Exceptional Threshold to Set Aside Leave Reaffirmed, with a Duty‑of‑Candour and Intention‑to‑Defend Requirement for Public Bodies: Commentary on Doyle & Anor v Dublin City Council [2025] IEHC 441

Introduction

This commentary examines the High Court of Ireland’s judgment in Doyle & Anor v Dublin City Council & Ors [2025] IEHC 441 (O’Donnell J., 1 August 2025). Dublin City Council (DCC) applied to set aside a prior grant of leave to the applicants, Declan Doyle and Amatrek Limited, to pursue judicial review. The leave had authorized challenges to three DCC decisions arising from building control processes concerning fit-out works at adjoining premises on Fleet Street, Dublin 2:

• the invalidation of a commencement notice (17 May 2021),
• an enforcement notice (2 August 2022), and
• the refusal to register a certificate of compliance on completion (CCC) (4 December 2023).

DCC’s strike-out motion targeted the first two decisions on the primary basis that the challenges were out of time, and initially raised (but later did not pursue) a serious allegation of material non-disclosure. No statement of opposition was filed by DCC before bringing the set-aside motion. The second and third named respondents (the Minister and the State parties) did not participate.

The key issues before the Court included: (i) the stringent principles governing applications to set aside leave; (ii) whether delay alone made this the “plain case” in which leave should never have been granted; and (iii) the appropriate procedural safeguards where a public body invokes the set-aside jurisdiction without having delivered opposition papers.

Summary of the Judgment

The High Court refused DCC’s application to set aside the grant of leave. Reaffirming the exceptional nature of the set-aside jurisdiction, O’Donnell J. held that DCC had not discharged the “heavy” negative burden of showing that the grant of leave was plainly wrong or that the underlying application, including the request for an extension of time, was clearly unmeritorious and bound to fail (paras. 8, 38, 46).

The Court distinguished cases where delay can be decided pre-trial and emphasized that this application had effectively become a “proxy trial” given its volume and contested merits (para. 40). While recognizing DCC’s public safety concerns, the Court held these were disputed and not suitable for determination at this interlocutory stage (para. 40). The Court further clarified important procedural expectations for public bodies: where a set-aside application is brought without a statement of opposition, the moving party must clearly state compliance with the duty of candour and the intention to fully defend the proceedings if the motion fails (para. 29). The Court also admonished the floating and un-withdrawn allegation of material non-disclosure as inappropriate, though not dispositive (paras. 30–31).

The matter was adjourned to the Non-Jury Judicial Review directions list with a recommendation for acceleration. The Court indicated that the applicants should have the costs of the motion, with the effect of any costs order stayed pending determination of the main proceedings (para. 50).

Analysis

Precedents Cited and Their Influence

• Adam & Iordache v Minister for Justice [2001] 3 IR 53 and Gordon v DPP [2002] 2 IR 369: The Supreme Court authorities anchor the modern Irish approach to setting aside leave. The Court reiterated that leave is granted on a low threshold—an arguable case on the assumed facts—and that while the High Court retains an inherent jurisdiction to set aside leave, it must be “exercised sparingly and only in a very plain case” (para. 7). O’Donnell J. follows the line of McGuinness J. (as approved by Murray J.) and Fennelly J. in Gordon, emphasizing:
  • Leave is a light-burden filter;
  • Set-aside is a heavier, negative burden on the moving party; and
  • The jurisdiction is to be used exceptionally to avoid converting interlocutory procedures into pre-emptive trials.
• C.S. v Minister for Justice [2005] 1 IR 343: Cited among Supreme Court authorities in the line of jurisprudence on set-aside and leave principles (para. 4).
• Kelly & Others v An Bord Pleanála [2022] IEHC 238 (Holland J.): O’Donnell J. “gratefully adopt[s]” Holland J.’s detailed synthesis of the authorities (para. 4). The decision is used as an analytical scaffold, confirming the sparing nature of the set-aside jurisdiction and the analogy to striking out clearly unsustainable claims (para. 5).
• Chinoy (Bingham LJ) as approved by McGuinness J. in Adam: The Court quotes Bingham LJ’s classic caution: set-aside procedure should be “invoked very sparingly” to avoid creating a new layer of satellite litigation and costs, and is appropriate only where leave “plainly should not have been granted” (para. 7).
• Arthropharm (Europe) Ltd v HPRA [2022] IECA 109: The Court of Appeal reiterated the obligation under Order 84, r.21 for an applicant seeking an extension to identify on oath why proceedings were not brought in time and explain the intervening delay (para. 33). O’Donnell J. distinguishes Arthropharm as a case where full affidavits and opposition were in place and the extension issue was suitable for resolution as a preliminary issue (paras. 43, 42).
• McD v Commission to Inquire into Child Abuse [2003] 2 IR 348: An example where the High Court set aside leave on delay grounds, in a context of a statutory scheme emphasizing finality and demonstrable prejudice to administrative processes and third-party rights. There, a statement of opposition had been filed and reasons for delay were plainly inadequate (paras. 42, 44–45).
• De Róiste v Minister for Defence [2001] 1 IR 190: Cited for the proposition that, depending on circumstances, it may be more appropriate to assess extension-of-time issues at a substantive hearing (para. 45).
• Elsharkawy v Minister for Transport [2024] IECA 258: Relied on for the public law duty of candour—a salient backdrop to O’Donnell J.’s procedural guidance that a public body moving to set aside leave without a statement of opposition must clearly affirm candour compliance and an intention to fully defend if the motion fails (para. 29).

Legal Reasoning

The Court distilled and applied the set-aside principles (paras. 4–8) to the unusual procedural posture presented:

• Exceptional threshold reaffirmed: The jurisdiction to set aside leave exists but must be used “very sparingly” and “in a very plain case” (paras. 5, 7–8). The moving party carries a heavy, negative burden to establish that leave plainly should not have been granted—more onerous than the light burden shouldered by an applicant at the ex parte leave stage (paras. 5, 7–8).
• Delay can ground a set-aside—but rarely without full context: While delay may justify setting aside leave, each case is fact-sensitive. The Court accepted that delay-based set-aside is conceptually possible (paras. 38, 42), citing examples where it has succeeded (Arthropharm; McD). But in Doyle, the procedural and evidential posture did not make this a “plain” case:
  • Leave had been granted with the extension-of-time question expressly in play (paras. 10–11, 34, 39);
  • The applicants had put forward reasons on oath for delay (paras. 24–26, 39);
  • The volume and contested nature of materials (seven folders including authorities) signalled that the motion had become a proxy trial (para. 40).
  In such circumstances, a unitary trial was preferable, especially given the interconnection between the three DCC decisions (para. 47).
• Avoiding “proxy trials” at the interlocutory stage: O’Donnell J. cautioned that set-aside motions should not morph into de facto trials before the substantive pleadings and affidavits close. Where the merits are heavily contested and fact-sensitive (including public safety concerns), the proper forum is the main hearing (paras. 40–41, 49).
• Public bodies: candour and intention to defend as procedural safeguards: The Court gave explicit guidance that where a public body moves to set aside leave without having filed a statement of opposition, it must clearly state that the duty of candour is understood and complied with, and that if unsuccessful it will defend the proceedings fully. An application to set aside “cannot be made” where the moving party does not intend to oppose the grant of relief (para. 29). This ensures the set-aside jurisdiction is not used tactically or without full engagement on the merits if the motion fails.
• Handling allegations of material non-disclosure: DCC did not pursue its non-disclosure allegation and did not formally withdraw it. The Court criticized this as “unsatisfactory” given the seriousness of such allegations, noting they should not be “floated and then abandoned without explanation.” While not determinative here, such conduct is discouraged (paras. 30–31).

Applying these principles, the Court found that DCC had not demonstrated that the case—including the extension-of-time application—was bound to fail. The complex, interlocking issues and the applicants’ sworn explanation for delay meant this was not the “very plain case” for set-aside. Delay arguments remain open for DCC at the full hearing (paras. 46–48).

Impact and Practical Implications

• Raised bar for delay-based set-aside motions: Doyle makes clear that delay alone will rarely justify setting aside leave unless the case is plainly and incontrovertibly out of time with no sustainable explanation, or where the evidential record is complete and prejudice/finality concerns are acute (as in McD). Courts will be slow to determine extension-of-time issues on a set-aside motion where the facts are interwoven with the merits or where the leave judge has already contemplated the extension question.
• Procedural discipline for public bodies: Public authorities invoking the set-aside jurisdiction without a statement of opposition must:
  • explicitly confirm compliance with the duty of candour; and
  • state an intention to fully defend the proceedings if the motion fails (para. 29).
  This is a meaningful procedural clarification that will shape practice: set-aside motions cannot be a half-measure or a vehicle to avoid substantive engagement.
• Discouraging “proxy trials”: The judgment reinforces that set-aside applications must be tightly focused. Where the motion requires extensive factual and legal argumentation, or where multiple interlinked decisions are under challenge, courts will prefer to reserve issues for a single, unitary trial.
• Case management and expedition: By recommending accelerated directions and indicating costs for the applicants (effect stayed), the Court signals that the better route in complex, contested judicial review is to bring the substantive hearing forward rather than expand interlocutory skirmishing (para. 50).
• Substantive building control disputes: Without addressing the merits, Doyle illustrates that disputes spanning commencement notices, enforcement notices, and CCC registration under the Building Control regime often raise interlocking legality and timing issues. Courts are likely to prefer a holistic hearing over piecemeal interlocutory determinations, especially where an extension of time is said to be “intimately tied up” with later decisions (para. 25).

Complex Concepts Simplified

• Leave to apply for judicial review: A permission stage where the applicant must show an arguable case on assumed facts. It is a low threshold—a filter to screen out plainly unarguable claims.
• Set-aside of leave: An exceptional jurisdiction allowing the Court to revoke leave after inter partes argument. It is used sparingly and only in very plain cases where leave clearly should not have been granted.
• Order 84, Rule 21 (timing): Judicial review must be commenced promptly and within the rule-based time limit unless there is a good reason to extend time. An applicant must explain on oath both the failure to act within time and any further delay until issue (see Arthropharm).
• Duty of candour: A public law obligation on decision-makers/respondents to assist the court with full and accurate disclosure of relevant facts and reasoning, including adverse matters. Doyle uses this to require public bodies seeking set-aside without opposition papers to affirm candour and commit to defending the proceedings if the motion fails (para. 29).
• “Proxy trial” concern: Courts resist allowing interlocutory motions (like set-aside) to become, in effect, the substantive trial—especially where evidence is contested or incomplete and the issues are complex.
• Building Control lexicon (as pleaded):
  • Commencement Notice: A notice to the building control authority before starting works (Building Control Regulations).
  • Enforcement Notice: A formal notice alleging non-compliance and requiring steps to secure compliance.
  • Certificate of Compliance on Completion (CCC): A post-completion certification to be registered, signifying compliance.
  The applicants say the timing and validity of these instruments are interlinked; the Court did not rule on the merits at this stage.

Conclusion

Doyle & Anor v Dublin City Council is a robust restatement—and a subtle refinement—of the law on setting aside leave in judicial review. The Court forcefully reiterates the exceptional nature of the jurisdiction, the heavy negative burden on the moving party, and the systemic need to avoid “proxy trials.” Importantly, the judgment also articulates a practical procedural requirement for public bodies: if they move to set aside leave without having filed opposition papers, they must expressly confirm compliance with the duty of candour and commit to fully defending the proceedings if the motion fails. Serious allegations such as material non-disclosure must be responsibly made and, if not pursued, formally withdrawn.

On the facts, the intertwined nature of the impugned decisions, the applicants’ sworn explanations for delay, and the sheer extent and contestation of the issues made this far from the “very plain case” needed to set aside leave. Delay arguments remain very much alive—but they belong at the substantive hearing. The judgment thus promotes efficient case management and doctrinal coherence: highly contested matters should be resolved at trial, not through interlocutory detours that risk duplicating or pre-empting the main hearing.

Key takeaway: Doyle confirms that applications to set aside leave are a narrow safety valve against clearly unmeritorious cases—not an alternative route to litigate extensions of time or complex merits disputes. Public bodies, in particular, are put on notice that candour and a genuine intention to defend are prerequisites to invoking that safety valve.