Introduction

This ruling arises from an on‑notice application for leave to seek judicial review brought by Mr. Patrick John Rigney, a litigant in person, against Offaly County Council. The judicial review sought to quash the Circuit Court’s order (24 May 2023) which: (i) allowed an appeal against conviction for a breach of a closure notice under the Dog Breeding Establishments Act 2010, but (ii) affirmed conviction and fine for operating an unregistered dog breeding establishment.

The High Court was asked to grant leave on multiple grounds, many of which complained about the District Court process and the lawfulness of a closure notice never appealed under the statutory scheme. The application also challenged the validity of the prosecution summons on the basis that it did not specify the name of the appropriate District Court Clerk as required by section 1(6)(e) of the Courts (No. 3) Act 1986 (as amended). A key preliminary issue was timeliness under Order 84, Rule 21 of the Rules of the Superior Courts.

The central legal issues included:

• Whether leave could be granted when the application was out of time and no formal, affidavit‑grounded application for an extension of time had been made.
• Whether complaints about the closure notice and District Court proceedings were justiciable in a judicial review of the Circuit Court order.
• Whether the failure to specify the District Court Clerk’s name on the summons creates a jurisdictional defect (as opposed to a curable procedural irregularity).

Justice Phelan refused leave primarily on time grounds, but she also carefully delineated the limits of judicial review and signalled that, on a low threshold, a summons omitting the clerk’s name may be arguable as a jurisdictional flaw.

Summary of the Judgment

The High Court refused leave to seek judicial review for three principal reasons:

1. Out of time and no extension sought: The application was commenced outside the three‑month period applicable at the time (Order 84, r.21 RSC, since amended by S.I. 163/2024). Critically, the applicant did not apply for an extension of time, nor did he file any affidavit grounding such relief (Order 84, r.21(5)). In these circumstances, the Court could not grant leave.
2. Non‑justiciability and scope of review: Most of the applicant’s complaints (e.g., alleged unlawfulness of the closure notice; reputational damage; photographic evidence; perceived conflicts of interest; transcript concerns) were either not directed at the Circuit Court’s decision, were outside the proper scope of judicial review, or were unsupported by evidence.
3. Summons defect—arguable but time‑barred: On one point only—the omission of a legible name of the District Court Clerk on the summons—the Court acknowledged that, on a low threshold, there may be an arguable jurisdictional issue in light of Payne v Brophy & Ors [2006] 1 I.R. 560. However, because the proceedings were out of time and no properly constituted extension application was before the Court, leave still had to be refused.

Justice Phelan also observed that many of the applicant’s procedural missteps and misunderstandings might have been avoided with legal representation, and she emphasized the screening function of leave in judicial review to protect public bodies and court resources from unstateable or misdirected claims.

Detailed Analysis

1. Precedents Cited and Their Influence

• G v DPP [1994] 1 I.R. 374 and Gordon v DPP [2002] 2 I.R. 369:
  The Supreme Court’s leave standard requires an applicant to show a stateable ground and an arguable case. Gordon describes this as a “low threshold,” but it is still a threshold.
• Esmé/O.O. v Minister for Justice [2015] IESC 26:
  A point of law is “arguable” only if it has a real prospect of success on rational preliminary analysis.
• O’Doherty & Waters v Minister for Health [2022] IESC 32 and D.C. v DPP [2005] IESC 77:
  At leave on notice, the threshold remains arguability, unchanged; but the Court decides arguability in light of the respondent’s evidence and arguments.
• Heaney v An Bord Pleanála [2022] IECA 123:
  Strict approach to time limits in judicial review. It supported the conclusion that the application was out of time.
• MO’S v Residential Institutions Redress Board [2018] IESC 61; Arthropharm (Europe) Ltd v HPRA [2022] IECA 109; Duffy v Road Safety Authority [2015] IEHC 579:
  These authorities confirm that extensions of time must be formally sought and affidavit‑grounded under Order 84, r.21(5). The Court cannot simply overlook the absence of a proper extension application.
• DPP v Clein [1983] ILRM 76:
  Often cited for the proposition that defects in the summons can be cured by the accused’s appearance. This was the approach taken at first instance. However, the High Court highlighted the need to distinguish between purely procedural defects and fundamental jurisdictional flaws.
• Payne v Brophy & Ors [2006] 1 I.R. 560:
  Clarke J. drew a critical distinction between procedural defects (which may be curable) and defects going to jurisdiction (which are not). Justice Phelan considered that, on a low threshold, the omission of the District Court Clerk’s name on a summons required by statute might be arguable as a fundamental flaw.

2. Legal Reasoning

a) Timeliness is jurisdictional at leave: no extension, no leave

The applicant commenced his judicial review outside the three‑month time limit applicable at the time under Order 84, r.21 RSC. More importantly, he never applied for an extension of time and did not file any affidavit explaining the delay, as expressly required by Order 84, r.21(5). Justice Phelan held that, in the absence of a properly grounded extension application, leave could not be granted. This is fully in line with the Supreme Court and Court of Appeal authorities which require strict compliance and an affidavit verifying reasons for delay.

The Court emphasized the respondent’s “right of expedition,” the screening function of leave, and the efficient use of limited court resources. Given multiple adjournments already afforded and the historic nature of the events (dating back to 2021), the Court declined to defer the matter again to allow the applicant to “mend his hand.”

b) Scope of judicial review: what is and is not justiciable

Justice Phelan clarified core guardrails:

• Only the Circuit Court decision was amenable to judicial review: Complaints about District Court matters were moot because the District Court conviction had been superseded on appeal to the Circuit Court.
• The closure notice was not before the Circuit Court and was never appealed under section 21(4) of the 2010 Act: The applicant’s attempt to litigate its lawfulness in these proceedings was therefore misconceived. A specific statutory remedy existed and was not used; a later judicial review of the Circuit Court decision could not be used to mount a collateral attack on the closure notice.
• Collateral grievances were non‑justiciable or unsupported: Allegations of reputational damage, selective use of photographs, conflicts of interest, and transcript “alteration” were either outside the permissible scope of review or not proven.

c) The summons defect: arguable jurisdictional issue, but ultimately time‑barred

The Courts (No. 3) Act 1986, section 1(6)(e) requires that the “name of an appropriate District Court Clerk shall be specified on each summons.” The summons in this case bore initials but did not legibly specify the clerk’s name, although it identified Tullamore District Court Office. The Circuit Court treated any defect as technical, relying on jurisprudence suggesting that appearance cures defects.

Justice Phelan accepted that, notwithstanding the presumption of regularity in section 1(9) of the 1986 Act and the fact the applicant fully participated at trial, it is at least arguable (on a low threshold and in light of Payne) that a summons which fails to comply with a mandatory statutory requirement may be “fundamentally flawed” and thus jurisdictionally defective. That said, the Court did not decide the point because the application was out of time and no extension was sought. The signal to practitioners is nonetheless clear: ensure strict compliance with the summons requirements to avoid jurisdictional challenges.

d) Other complaints: fair procedures, conflicts, transcript

• Fair procedures: The applicant argued he was never “brought to the stand.” The Court noted he addressed the Circuit Court at length and cross‑examined witnesses; no unfairness arose from the fact that he did not give sworn evidence.
• Conflict of interest: The allegation that a solicitor previously consulted by the applicant somehow represented the respondent was confused and unparticularised; no unfairness in the Circuit Court’s process was shown.
• Transcript accuracy: Minor DAR transcription errors did not demonstrate alteration or omission that would ground relief.

3. Impact and Significance

a) Procedural discipline in judicial review

This judgment firmly reiterates a practical, procedural principle of recurring importance: if an applicant is out of time, leave cannot be granted unless there is a properly constituted, affidavit‑grounded application for an extension of time which satisfies the dual criteria under Order 84, r.21(3) and (5). The mere existence of a potentially arguable substantive ground is not enough to bypass timeliness requirements.

b) On‑notice leave: threshold unchanged, evidence matters

Following O’Doherty & Waters, the Court confirmed that the arguability threshold at leave does not become more demanding simply because the hearing is on notice. However, the Court will decide arguability in light of the respondent’s evidence and submissions. Applicants must be prepared to meet a record that may already contain rebuttal material.

c) Summons drafting in criminal/regulatory enforcement

The Court’s acknowledgment that a summons omitting the District Court Clerk’s name may be arguable as a jurisdictional defect is an important practice point for prosecuting authorities. Prosecutors and court offices should ensure that the clerk’s name is legibly specified, in addition to any signature or initials, to forestall jurisdictional challenges.

d) Substantive dog breeding regulation

Although not the focus of the leave ruling, the underlying prosecution reiterates that under the Dog Breeding Establishments Act 2010:

• “Dog breeding establishment” is triggered by having six or more bitches over six months of age and capable of being used for breeding (s.2), irrespective of whether they are actually bred from.
• Registration is mandatory once that threshold is met (s.9), and failure to register is an offence (s.22).
• Separate statutory remedies exist for improvement and closure notices (ss.20–21), with specific appeal routes which should be used promptly.

These points mattered in the Circuit Court’s approach: the applicant’s admission that there were more than six breeding‑capable bitches on site was fatal to the registration offence, regardless of whether he chose to breed only some of them.

4. Complex Concepts Simplified

• Judicial review vs appeal: Judicial review examines the legality of the decision‑making process, not the merits or factual findings. It is not a rehearing. Here, the High Court could not be invited to re‑try the case or re‑assess animal welfare facts.
• Leave to seek judicial review: A preliminary “screening” stage. The applicant must show a stateable ground and an arguable case. Where late, an extension of time must be formally sought and justified on affidavit.
• Extension of time: Under the (then) Order 84 rules, the applicant must show “good and sufficient reason” for delay and that the circumstances were outside their control or could not reasonably have been anticipated, verified on affidavit.
• Jurisdictional vs procedural defects (summons): Some defects (e.g., formatting) may be cured by the accused’s appearance. But if a defect goes to jurisdiction—such as non‑compliance with a mandatory statutory requirement—appearance will not cure it. Whether omission of the clerk’s name is jurisdictional is arguable in light of Payne.
• Presumption of regularity (s.1(9) of the 1986 Act): Documents purporting to be summonses are presumed duly issued unless the contrary is shown. This presumption may be tested by defects going to jurisdiction.
• “Capable of breeding”: Under the 2010 Act, the threshold turns on capability, not actual breeding. That a bitch is a “pet” or was not bred from does not avoid the registration trigger if she is over six months and capable of breeding.
• Using the right remedy at the right time: Closure notices have a specific, short appeal route to the District Court with a suspensive effect. Skipping that route and attempting to litigate the notice later via judicial review of a different decision is generally impermissible.

Conclusion

Rigney delivers two clear and consequential messages. First, procedural discipline is paramount: when a judicial review is late, the Court cannot grant leave unless the applicant has properly applied—on affidavit—for an extension and met the Order 84 criteria. The leave stage is a real filter; it protects public bodies and the administration of justice from unfocused or misdirected litigation.

Second, while the Court refused leave here, it signalled that failure to specify the District Court Clerk’s name on a summons, as mandated by section 1(6)(e) of the 1986 Act, may be an arguable jurisdictional defect rather than a mere technical irregularity. Prosecuting authorities should ensure strict compliance with statutory summons requirements to avoid avoidable challenges.

The judgment also re‑emphasizes the limits of judicial review: it is not a merits appeal; it cannot resurrect moot District Court decisions superseded on appeal; and it is not a platform to retroactively attack a closure notice that carried its own unexercised appeal remedy. Overall, the ruling is an important reminder that sound procedure is often determinative—and that even potentially arguable points will not be entertained if brought out of time without a properly grounded extension application.