the Tail on the Donkey’.
But these mistakes are generally limited to less high-profile cases. Where major infrastructural projects like roads, or vital commercial developments are in question, everyone, knowing how high the cost of failure will be, goes out of their way to dot the i’s, cross the t’s and put little smiley faces in the o’s. To have the High Court intervene, a litigant has to prove that the decision taken “plainly and unambiguously flies in the face of fundamental reason and common sense”. That is a high fence to scale. Why is the fence so high? Because the judiciary are happy to render unto Caesar those things which are Caesar’s and leave well enough (expert bodies) well alone.
In a way, litigants like Mr Salafia have been victims of their own excess. The more cases that are taken, the more refined the law becomes: so, the better An Bord Pleanála gets at understanding that law and, thus, at ensuring that its decisions will not be overturned by the High Court.
The Salafia decision could be important. One is moved to wonder, in the wake of the recent revelation that Thomas ‘Slab’ Murphy has yet to cough up legal costs owed to the Sunday Times newspaper two decades after losing a libel action, whether or not Mr Salafia will actually have to endure a lifetime of, say, washing dishes in An Bord Pleanála’s canteen to repay his costs. That may never come to pass, but if the Supreme Court agrees with Justice Thomas Smyth that Mr Salafia has to foot the whole €600,000 bill, it will send a powerful message to all of those who, having made their case unsuccessfully before the planning authorities, wish to drag the process through the courts that they ought to be more cautious about proceeding. Nobody would ever wish for a situation where citizens were barred from the courts for want of money. But those of us sitting in traffic jams can justifiably say that batteries of experts with years of experience should speak louder than a protester with a megaphone and the number of a good senior counsel.
[/blockquote]
Perhaps a bit harsh in retrospect. Individuals do have the right to hold Government to account and it is no bad thing that they force officials to dot their is and cross their ts. Nonetheless, one can have too much of a good thing and Mr Salafia's string of challenges - for which he enjoys minimal popular or political support - are certainly excessive.
posted by Legal Affairs at 12:26 PM
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