High Court

Healy v Fingal County Council 

No 67 of 1996 

17 January 1997 

BARR J: 

The facts which have given rise to this application for judicial review are not in dispute and are as follows:- 

The applicant, who resides in Howth, County Dublin is an elected councillor of the respondent local authority. The latter is one of two authorities which originally comprised Dublin County Council. They were created by the Local Government (Dublin) Act, 1993 and replace the former of which the applicant was then a councillor. Pursuant to the foregoing Act he was transferred to Fingal County Council with others associated with that area who had been Dublin county counsellors before its demise and sub-division. Debts owing by counsellors to Dublin County Council at that time were transferred to the respective new bodies to which the debtors had been assigned. 

At all material times elected counsellors, such as the applicant, when members of the defunct Dublin County Council and subsequently the relevant replacement council, are and have been entitled to certain expenses and allowances in connection with their work as councillors. Such expenses are payable monthly by the local authority and presently each councillor is paid approximately £3,000 per annum in that regard. 

The applicant and another councillor brought judicial review proceedings again Dublin County Council in 1992 relating to planning permission for a certain building development in Howth. The application was unsuccessful and costs were awarded against both applicants jointly and severally. Costs were taxed at £13,767.78. The certificate of taxation is dated 2 March, 1994 and, save by way of set-off hereinafter referred to, the applicant has made no effort to discharge his indebtedness to the respondent for costs in the earlier proceedings. 

By letter dated 24 August, 1994, the deputy manager of Fingal County Council wrote to the applicant in the following terms:- 

"RE: HEALY AND O'NEILL v DUBLIN COUNTY COUNCIL THE HIGH COURT (JUDICIAL REVIEW) 1993 NO 114 JR 

RE: HOWTH HOUSE, HOWTH, COUNTY DUBLIN. 

Dear Councillor Healy, 

As you are aware, in this case costs were awarded to the County Council payable jointly and severally by yourself and Ms Sadhba O'Neill. These costs were taxed at £13,767.78. 

In March, 1994, the Law Agent wrote to your solicitor, Donal O'Reilly & Co seeking payment. There has been no response to this request. 

Accordingly, an order has been made that payment of allowances and expenses to you be withheld until such time as the costs due to the Council have been paid. 

This order will be implemented with immediate effect. 

Yours faithfully." 

The respondent has not sought to take any other steps to recover its costs from the applicant. Since August, 1994 the Council has deducted in excess of £7,000 from the expenses otherwise payable to the applicant in connection with his duties as councillor. 

The substantive issue between the parties is whether or not the respondent is lawfully entitled to deduct by way of set-off against the applicant's debt to the Council for costs, moneys payable to him as expenses. However, there are also two preliminary issues which are crucial to the applicant's right to relief by way of judicial review. The first of these is whether the issue between the parties is properly the subject-matter of judicial review or whether he has a right of action in private law only for alleged breach of contract by the respondent, or breach of agreement between the parties, in withholding expenses lawfully payable to him as an elected councillor. The principle to be applied in resolving that issue is laid down in the following passage from the judgment of Finlay CJ, being one of the majority judgments of the Supreme Court in Beirne v Commissioner of An Garda Siochana, [1993] ILRM 1. 

"The principle which, in general, excludes from the ambit of judicial review decisions made in the realm of private law by persons or tribunals whose authority derives from contract is, I am quite satisfied, confined to cases or incidences where the duty being performed by the decision-making authority is manifestly a private duty and where his right to make it derives solely from contract or solely from consent or the agreement of the parties affected. 

Where the duty being carried out by a decision-making authority . . . is of a nature which might ordinarily be seen as coming within the public domain, that decision can only be excluded from the reach of the jurisdiction in judicial review if it can be shown that it solely and exclusively derived from an individual contract made in private law." 

The essence of the point made by Finlay CJ in the foregoing passage appears to be that where a transaction between a public body and an individual is private in nature and is unrelated to the public interest, or to the exercise, or non-exercise, of a public function, then the only remedy which may be available to an aggrieved body is in private law. In applying that precept to the present case it is evident that the conduct of the respondent of which complaint is made is not "of a nature which might ordinarily be seen as coming within the public domain" as posited by Finlay CJ. I am satisfied that there is no public dimension involved in the set-off made by the Council against expenses due by it to the applicant. The issue as to whether or not the respondent is lawfully entitled to take that course is not a matter which introduces the requisite public element necessary to justify relief by way of judicial review. Accordingly, in the light of the judgment of the Supreme Court in Beirne v Commissioner of An Garda Siochana, (see also my judgments in Browne v Dundalk Urban District Council, [1993] 2 IR 512 and Murphy v Turfs Club, [1989] IR 171), I am satisfied that the applicant is not entitled to relief by way of judicial review. 

The second preliminary point relates to delay on the part of the applicant in moving the court for judicial review. Order 84, rule 21(1) of the RSC provides that an application for judicial review shall be made promptly. The letter from the respondent's deputy manager to the applicant informing him that the Council proposed henceforth to deduct his monthly expenses from his liability for costs in the earlier proceedings is dated 24 August, 1994 and the threatened monthly deductions were made from then. However, the applicant did not institute judicial review proceedings challenging the respondent's alleged set-off until 26February, 1996. No acceptable explanation has been put forward to explain or justify the substantial delay. It follows, therefore, that even if the facts herein raised an issue justiciable by way of judicial review, in exercise of my discretion I would not be disposed to extend time for bringing the application and it fails on that ground also.