Tuesday, 14 May 2013

Refusal to Review Factual Error

Common law courts are generally quite reluctant to review decisions for factual errors. Like all generalisms, this significantly understates the complexity of the area. Nonetheless, a recent Irish decision provides a fine illustration.

In Richardson v. Mahon, [2013] IEHC 118, the applicant challenged a factual assertion in a report issued by the respondent tribunal. The factual assertion was based on the applicant's alleged failure to account for a sum of money. But, as the applicant observed, counsel for the tribunal had never asked him to account for the sum of money in question!

Dunne J. accepted that there was "undoubtedly" an error of fact. Nonetheless, she held that the error was within jurisdiction and thus not amenable to judicial review:
It is a somewhat artificial exercise to break down the findings in the respective paragraphs complained of and to criticise elements of those paragraphs as being irrational or unreasonable findings. In truth, this is more in the nature of a challenge to "part findings" of the Tribunal. It seems to me that the manner in which this has been done by the applicant lends force to the argument that what is at the heart of this application is an error of fact and an error within jurisdiction which is not amenable to judicial review. It is not the function of the court in these proceedings to correct errors of fact made by the Tribunal and thus, I have concluded that the applicant is not entitled to the relief sought herein.
Dunne J. relied amongst other things on an administrative law text in which I had a hand. The authors therein are sceptical of review for error of fact, but certainly recognize situations in which factual errors can justify judicial intervention. And some of my subsequently expressed views on the utility of formal categories (such as "law" and "fact") distance me from any proposition that factual errors should automatically fall outside the judicial domain. 

Indeed, Dunne J. concluded by making a plea to common sense:

By way of postscript, I would add that this is a case in which there was a mistake of fact on one issue in respect of the findings of the Tribunal in respect of the applicant. No doubt the Tribunal will be happy to correct the error.
There is nothing terribly wrong with Dunne J.'s approach as a jurisprudential matter. Though she could perhaps have read the authorities more leniently, her decision is consistent with the general Irish approach.

Nevertheless, it doesn't seem to me to be entirely satisfactory that the applicant in a case like this should find himself relying on the good grace of the decision-maker. One of the problems with using grounds of review in order to keep administrative decision-makers in check is that it leads to the development of formal categories and less focus on the substance of administrative decisions.

Fundamentally, the question ought to be "Should the Court intervene here?", not "Does the error complained of fall into a pre-defined category?" I appreciate that the distinction between these two questions may not be as clear as I have made it, but it seems to me that a focus on the justification for intervention should be at the core of the inquiry on judicial review.

This case may be the reductio ad absurdum of a "grounds of review" approach to judicial review: there is no justification at all for the tribunal's conclusion, but ample justification (fairness to the applicant, reasonableness of the conclusions, public confidence in the tribunal process) for judicial intervention.

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