Murphy v. Roscommon County Council (High Court, 2025): A Landmark on (1) the Low “Arguable Grounds” Threshold for Judicial Review of a Circuit Court’s Refusal to State a Case and (2) the Obligation Not to Name Trial Judges as Respondents

Introduction

This commentary examines Murphy & Anor v. Roscommon County Council [2025] IEHC 447, a judgment of Mr. Justice Garrett Simons delivered on 31 July 2025. The decision, though rendered at the leave stage of judicial review, is significant on two fronts:

1. It re-calibrates the threshold for granting leave where an applicant challenges a Circuit Court’s refusal to refer a consultative case stated to the Court of Appeal.
2. It clarifies the proper titling of judicial review proceedings by reaffirming that a trial judge should not be joined as respondent where no allegation of mala fides or personal misconduct is made (Order 84, r.22(2A) RSC).

The case arises out of criminal proceedings brought against Con and Cathy Murphy for alleged non-compliance with planning enforcement notices under Part 8 of the Planning and Development Act 2000 (“PDA 2000”). Having failed in the District Court and on appeal in the Circuit Court, the Applicants sought to defend the prosecution on various grounds, many of which questioned the validity of the underlying enforcement notices—particularly whether the courts could “look behind” such notices in criminal proceedings.

When the Circuit Court refused to refer any questions of law to the Court of Appeal, the Applicants initiated these judicial review proceedings, contending that the refusal was legally incorrect and that the court misapprehended its jurisdiction. The High Court was asked, ex parte, to grant leave to pursue that challenge.

Summary of the Judgment

• Leave Granted: Justice Simons held that the Applicants had met the “low bar” of demonstrating arguable grounds that the Circuit Court erred. Accordingly, leave to apply for judicial review was granted on all pleaded grounds.
• Central Issue Recognised: Whether, in criminal enforcement proceedings, the District and Circuit Courts may inquire into—i.e., “look behind”—the validity of a planning enforcement notice remains an open and arguable question.
• Discretion under s.16 (Courts of Justice Act 1947): While broad, the discretion must be exercised judicially. The High Court found it arguable that the Circuit Court misapplied the threshold in refusing a case stated.
• Proper Title of Proceedings: Re-affirming Order 84 r.22(2A) and the Court of Appeal decision in M. v. M. [2019] IECA 124, the judge ordered that the Circuit Court judge be removed from the title and replaced by Roscommon County Council as sole respondent.
• Limited Stay: A stay on the Circuit Court orders was granted until 27 August 2025, with liberty to apply for an interlocutory injunction thereafter.

Detailed Analysis

A. Precedents Cited & Their Influence

1. McKenna v. Deery [1998] 1 IR 62
   – Established the wide but judicially bounded discretion of the Circuit Court under s.16 of the 1947 Act. Justice Simons quoted the Supreme Court’s “substantial, weighty and solid grounds” test, anchoring his analysis of whether an arguable misapplication occurred.
2. M. v. M. [2019] IECA 124, [2019] 2 IR 402
   – Confirmed that trial judges should not be joined as respondents in judicial review absent allegations of mala fides. This precedent dictated the amendment of the proceedings’ title.
3. MD v. Board of Management of a Secondary School [2024] IESC 11
   – Authority for the proposition that interim injunctions (or stays) pending judicial review must satisfy strict criteria. Relied upon to limit the stay to a short temporal window.
4. Secondary Source: Browne & Simons, Simons on Planning Law (3rd ed., 2021) §§11-214–11-216.
   – Cited for highlighting that the permissibility of “looking behind” enforcement notices in criminal proceedings is unresolved at High Court level. This scholarly commentary lent weight to the arguable nature of the Applicants’ position.

B. The Court’s Legal Reasoning

The judgment proceeds in two principal analytical steps:

1. Assessment of “Arguable Grounds”
   Justice Simons reiterated that at the leave stage the court need not decide whether a case will ultimately succeed—only whether it is arguable. He found arguable error in the Circuit Court’s approach for three reasons:
   • It treated challenges to the validity of enforcement notices as exclusively a matter for judicial review, without acknowledging authority suggesting the contrary.
   • It therefore declined to consider an overarching question for a case stated—namely, whether “looking behind” is permissible—potentially truncating its discretion.
   • Some of the specific questions proposed by the Applicants (e.g., EU law issues under the Habitats Directive) might reasonably merit appellate clarification.
2. Proper Identification of Parties
   Applying Order 84 r.22(2A) and M. v. M., the court held the trial judge was not a legitimate contradictor. Naming the judge would offend judicial immunity principles and the separation of powers. Roscommon County Council, as prosecuting authority, was the correct respondent.

C. Potential Impact on Future Litigation

• Lower Procedural Barrier: Practitioners now have authoritative confirmation that where a Circuit Court refuses to state a case, the High Court will grant leave for judicial review if any arguable error is shown. This may foster more challenges, compelling Circuit Court judges to give reasons and to engage with overarching legal questions.
• Planning Enforcement Strategy: Local authorities must be alert to the possibility that defendants can question the validity of an enforcement notice during a prosecution—not only by separate judicial review. This could reshape charge-sheet drafting and evidence preparation.
• EU Environmental Law: The court acknowledged, albeit implicitly, that Habitats Directive issues may be raised in the criminal forum. This underscores the cross-pollination between EU environmental law and domestic planning enforcement.
• Procedural Hygiene: The strengthened prohibition on naming judges will likely prevent procedural missteps, costs applications, and appeals on that discrete point.

Complex Concepts Simplified

Consultative Case Stated

A statutory mechanism (s.16, Courts of Justice Act 1947) allowing a District or Circuit Court judge to refer specific questions of law to a higher court (now the Court of Appeal) during a live case for authoritative guidance.

“Looking Behind” an Enforcement Notice

The idea that in subsequent prosecution for non-compliance, a defendant may challenge the validity of the original notice (e.g., procedural, substantive, or EU law defects) rather than only admitting or denying breach.

Leave (Permission) for Judicial Review

A preliminary filter whereby an applicant must show that the proposed grounds are arguable (i.e., not doomed to fail). The substantive merits are examined only after leave is granted.

Order 84, r.22(2A) RSC

A procedural rule forbidding the naming or joinder of a trial judge in judicial review proceedings unless personal misconduct is alleged. Ensures judicial independence and proper identification of the correct respondent(s).

Conclusion

Murphy v. Roscommon County Council sets an influential precedent despite being a leave decision:

• It confirms that arguable grounds remain a deliberately low threshold, even where the challenge concerns a Circuit Court’s discretionary refusal to state a case.
• The High Court signalled that the unresolved jurisprudential issue—whether criminal courts can “look behind” planning enforcement notices—deserves appellate clarification.
• The judgment re-emphasises procedural propriety: trial judges enjoy immunity and are not to be named as parties absent specific allegations of wrongdoing.

Practitioners in planning, environmental, and criminal law should heed this decision. Local authorities may need to adapt strategies, and defendants have a rejuvenated pathway to contest enforcement notice prosecutions. Procedurally, counsel must scrupulously verify party titles to avoid unnecessary costs and delay.