De Novo Circuit Court Appeals Cure Earlier Procedural Defects; Protective Costs Orders Outside Environmental Law Remain Exceptional

1) Introduction

In Webster v The Director of Public Prosecutions and Anor (Approved) [2026] IEHC 374, the High Court (Phelan J.) considered a litigant-in-person judicial review seeking to quash a Circuit Court conviction under the Covid-19 restrictions regime, alongside two interlocutory applications: (i) to strike out the Director of Public Prosecutions’ (“DPP”) opposition, and (ii) for a protective costs order (“PCO”).

The applicant had been convicted in her absence in the District Court on two summonses arising from her presence in Dublin city centre on 10 January 2021 during Covid-19 restrictions. She later obtained an extension of time to appeal. On a de novo Circuit Court appeal, one charge was dismissed, but the conviction for leaving her residence without reasonable excuse was upheld (with the fine reduced to €200). The judicial review attacked that outcome principally on notice, delay, disclosure, hearing-related fairness, and “reasonable excuse” grounds.

2) Summary of the Judgment

  • Strike-out refused: The Court held it has jurisdiction to strike out matters pleaded in a Statement of Opposition, but the remedy is exceptional. The DPP’s opposition was relevant and properly addressed the judicial review issues, including notice and fairness.
  • PCO refused: The Court reaffirmed the existence of an inherent PCO jurisdiction outside environmental cases, but applied a stringent test and found no public-interest features warranting costs protection in a fact-specific challenge to a €200 fine/conviction.
  • Judicial review refused: The Court found (i) the applicant had not established lack of notice, (ii) in any event, the de novo Circuit Court appeal cured any arguable District Court procedural deficit, (iii) fair procedures were afforded in the Circuit Court, and (iv) the conviction turned on credibility and evidence within jurisdiction, not on an error of law about what can constitute “reasonable excuse”.

3) Analysis

A. The strike-out application: scope, restraint, and relevance in judicial review pleadings

The applicant sought to strike out the DPP’s Statement of Opposition as allegedly irrelevant, prejudicial, and directed to the criminal merits rather than legality. Phelan J. rejected the contention that a Statement of Opposition is immune from strike-out because it is not a “pleading”, noting that judicial review documents can fall within the generic concept of “pleadings” as framed in Delaney and McGrath on Civil Procedure (5th ed., 2023), and holding that the Court has jurisdiction (Order 19 and/or inherent jurisdiction) to strike out pleas in a Statement of Opposition.

The controlling principle, however, was one of institutional restraint: a strike-out is a “drastic” or exceptional remedy and the Court should generally “err on the side of allowing the pleading to stand”. The judgment is notable for emphasising that, unlike the leave stage for applicants, respondents face no “permission threshold” in opposing judicial review; therefore, the system does not warrant aggressive gatekeeping of opposition pleadings absent classic vitiating features (irrelevance, scandalous matter, abuse of process, etc.).

On the applicant’s complaint that the DPP relied on material not before the Circuit Court, the Court drew an important distinction:

  • Merits justification constraint: material not before the trial court generally cannot be used to “support” the impugned decision, because a decision should stand or fall on what was available at the time.
  • Judicial review relevance: such material may still be admissible and relevant to (i) the nature of the judicial review grounds advanced (e.g., notice/service, discretionary relief considerations), and (ii) the Court’s discretion in granting relief.

The judgment also links admissibility and case-management to the duty of candour in judicial review: parties should place relevant material before the Court even if disputed, allowing the judge to determine weight and relevance rather than excluding material pre-emptively via strike-out.

B. Protective Costs Orders (“PCOs”) outside environmental law: acknowledged, but tightly confined

i) Precedents cited and their role

The applicant sought a PCO (including by invoking s. 50B of the Planning and Development Act 2000 “by analogy”). The Court rejected the statutory analogy (s. 50B is specific to its legislative context), but affirmed an inherent jurisdiction to make a PCO, tracing it through the following authorities (each cited to underline how rare and demanding such relief is):

  • Village Residents Association Ltd v An Bord Pleanála (No. 2) [2000] 2 I.R. 321, [2000] IEHC 34: early recognition that an exceptional jurisdiction exists.
  • Friends of the Curragh Environment Ltd v An Bord Pleanála [2006] IEHC 243: emphasis that PCOs require “most exceptional circumstances” and issues of general public importance.
  • Schrems v. Data Protection Commissioner [2014] IEHC 310: a rare non-environmental PCO granted where EU/constitutional/data protection issues had major public importance.
  • Tearfund Ireland Ltd v. Commissioner of Valuation [2020] IEHC 621 and J.S. (A Minor) v. Minister for Education [2023] IEHC 80: refusals illustrating that even socially significant cases may fail the “public interest + merit” threshold.
  • Browne v. An Taoiseach [2023] IEHC 205: adopted as the structured statement of conditions for a PCO (including prospects of success, special public importance, absence of private interest, fairness, and the likelihood the case will be discontinued without protection).
  • Dunne v. Minister for the Environment [2007] IESC 60: referenced for public interest costs principles (though not itself a PCO decision).
  • O'Doherty & Waters v. Minister for Health, Ireland and the AG [2022] IESC 32: distinguished as involving fundamental issues of general importance not present here.

ii) Application of the Browne framework

Applying Browne v. An Taoiseach [2023] IEHC 205, the Court held the application failed at multiple levels:

  • No point of special/general public importance: the case did not challenge the vires or constitutionality of the Covid regime; it was a fact-specific attack on one conviction.
  • Private interest present: the proceedings were driven by the applicant’s personal criminal outcome, not a public-interest objective.
  • Merits/prospects deficiency: even on a preliminary assessment, the Court considered the substantive grounds weak.
  • No demonstrated “but for” deterrence: the case was pursued regardless (the PCO was sought after opposition and was heard with the merits), undermining the claim that costs risk prevented access to justice.
  • Systemic considerations: the Court stressed the role of adverse costs in discouraging unmeritorious proceedings and protecting scarce court resources.

A notable aspect of the reasoning is the Court’s explicit refusal to expand PCO doctrine through broad “access to justice” rhetoric where the proceedings are not demonstrably of general importance and where the litigation posture does not show that costs risk would stop the case.

C. Substantive judicial review: de novo appeal as a curative mechanism; limits of review of factual findings

i) Notice/service and the curative effect of a de novo appeal

The Court treated notice as both a factual and remedial issue. Factually, it found “ample evidence” of notice (personal service and further notifications) and emphasised the applicant’s failure to engage with that evidence by replying on affidavit or seeking cross-examination.

Doctrinally, the Court held that even if the applicant’s District Court notice complaint were accepted, the de novo nature of the Circuit Court appeal “cured” any such procedural deficiency: the appeal was a full rehearing with evidence from both sides, and the conviction under review was the Circuit Court’s conviction on the rehearing.

ii) Fair procedures, disclosure, and hearing accommodation

The applicant alleged disclosure deficits and an inability to hear. The Court rejected these complaints by focusing on practical opportunities and what occurred on the record:

  • Disclosure: it was open to seek disclosure in the Circuit Court; evidence indicated no such application was made.
  • Hearing fairness: the Digital Audio Recording showed active measures by the Circuit Court judge to ensure the applicant could hear and participate, and showed full engagement and cross-examination.
  • Outcome consistency with fairness: the acquittal on one charge underscored that the Circuit Court judge scrutinised the evidence rather than rubber-stamping the prosecution.

iii) “Reasonable excuse”: law versus credibility

The judgment draws a clear line between (a) an error of law about what may constitute “reasonable excuse” under the Covid Regulations, and (b) a credibility finding about whether the applicant was in fact acting for such an excuse.

Phelan J. clarified that the applicable instrument was S.I. No. 701/2020 (not the instrument relied on by the applicant), but the dispositive point was that the Circuit Court judge did not decide that visiting a pharmacy could never qualify. Rather, the conviction rested on a factual conclusion that the applicant’s asserted reason (obtaining medication) was not believed—especially given the prosecution evidence that no such explanation was offered when asked. This was a classic trial-level evaluation of evidence and credibility, squarely within jurisdiction and not amenable to judicial review absent a jurisdictional error.

iv) Delay and prejudice

The Court rejected delay-based unfairness. It reasoned that (i) much of the asserted delay prejudice presupposed lack of notice, which was not established, and (ii) the supposed missing video evidence had weak probative potential on the decisive issue (whether a reasonable excuse existed and was credibly asserted), especially given concessions about what was or was not said contemporaneously.

v) Cross-examination and evidential challenge in judicial review

The Court referenced RAS Medical Limited v. Royal College of Surgeons in Ireland [2019] IESC 4 as referred to in Criminal Assets Bureau v. Routeback Media & Ors. [2025] IESC 34 to emphasise that where affidavit evidence is central, a party disputing it may need to pursue cross-examination. The applicant’s failure to do so contributed to the finding that key factual premises (notably, lack of notice) were not made out.

D. Impact of the decision

  • PCOs in non-environmental cases: the decision consolidates the message that, while the inherent jurisdiction exists, the Browne conditions will be applied strictly; “public interest” will not be inferred from the presence of constitutional language in a dispute that is essentially personal and fact-bound.
  • Pleadings/affidavit narrative in judicial review: respondents may plead and prove contextual material not before the original decision-maker where relevant to judicial review grounds and discretion; attempts to strike out such material face a high bar.
  • Criminal judicial review after a de novo appeal: where a Circuit Court appeal proceeds by full rehearing, alleged defects in District Court process (including notice) are unlikely, without more, to ground quashing of the Circuit Court outcome.
  • Reinforcement of review limits: challenges framed as legal errors will fail if, in substance, they seek re-evaluation of credibility and facts where there was evidence capable of supporting the conviction.

4) Complex Concepts Simplified

Judicial review
A procedure to challenge the legality of a decision-making process (jurisdiction, fairness, legality), not to re-try the facts or decide guilt/innocence afresh.
De novo appeal
An appeal by full rehearing: the appellate court hears evidence again and makes its own findings. This can “cure” earlier procedural problems because the final conviction rests on the rehearing, not the earlier decision.
Protective Costs Order (PCO)
An exceptional order limiting an applicant’s exposure to the other side’s costs if they lose, usually reserved for cases of special and general public importance where justice requires it.
“Reasonable excuse”
A statutory/Regulations-based defence: the legal question is what kinds of reasons can qualify; the factual question is whether the accused was genuinely acting for such a reason. This case turned on the factual/credibility question.
Duty of candour
In judicial review, parties are expected to put relevant information before the court. The court then decides what weight (if any) to give it.

5) Conclusion

[2026] IEHC 374 is a procedural and remedial judgment with three clear messages: (1) striking out opposition in judicial review is exceptional and will not be used to exclude relevant contextual evidence; (2) PCOs outside environmental litigation remain available in theory but will be granted only in truly exceptional, public-interest cases meeting stringent conditions; and (3) a de novo Circuit Court appeal, conducted with fair procedures, will ordinarily cure earlier District Court procedural complaints and will insulate trial-level credibility findings from judicial review absent jurisdictional error.