Litigation Restraint Orders as a Discretionary Factor in Extending Time for Judicial Review: Commentary on Leahy & Ors v Medical Council of Ireland & Ors [2025] IEHC 503

Introduction

This commentary examines the High Court of Ireland’s decision in Leahy & Ors v Medical Council of Ireland & Ors [2025] IEHC 503, delivered by Bolger J. on 17 September 2025. The case concerned an application for leave to seek judicial review, brought on notice to multiple State and regulatory respondents. At its core, the application sought to challenge two longstanding matters arising from the circumstances of the first applicant’s birth in 2003: (1) a Health Information and Quality Authority (HIQA) report dated 8 May 2015, and (2) a Medical Council determination of 17 June 2021 affirming its Preliminary Proceedings Committee’s (PPC) view that no further action should be taken on a 2019 complaint.

The applicants—an adult son (the first applicant), his mother (the second applicant) who moved the application, and his stepfather (the third applicant)—also sought sweeping remedial orders (including apologies, compensation, mediation, and the “implementation of the Meenan report”). The Court confined itself to the only potentially justiciable relief in judicial review—certiorari—and refused leave on the basis that the proceedings were hopelessly out of time and that no compelling justification for an extension had been offered. The Court also considered prejudice, the underlying weakness of the pleaded case, and, notably, the presence of an existing litigation restraint order (LRO) as an additional factor weighing against extending time.

The decision is significant for its clear restatement of the extension-of-time principles, its explicit engagement with prejudice where records have been lawfully destroyed in the ordinary course of administration, and its express recognition that an existing LRO may form part of the discretionary matrix against an out-of-time application for judicial review.

Summary of the Judgment

Bolger J. refused leave to seek judicial review. The Court held:

The application was “hopelessly out of time”: it sought to challenge a HIQA report from 2015 (approximately 10 years old) and a Medical Council decision notified in June 2021 (approximately 4 years old). Judicial review is ordinarily subject to a short limitation period (generally three months from when grounds first arise) and is only extendable in the most exceptional circumstances.
No adequate or objectively grounded reasons were provided to justify extending time. Assertions of medical issues were unsupported by medical evidence, and the applicants’ history of actively litigating other claims during the relevant period undermined any contention that they were unable to act. Allegations regarding procedural irregularities and documentary issues had long been known to the applicants and did not explain the delay.
Prejudice weighed strongly against any extension: HIQA no longer retained relevant records in light of record destruction policies, and a medical practitioner implicated in the complaint had difficulty responding due to the passage of time. The Medical Council highlighted the inherent difficulty of investigating a 2003 birth many years later.
The underlying case appeared weak. The Court found the claims vague and unwieldy, lacking clearly articulated errors of law or fair procedures breaches. No specific relief was sought against several respondents (the Government, Attorney General, HSE, Minister for Health, Minister for Justice), further diminishing the merits at leave stage.
An existing litigation restraint order (LRO) against the first and second applicants—arising from previous litigation about the 2003 circumstances—was a contextual factor against extending time. While leave had been permitted to be moved on notice notwithstanding the LRO, the Court treated the LRO as part of the discretionary balance.
Costs: indicating the normal rule under s. 169 Legal Services Regulation Act 2015, the Court’s indicative view was that the respondents were entitled to their costs, subject to hearing the parties.

Analysis

Precedents Cited and Their Influence

The Court grounded its approach to delay and extensions of time in two key authorities:

M. O’S v Residential Institutions Redress Board [2018] IESC 61; [2019] 1 ILRM 149:
The Supreme Court permitted an extension of time in a case featuring genuinely exceptional circumstances. Bolger J. invoked M. O’S to emphasise that only the “most exceptional” cases warrant displacing the strict and short time limits for judicial review. The Court here found that the long delays (nearly a decade for one decision and four years for another) did not come close to that threshold, especially absent cogent, objective reasons.
Arthropharm v HPRA [2022] IECA 109:
Murray J. in the Court of Appeal underscored that any extension of time must be anchored in reasons that “objectively justify” the delay, sufficient to warrant the extension sought, while also accounting for prejudice to respondents or third parties. Bolger J. expressly adopted and applied this framework. In practical terms, subjective dissatisfaction with decisions, previously known grievances, or the lack of legal representation (especially where the litigant has otherwise been active in litigation) will not meet that standard. The Court’s methodical reference to prejudice—particularly lost records and the impracticality of investigating historical matters—is faithful to the approach Arthropharm prescribes.

The judgment also references two recent case management milestones in the same matter: Gearty J.’s decision allowing the leave application to be moved on notice despite the LRO (with a caution that the LRO may influence the Court’s discretion) and Hyland J.’s order imposing the LRO in November 2024, finding a pattern of repeated litigation raising the same issues. While not “precedents” strictly speaking, these rulings are part of the litigation’s procedural ecosystem and inform how the Court calibrated its discretion here.

Legal Reasoning

The legal reasoning follows the familiar structure for leave and delay in judicial review:

Time limit and the high bar for extension:
Judicial review is subject to a short limitation period (generally three months from the date when grounds first arose). The Court may extend time, but only for “good reason,” and the jurisprudence demands truly compelling, objective justifications—particularly where the delay is very long. Here, the applicants sought to revisit:
- A HIQA report issued in May 2015; and
- A Medical Council decision conveyed in June 2021, arising from a 2019 complaint about events in 2003.
The applicants offered no evidence-backed explanation for the long delays. Vague references to health issues were unsupported by medical evidence. The Court noted that the applicants were able to initiate multiple other proceedings between 2011 and 2024, which fundamentally undercut any suggestion of incapacitating circumstances.
Objective justification and prejudice:
Consistent with Arthropharm, the judge required reasons that objectively justify the delay and expressly evaluated prejudice. Prejudice was concrete and multi-faceted:
- HIQA had destroyed records in the ordinary course after a lengthy period, impairing the respondents’ ability to address the challenge and any potential re-investigation.
- A doctor involved in the complaint faced obvious forensic difficulties due to the passage of time.
- The Medical Council itself stressed the practical impossibility of meaningfully revisiting issues from a 2003 birth, especially where the complaint was only made in 2019.
The Court treated these as weighty considerations against any extension of time.
Underlying strength of the case:
The Court reaffirmed that it may consider the underlying strength of the proposed challenge when deciding whether to extend time. On the materials presented, the pleaded case was diffuse and imprecise, lacking clearly articulated public law errors. Moreover, no specific relief was even sought against several respondents. The only potentially cognizable public law relief was certiorari, and only insofar as an actual, reviewable decision was identified. This factor, too, pointed away from extending time.
Litigation Restraint Order as a discretionary factor:
A notable feature is the explicit treatment of the existing litigation restraint order as part of the discretionary calculus. The LRO had been imposed after a finding of repeated litigation raising the same issues. Gearty J. had previously allowed the leave application to proceed on notice, warning that the LRO might be relevant when exercising discretion. Bolger J. confirmed that the LRO is indeed a relevant contextual factor against an extension of time in judicial review. This is a useful clarification for practitioners: the presence of an LRO may not bar proceedings at the threshold, but it can count against discretionary relief—particularly where the proposed challenge re-traverses well-worn ground.
Non-justiciable reliefs:
The applicants’ request for apology, compensation, mediation, and “implementation of the Meenan report” falls outside the judicial review jurisdiction. The Court reiterated that the only relief even potentially available was certiorari (and only as against a reviewable decision). This underscores a recurring principle: judicial review is not a vehicle to obtain policy outcomes, restitutionary payments, or mediated settlements.

Impact and Implications

The decision provides several practical signposts for future cases:

Reinforced strictness about delay:
The Court’s description of the case as “hopelessly out of time” signals a continued robust approach to time limits. Exceptional extensions (as in M. O’S) are limited to extraordinary facts and tight evidential showings. Assertions unaccompanied by supporting evidence will not suffice.
Prejudice through record retention policies:
Regulators and public authorities often have legitimate retention-and-destruction policies. Where challenges are delayed, such policies can generate real prejudice that weighs heavily against extension. Applicants must anticipate this and act promptly; courts will protect the public interest in administrative finality and fair process for respondents and third parties.
LROs matter in the discretionary balance:
This judgment confirms that an existing LRO may be considered when a court assesses whether to extend time or otherwise exercise discretion. That is particularly salient where the proposed challenge perpetuates patterns of repetitive litigation over longstanding events. The decision thus provides litigants and respondents with clearer guidance on the practical effect of LROs at the leave stage.
Merits at the margins:
Courts may take a “merits glance” when deciding whether to extend time. If the pleaded grounds are vague, unfocused, or plainly misconceived as to remedies and respondents, the balance will not favour extension. This incentivises careful pleading and faithful tailoring of reliefs to what judicial review can lawfully provide.
Strategic lesson for professional regulation challenges:
Where the Medical Council’s PPC or Council has decided “no further action,” a challenge must be brought swiftly and precisely. Applicants should identify concrete public law errors (such as want of fair procedures or legal misdirection), and supply timely, cogent evidence. Late challenges to historic clinical events are likely to founder on both delay and prejudice.
Costs predictability:
The indicative view on costs—respondents to receive their costs under s. 169 LSRA 2015—reinforces the default rule. Applicants should price this risk when contemplating late or low-prospect applications.

Complex Concepts Simplified

Leave to seek judicial review:
In Ireland, a party must first obtain the High Court’s “leave” (permission) to bring judicial review. Leave is normally sought promptly and often ex parte. In some instances (as here), the Court may direct that leave be moved “on notice” to respondents.
Time limits:
Judicial review generally must be commenced within a short period (typically three months) from when the grounds first arose. The Court may extend time only for “good reason.” The longer the delay, the more compelling and objective the justification must be.
Certiorari, mandamus, declarations, injunctions:
Certiorari quashes unlawful decisions of public bodies. Mandamus compels a body to perform a duty. Declarations state legal rights or wrongs, and injunctions restrain unlawful action. Judicial review does not award damages or secure apologies; it polices public law legality.
Prejudice:
When considering extensions of time, the Court weighs prejudice to respondents and third parties. Lost records, faded memories, and institutional reliance on the finality of decisions count heavily against late challenges.
Litigation restraint orders (LROs):
An LRO curtails abusive or repetitive litigation. While not an automatic bar to fresh proceedings, an LRO is a relevant factor in the Court’s discretion—especially where a new challenge replicates old issues or is brought long out of time.
Exceptional circumstances:
Only truly extraordinary facts, supported by evidence, will justify extending time significantly beyond the norm. The Supreme Court’s decision in M. O’S exemplifies the narrowness of this category.

Practical Guidance Drawn from the Decision

Act quickly: if you intend to challenge a regulatory report or decision, move within the prescribed period. Delay is fatal absent exceptional, evidenced reasons.
Bring evidence: if you rely on health or other personal circumstances to excuse delay, provide medical or other independent evidence. Bare assertions will not suffice.
Identify reviewable decisions: judicial review quashes decisions, not narratives or general conduct. Pinpoint the specific decision and the legal error or procedural unfairness.
Tailor relief: do not seek remedies outside the judicial review jurisdiction (e.g., apologies, compensation, policy implementation). Such requests detract from the credibility of the application.
Anticipate prejudice: if the decision is old, address likely prejudice directly—explain how relevant records and evidence remain accessible and why a fair hearing is still possible.
Consider prior orders: if you are subject to an LRO, expect the Court to treat it as part of the discretionary balance against late or repetitive applications.
Plead with precision: avoid sprawling allegations. Focus on specific legal grounds—error of law, irrationality, breach of fair procedures—and the relief that judicial review can provide.

Conclusion

Leahy & Ors v Medical Council of Ireland & Ors [2025] IEHC 503 is a firm restatement of the law’s intolerance for delayed judicial review absent compelling, evidenced justification. The Court methodically applied the principles from Arthropharm and M. O’S to refuse an extension where the applicants offered no objective reasons for very substantial delay, and where prejudice to respondents and third parties was evident. The judgment also clarifies that an existing litigation restraint order may legitimately inform the Court’s discretion against extending time in judicial review, particularly where the proceedings perpetuate a pattern of repetitive litigation about long-past events.

Beyond its outcome, the decision is instructive in its emphasis on the limits of judicial review remedies, the need for focused and justiciable pleadings, and the practical realities of administrative record-keeping and forensic fairness. For litigants and practitioners alike, the message is clear: move promptly, plead precisely, support any claim for extension with objective evidence, and expect courts to guard both the finality of public law decisions and the integrity of the judicial process.