Date: Mar 20, 2026

Judicial Review is Not an Elective Alternative to Statutory Appeal (and District Judges Must Not Be Named Without Evidence of Mala Fides)

1) Introduction

In Q. T. v S. O'F. [2026] IEHC 168, the High Court (Gearty J.) refused an application to quash (certiorari) a District Court safety order made under the Domestic Violence Act 2018. The Applicant did not pursue the orthodox route of a statutory appeal to the Circuit Court. Instead, he attempted (i) to have the District Judge state a case under the Summary Jurisdiction Act 1857, and then (ii) to pursue judicial review alleging misapplication of the 2018 Act and unfairness in the original hearing.

A notable procedural aspect was the District Judge’s motion to have his name and title removed from the proceedings. The judgment therefore addresses both (a) when a judge may be named as a respondent and (b) the limits of judicial review where an adequate alternative remedy exists.

Although the Applicant framed the complainant as a “neighbour”, it emerged in the High Court hearing that she was also a former intimate partner—a fact central to the 2018 Act’s applicability and to the Court’s criticism of the Applicant’s disclosure obligations on an ex parte leave application.

2) Summary of the Judgment

Judicial respondent removed: The Court held the District Judge was entitled to be released and removed from the title. There was no evidence of mala fides sufficient to overcome judicial immunity or justify naming/joinder under O. 84 rule 22(2A).
Certiorari refused: Judicial review was refused principally because the Applicant had a clear, adequate alternative remedy: a de novo appeal to the Circuit Court against the safety order. Judicial review is a remedy of last resort and cannot be used to bypass statutory appeal structures.
No legal error identified: The District Court was entitled to proceed under s.6(1)(a)(iii) of the Domestic Violence Act 2018 (former intimate relationship). The Court rejected the Applicant’s late argument that the statute should include a “temporal proximity” limit; the Act contains none, and the Court noted the legislature had removed such a restriction that existed previously.
Unfairness allegations not made out: The Applicant provided no substantive account of the evidence before the District Court and did not show procedural unfairness so fundamental as to undermine the right of appeal. The restriction on personal cross-examination was consistent with s.16 of the 2018 Act.
Costs: The Court indicated a provisional “no order as to costs”, inviting short written submissions.

3) Analysis

3.1 Precedents Cited

(a) Naming/joining judges; the threshold of mala fides

O'Connor v. O'Donohoe and Cronly [2017] IEHC 830: The Applicant relied on this to argue that a judge’s interventions can render a hearing unfair and (he said) evidence bad faith. Gearty J. emphasised that O'Connor in fact demonstrates the opposite on the joinder point: disagreements with a judge’s approach—even substantial procedural issues—do not, without more, establish mala fides.
A.G. v. A Judge of the District Court [2023] IECA 311: Treated as confirming that to justify naming a judge as a respondent, one must establish deliberate bad faith. The Court uses this to underline that mala fides is not a label that can be made good by bare assertion.
Hall v. Stepstone Mortgage Funding Limited [2015] IEHC 737: Cited for the “flagrant and deliberate” character of conduct required to show bad faith.
G.P. v. N.S. [2025] IEHC 238: Used to distinguish bias from bad faith, relying on Administrative Law in Ireland: bias may exist objectively without conscious wrongdoing, whereas bad faith involves dishonesty.
Murphy v. Roscommon County Council [2025] IEHC 447: Central to the practical operation of O.84 r.22(2A). Simons J. is cited for the proposition that the judge’s name and title should be removed and that the practice of joining “a Judge” should cease, aligning procedure with judicial independence and immunity.
M. v. M. [2019] IECA 124 and Tallon v. DPP [2022] IEHC 322: Cited (via Murphy) as consistent authority supporting removal/non-joinder of judicial decision-makers absent a properly evidenced bad faith claim.
Brady v. Revenue Commissioners [2021] IECA 8: Noted as containing criticism (by Edwards J.) regarding non-joinder of a Circuit Court Judge, but the judgment records that M. v M. does not appear to have been cited there—highlighting some historical tension in practice, now addressed through the clearer approach reflected in Murphy.

(b) Judicial review principles; alternative remedies; court’s duty even if unopposed

G v. DPP [1994] 1 IR 374: Authority for the threshold that an applicant must show arguable grounds for leave.
Chubb European Group v. HIA [2020] IECA 91: Treated as key appellate authority that judicial review is generally barred where an adequate alternative remedy exists, unless it is inadequate or interests of justice demand otherwise. The Court applies this directly to the Applicant’s failure to use the de novo appeal.
Ballyboden Tidy Towns Group v. An Bord Pleanála and others [2024] IESC 4: Cited for the proposition that even where a respondent does not participate, the Court must still ensure proceedings accord with the efficient administration of justice; relief is not granted by default.
Burke v. O' Halloran [2009] IEHC 343: Cited to reinforce that litigants in person are equally bound by rules of procedure and evidence; self-representation does not confer procedural latitude to adopt inappropriate routes.

3.2 Legal Reasoning

(a) Scope discipline: the September order only

The Court carefully delineated the scope of the judicial review. Leave had been granted to challenge the September 2024 safety order only. Although the Applicant’s affidavit engaged heavily with the later November hearing (refusal to state a case), that decision was not within the leave order. The November transcript was considered only to the extent it illuminated allegations of bad faith and context, but it could not expand the relief sought as a matter of jurisdiction and procedural fairness.

(b) O.84 r.22(2A): evidence (not allegation) of bad faith is required

The Court treated the rule as doing real work: it is not enough to plead “mala fides” to justify naming a judge, because that would nullify the rule’s protective purpose. The Applicant’s complaints (interruptions, perceived pre-determination, refusal to entertain a case stated) were analysed as, at most, disagreement and frustration in adversarial engagement—falling far short of “flagrant and deliberate” dishonesty or misconduct.

Adopting the approach reflected in Murphy v. Roscommon County Council [2025] IEHC 447, the Court concluded the proper respondent is the legitimus contradictor—here, the complainant who obtained the safety order—rather than the judicial decision-maker.

(c) Judicial review as a remedy of last resort: appeal cannot be bypassed

The determinative reasoning on remedy was straightforward: the Applicant had a statutory right of appeal to the Circuit Court, heard de novo, capable of correcting factual or evaluative errors and producing a fresh order. The Court held the Applicant was not entitled “at his election” to bypass that route by attempting a case stated and then judicial review.

The judgment acknowledges the established exception: where first-instance unfairness is so fundamental that an appeal becomes the only true first fair hearing, judicial review may be appropriate. However, the Applicant did not demonstrate that level of unfairness on the evidence presented.

(d) Domestic Violence Act 2018: former intimate partners and (no) temporal limit

The Applicant’s core legal complaint (as presented at leave stage) was that the Act was wrongly applied to a “neighbour”. Once it emerged that the complainant was a former intimate partner, the statutory gateway in s.6(1)(a)(iii) was plainly engaged. The Court also rejected the late attempt to read a “temporal proximity” requirement into the subsection. The text contains none (“was in an intimate relationship ... prior to the application”), and the Court added a contextual point of statutory interpretation: where a temporal restriction existed pre-2018 and was removed by the Oireachtas, the courts should not reinsert it by interpretation.

(e) Fair procedures complaints: absence of an evidential platform

The Court emphasised the Applicant’s failure to provide a substantive account of what evidence was before the District Court in September, and his incomplete disclosure (including the relationship history). This mattered in two ways:

Merits review is not available: without the evidential platform, the High Court could not engage in reassessment of the safety-order evidence under the guise of judicial review.
Leave-stage good faith: the Court invoked the applicant’s obligation of uberrima fides in ex parte judicial review applications—relevant information must be placed before the Court whether helpful or not.

On cross-examination, the Court pointed to s.16 of the 2018 Act, which restricts personal cross-examination and allows for judicial control or appointment of a legal representative. On the limited material, the Court could not criticise the District Judge’s approach as unlawful.

3.3 Impact

Procedural discipline in domestic violence judicial reviews: The judgment signals that challenges to safety orders will rarely succeed by judicial review where a de novo appeal is available and capable of addressing alleged errors or unfairness.
Reinforcement of O.84 r.22(2A): The decision contributes to a growing body of authority (especially following Murphy) that judges should not be named or joined without a properly evidenced claim of dishonesty/bad faith. It discourages tactical naming of judges based on dissatisfaction with outcomes.
Clarity on s.6(1)(a)(iii) reach: The judgment underscores that the Domestic Violence Act 2018 extends to former intimate partners without an express time bar. This may influence how parties frame jurisdictional objections and may reduce futile arguments seeking to impose temporal limitations not found in the statute.
Practice point on pleadings and disclosure: Applicants must set out (at least in outline) the evidence and procedural events complained of; bald allegations of unfairness or “pre-determination” without a record or description will not ground relief.

4) Complex Concepts Simplified

Certiorari: A High Court order quashing an inferior court/tribunal decision. It is not a re-hearing on the facts; it targets legal error, jurisdictional error, or serious procedural unfairness.
Judicial review as “last resort”: If the law provides a practical, adequate appeal or alternative procedure, judicial review is usually refused. Courts protect the integrity of statutory appeal structures.
De novo appeal: An appeal heard afresh. The appellate court hears (or can hear) evidence again and makes its own decision, rather than merely reviewing for error.
Case stated (Summary Jurisdiction Act 1857): A mechanism to ask the Superior Courts to decide a defined question of law arising from a summary decision. It is not a route to re-argue facts or evidential weight.
Mala fides: Bad faith—dishonesty or deliberate wrongdoing. It is materially different from mistake, robust case management, or even objective bias.
Legitimus contradictor: The proper opposing party in judicial review—typically the person who benefited from the original decision (here, the safety-order applicant), not the judge who made the decision.
Uberrima fides: Utmost good faith. In ex parte applications (like judicial review leave), applicants must disclose all relevant facts, not merely those that support their case.

5) Conclusion

Q. T. v S. O'F. [2026] IEHC 168 reinforces two practical rules of high importance. First, judicial review cannot be used as an elective substitute for an available and adequate statutory appeal—particularly where the appeal is de novo and capable of curing alleged error. Second, the judgment strengthens the modern approach to removing judges from the title and proceedings unless there is evidence (not mere allegation) of mala fides sufficient to displace the protection reflected in O.84 r.22(2A).

Substantively, the decision also underscores the breadth of the Domestic Violence Act 2018: a complainant who “was in an intimate relationship” with the respondent may fall within s.6(1)(a)(iii) even years after the relationship ended, absent an express statutory time limit. The proper arena for disputing the factual basis for a safety order remains, in the ordinary course, the Circuit Court appeal.