Erosion of the Strike-Out Distinction & Clarification of Ministerial Non-Liability for Court Language Facilities

Comprehensive Commentary on O Cadhla v. An tAire Dlí agus Cirt agus Comhionannais & Ors ([2025] IEHC 376)

1. Introduction

O Cadhla v. An tAire Dlí agus Cirt agus Comhionannais & Ors concerns an Irish-language speaker facing multiple criminal summonses in the Cork District Court who sought judicial review of alleged systemic failures to provide Irish-language services (judges with adequate Irish, interpreters, Irish-language documentation, and timely disclosure). Leave to apply for judicial review had been granted ex parte. The first-named respondent, the Minister for Justice (“the Minister”), applied inter partes to have that leave set aside and the proceedings against him struck out, contending that he bears no legal duty in respect of the impugned matters.

The case raises two interconnected issues:

1. The scope and exercise of the High Court’s jurisdiction—statutory and inherent—to set aside leave and strike out judicial review proceedings that disclose no reasonable cause of action or are bound to fail.
2. The identification of the proper defendant where an applicant complains of deficiencies in court-related language services and case management.

2. Summary of the Judgment

Mr Justice Conor Dignam acceded to the Minister’s application, set aside the leave previously granted, and struck out the proceedings insofar as they were directed against the Minister. Key points include:

• The High Court possesses, and should exercise sparingly, jurisdiction to revisit leave and dismiss judicial review proceedings where it is clear that they reveal no reasonable cause of action or are certain to fail.
• Following the 2023 amendment of Order 19 rule 28 of the Rules of the Superior Courts, the practical distinction between the rule-based strike-out power and the Court’s inherent jurisdiction has largely disappeared.
• The Minister has no statutory or constitutional responsibility for (i) allocating judges, (ii) managing court lists, (iii) providing interpretation or translation services within the courts, or (iv) furnishing court files to accused persons. These are matters for the Courts Service, the judiciary, and, in criminal prosecutions, the Director of Public Prosecutions (DPP).
• Because the pleadings addressed failures exclusively attributable to those other actors, the case against the Minister was unsustainable and should be dismissed.
• The Court emphasised that the applicant could still pursue relief against the Courts Service or the DPP, neither of whom had sought strike-out.

3. Analysis

3.1 Precedents Cited and Their Influence

• Gordon v. DPP [2002] 2 IR 369 – authority for setting aside leave where an unmeritorious case “slips through the net”; quoted to stress exceptional nature of the jurisdiction.
• Adams v. DPP [2001] 2 ILRM 401 and Adam v. Minister for Justice [2001] 3 IR 53 – reinforce that leave may be revisited when an arguable case has not in fact been made.
• Leonard v. Dublin City Council [2007] IEHC 404 – Peart J outlined when the Court may strike out proceedings post-leave; relied upon for the “reasonably arguable case / bound to fail” tests.
• Classic strike-out authorities (Barry v. Buckley, Salthill Properties, Lopes, Keohane, Clarington Developments, Kearney) – collectively set the “rare and exceptional” threshold and the duty to give the plaintiff the “fullest benefit of the doubt”.
• Scotchstone Capital Fund [2022] IECA 23 and McAndrew [2023] IECA 43 – appellate restatement of strike-out principles, used as the primary framework by Dignam J.
• Mohan v. Revenue Commissioners [2025] IEHC 63 – Simons J observes that the 2023 amendment to Order 19 rule 28 “erodes” the old dichotomy between rule-based and inherent strike-out jurisdiction; Dignam J adopts that observation.

3.2 The Court’s Legal Reasoning

1. Jurisdiction to Re-Examine Leave. The leave stage functions as a filter against frivolous claims. Nevertheless, because it is sought ex parte, an unmeritorious case can sometimes be admitted. The Court may therefore, though “rarely and exceptionally”, revisit leave, applying the same “bound to fail” test as at the strike-out stage.
2. Unified Strike-Out Test Post-2023. Order 19 rule 28 now explicitly incorporates criteria previously found only in inherent jurisdiction. Consequently, the Court approached the application as if the same principles governed both sources of power.
3. Application of the Principles. Dignam J asked:
   • Do the pleaded facts, taken at their height, establish any legal duty on the Minister?
   • Is there any realistic possibility that evidence or amendment could cure the defect?
   Answering both in the negative, he concluded the proceedings were certain to fail against the Minister.
4. Absence of Ministerial Duty. The Judge scrutinised statutes governing the administration of justice:
   • Court Services Act 1998 – places responsibility for court support services (including interpreting) on the Courts Service, not on the Minister (s 5, s 13(2)).
   • The Irish Constitution – allocates the distribution of work to the judiciary, which is constitutionally independent of the Minister.
   • No legislation imposes on the Minister a duty to provide Irish-language‐competent judges, interpreters, or disclosure.
   Thus, even if systemic failures exist, they are not legally attributable to the Minister.
5. Standing and Proper Parties. Because the applicant sued only the Minister, yet asserted wrongs committed by other organs (judiciary, Courts Service, DPP), his claim lacked a necessary defendant. Although judicial review can be amended to add parties, the applicant had declined to seek such amendment despite notice.

3.3 Potential Impact of the Judgment

• Procedural Discipline in Judicial Review. Applicants must exercise care in identifying respondents with a specific legal duty. Naming the “State” or a politically visible minister will no longer suffice.
• Clarification of Responsibility for Language Rights. The ruling signals that litigation over Irish-language facilities must be directed at the Courts Service (for logistical matters) and at the DPP (for prosecution disclosure), not at the Minister for Justice.
• Reinforced Strike-Out Jurisdiction. By affirming that the 2023 rule change collapses the old distinction, the High Court encourages respondents to invoke Order 19 rule 28 or inherent power interchangeably where pleadings are fatally defective. Future applicants can expect earlier and more frequent challenges to leave.
• Indirect Effect on Irish-Language Policy. Although the applicant lost against the Minister, the Court left open the possibility of successful relief against other entities. This may push the Courts Service to audit and improve Irish-language supports to pre-empt similar litigation.

4. Complex Concepts Simplified

• Leave (ex parte) in Judicial Review: A preliminary permission granted without the other side present, intended as a filter against baseless cases.
• Strike-Out / Dismissal: A court order terminating proceedings before trial because they disclose no reasonable cause of action, are bound to fail, or are an abuse of process.
• Inherent Jurisdiction: The power courts possess by virtue of their status, independent of statutes or rules, to prevent abuse of their process and ensure justice.
• Order 19 rule 28: A procedural rule enabling strike-out/dismissal. After 28 September 2023 it expressly mirrors the inherent jurisdiction tests.
• Legitimus contradictor: The party properly positioned to contradict (oppose) the relief sought; if such a party is missing, the action may fail.
• Bound to Fail Test: Proceedings will be struck out if, even assuming all the plaintiff’s facts are true, the case has “not the tiniest chance” of success.

5. Conclusion

O Cadhla establishes that, in the post-2023 procedural landscape, the High Court will not hesitate to set aside leave and strike out judicial review proceedings where: (1) the wrong respondent is sued and (2) no plausible legal duty can be pleaded against that respondent. The judgment crystallises who bears responsibility for court-based Irish-language services—chiefly the Courts Service, not the Minister for Justice—and consolidates rule-based and inherent strike-out powers under a single, stringent standard. Litigants should therefore (i) identify the correct entities, (ii) articulate explicit statutory or constitutional duties, and (iii) be prepared to amend promptly if deficiencies are pointed out. The decision, while procedurally adverse to the applicant, refines the map for future rights-based challenges in the Irish courts.