The Bar Review - April 2026

LAW IN PRACTICE

European arrest warrant and surrender procedures

Interim protection orders, delay, and procedural fairness

INTERVIEW

Mark Kelly Chief Inspector of Prisons

CLOSING ARGUMENT

The inherent rights of nature

REVIEW THE BAR

VOLUME 31 / NUMBER 2 / APRIL 2026

CONSTRUCTION ADJUDICATION

Comhairleoir Dlí sa

Roinn Coimirce Sóisialaí

Tá an Roinn Coimirce Sóisialaí ag earcú Comhairleora Dlí ag gov.ie/RCSGairmeacha

Aoine 10 Aibreán go dtí 3 Dé hAoine 1 Bealtaine 2026

Legal Advisor in the gov.ie/dspcareers

Friday 10 April until 3pm on Friday 1 May 2026

CONTENTS

Work and Access: getting the support you need to practise

European arrest warrant and surrender procedures between EU member states

Building on precedent: jurisdictional implications of recent case law in construction adjudications

Calling time: interim protection orders, delay, and procedural fairness

EDITORIAL BOARD

Editor

Helen Murray BL

David Conlan Smyth SC

Tom Flynn SC

Clíona Kimber SC

Paul McGarry SC

Cathleen Noctor SC

Sean Ó hUallacháin SC

Proinsias Ó Maolchalain SC

Bairbre O’Neill SC

Peggy O’Rourke SC

Morgan Shelley SC

Lydia Bunni BL

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Michael Kinsley BL

Cian McGoldrick BL

Catherine Needham BL

James Nerney BL

Una Nesdale BL

Emer Ní Chúgáin BL

Tim O’Connor BL

Michael O’Doherty BL

Tanya Smyth BL

Shirley Coulter, CEO

Stephen Lowry, Director of Communications & Public Affairs

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Gary LaCumber, Law Library

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A PERIOD OF CHANGE

The Bar of Ireland remains committed to active engagement on proposed legal reform.

Seán Guerin SC

Senior Counsel, Barrister – Member of the Inner Bar Chair of the Council of The Bar of Ireland

Legal reform remains at the forefront of the Government’s agenda. Colleagues across the country will be acutely aware of the breadth, pace, and practical significance of the changes now proposed and, in some instances, already underway. The Council of The Bar of Ireland is advancing a range of strategic initiatives to ensure that reform strengthens, rather than diminishes, access to justice, and that it serves the public interest while reflecting the realities of practice at the Bar.

Civil legal aid

On February 17, The Bar of Ireland was represented at the Oireachtas Joint Committee on Justice, Home Affairs and Migration in relation to our written submission on civil legal aid. The hearing provided a timely forum to set out the Bar’s position, and significant support was expressed by members of the Committee for the core proposition

that civil legal aid fees must be enhanced urgently if access to justice is to be maintained for vulnerable members of society. That engagement will continue, as will the campaign to raise awareness of the issues identified in our submission. These include the operation of the flat rate model, the increasingly complex workload that civil legal aid practice now entails, the rising demand for civil legal aid services, and the risk of an exodus of more experienced practitioners from the Civil Legal Aid Panel.

Criminal legal aid

In late February, the Department of Justice published proposals concerning District Court legal aid fees. The unexpected nature of that publication prompted the Bar to seek an urgent meeting with the Department. While the proposals relate primarily to solicitors’ fees, many barristers act on the instructions of solicitors in District Court

matters. The proposals would have a significant impact on many colleagues, particularly those in the early years of practice.

A detailed submission has been provided to the Department. In it, we acknowledge that there is merit in measures that simplify the manner in which legal aid payments are made in the District Court. However, the flat-fee model does not promote efficiency. It penalises defence lawyers for adjournments necessitated by essential procedural steps and/or prosecutorial delay. It also proposes a system in which adequate payment will not be provided by the State to those representing accused persons who cannot afford to pay for their defence. The Council welcomes confirmation of the restoration of the final 8% to criminal legal aid fees. We do not consider that there is a proper basis to defer restoration until July 1, 2026, pending review of District Court fees. There is no substantive or administrative overlap between

District Court fees and higher court fees, and the Department has long acknowledged the contribution made by barristers to increased efficiencies and flexibility in the higher courts. We remain committed to constructive engagement and to supporting reforms required across the criminal justice system. We maintain that restoration should proceed immediately, and in any event no later than July 1, regardless of the outcome of the District Court fee review.

Civil Reform Bill

On March 24, colleagues addressed the Joint Oireachtas Committee on Justice, Home Affairs and Migration on the Civil Reform Bill 2025. They outlined concerns regarding proposals within the Bill and its departures from the recommendations of the Kelly report. The Bar of Ireland supports the overall objectives of the Civil Reform Bill. We also welcome the Minister’s commitment to remove provisions that would have seen certain judicial review cases moved from the High Court to the Circuit Court. That commitment aligns with recommendations contained in our submissions on the Bill, and reflects the importance of ensuring that procedural reform safeguards effective court oversight and maintains coherent pathways for public law litigation.

Continuing the work

In a period of unprecedented legal reform, the Bar must remain both engaged and clear-sighted. Our role is to represent the interests of the profession while also supporting the effective operation of the courts in the public interest. That requires consistent participation in legislative and policy processes, a focus on practical consequences for court users, and a willingness to propose workable alternatives where proposals risk undermining fairness, efficiency, or access to justice. We will continue that work in the months ahead through ongoing engagement with the Oireachtas, the relevant Departments, and other stakeholders, and through keeping members informed as developments occur.

GLOBAL AND LOCAL LAW

This edition offers both a local and a wider European perspective on a number of areas of law.

Helen Murray BL Editor

The Bar Review

Here at The Bar Review we love to celebrate talent, and so it is with great honour that we publish an article written by Eimear Dooley BL, winner of the Sanfey Essay Prize. This article is an excellent presentation of the impact of recent case law in the area of construction adjudication.

Conal Ellis BL examines the law surrounding the European arrest warrant (EAW) and in particular the exceptional cases whereby a member state can refuse to execute an EAW. This article is essential reading for practitioners working in this area.

Peter Paul Hughes BL explores the impact of protection orders pursuant to the Domestic Violence Act 2018, and considers the ramifications for parties when this interim order remains in place for a prolonged period.

The Bar Review interviews Mark Kelly, Chief

Inspector of Prisons. Mark speaks candidly about the extreme overcrowding in Ireland’s prisons and the impact on people living in prison, their potential for rehabilitation, and wider society. Mark is an international human rights lawyer and former Commissioner of the Irish Human Rights and Equality Commission, and his background and professional experiences make for interesting reading. Finally, for our closing argument, Turlough O’Donnell SC takes us to the Mar Menor, Europe’s largest saltwater lagoon in south eastern Spain. The Mar has been subjected to environmental pollution for several decades and in 2022, local activists and environmental campaigners worked together to bring a bill to the Spanish Parliament, which effectively recognised the Mar as a legal entity. Turlough writes about the significance of this law and what is means for the future of the Mar.

Specialist Bar Association news

Climate obligations after Coolglass

A Climate Bar Association session on February 24 examined ‘Climate obligations after Coolglass: The Supreme Court’s Interpretation of Section 15 in Coolglass Wind Farm Ltd v An Coimisiún Pleanála [2026] IESC 5’. Donnchadh Woulfe BL explored the Supreme Court’s landmark judgment and its first consideration of s.15(1) of the Climate Action and Low Carbon Development Act 2015 following its amendment by the 2021 Act. Attendees gained an understanding of when s.15 would be directly applicable or applicable through relevant implementation plans, the range of permissible decisions available to planning bodies, and practical guidance for planning authorities, developers, and other relevant bodies.

To the whole people of Ireland

On February 25, the Irish Criminal Bar Association (ICBA) and Barry Ward SC TD welcomed attendees to Dáil Éireann for a discussion on the intersection of politics and justice, featuring a retrospective on Jonathan Swift’s Drapier’s Letters. Garnet Orange SC examined the seven political pamphlets that sparked a nationwide boycott in 1724-1725, before joining Barry Ward SC and ICBA Chair Shaun Smyth BL for a fireside discussion. Participants left with insights into the subtle art of political advocacy, methods of effecting legal change, structuring arguments over time, and developing written advocacy skills.

Dublin Dispute Resolution Centre

Ireland’s premier dispute resolution venue

At the DDRC, we take pride in delivering exceptionally high-quality meeting spaces and supplementary services in close proximity to the Four Courts complex.

Key features of our centre

Neutrality: DDRC serves as a neutral venue for all parties. Conveniently located in the heart of Dublin's legal community, we are easy to access.

Prime location: on the first floor of the Distillery Building, DDRC offers the perfect setting for consultations, arbitrations, mediations, and settlements.

Fully serviced and accessible for all users: we take care of all your business needs. DDRC guarantees a seamless, positive experience.

Flexible hours: meetings can be unpredictable, so we can offer flexibility allowing your meeting to progress in whichever way suits you.

Recent planning decisions

The Planning, Environmental and Local Government Bar Association (PELGBA) held a CPD on February 26, which discussed recent decisions of the Irish and European courts. Tom Flynn SC, Chair of the PELGBA, moderated the discussion, with Fintan Valentine SC and Laura Hogan BL. Participants were brought through some of the recent decisions that have come through the planning courts and how judgments from the European Court of Justice may impact the interpretation of EU law obligations in Irish law. There was a lively Q&A session, and attendees continued their discussions in The Sheds afterwards.

Gambling regulation

Attendees and speakers at the recent Sports Law Bar Association/Addleshaw Goddard event.

The Sports Law Bar Association recently partnered with Addleshaw Goddard to host an event on the gambling regulatory regime. The event was hosted in the Addleshaw Goddard offices and was fully sold out. The panel was moderated expertly by Noel Power, Legal Director of Addleshaw Goddard, London. Panellists were Marguerite Kehoe BL, Rebecca Cohen, Director of Enforcement, Legal and Anti-Money Laundering at the Gambling Regulatory Authority of Ireland, and Cathal Ó Curraín, Legal Director of Addleshaw Goddard, Dublin.

Fionnghuala Burns

London welcomes the EUBA

The EU Bar Association was delighted to host its annual event in the Irish Embassy in London on March 19. This year the event was hosted in conjunction with Ireland for Law and the London Irish Lawyers Association. The event was a huge success, having sold out well in advance. The topic of ‘Patent Litigation in Ireland and the UPC’ was very well received. Chaired by Ms Justice Niamh Hyland, the panel consisted of Jonathan Newman SC, Bairbre O’Neill SC, and James Horgan, Chief Patent Counsel International Litigation and Policy at Merck, Sharp and Dohme.

Above (from left): James Horgan, Merck, Sharpe and Dohme; Jonathan Newman SC; and, Bairbre O’Neill SC.

Left: Mr Justice David Barniville, President of the High Court.

TIBA breakfast briefing

The Tort and Insurance Bar Association held a breakfast briefing on March 10, which featured a ‘Review of the Criminal Injuries Compensation Scheme’ by Majella Twomey BL. Hugh O’Leary BL took the attendees through ‘Adverse Costs Orders in Infant Cases’. This was a well-attended member-only event, with a large number of online attendees. There were plenty of questions for the speakers at the end of the event.

International Women’s Day

The Bar of Ireland’s Equality and Resilience Committee celebrated International Women’s Day on Thursday, March 5, for the 11th year. This year’s event centred around the theme ‘Give to Gain’, and featured Senator Lynn Ruane as the keynote speaker. Senator Ruane was joined on a panel discussion by Ms Tafadzwa Mandiwanza, Consultant Neurosurgeon, and Dr Mamobo Ogoro, founder and CEO of GORM. It was moderated by Ingrid Miley, former barrister and Industry and Employment Correspondent for RTÉ News

The event allowed for meaningful networking and communication among barristers, solicitors, and other members of the legal profession on the themes of social justice, healthcare, entrepreneurship, and public life. Seán Guerin SC, Chair of the Council of the Bar of Ireland, opened the event, and Elizabeth Gormley BL of the Equality and Resilience Committee, gave a reflective closing address.

From left: Ingrid Miley; Dr Mamobo Ogoro; Senator Lynn Ruane; and, Tafadzwa Mandiwanza.

From left: Carol Walls BL; Kane Kavanagh Baer BL; and, Estelle Casadesús Switzer BL.

Rebecca Tierney BL and Mellissa Tierney. Photographs: Robbie Reynolds.

Civil legal aid

Following July’s publication of the majority and minority reports of the Independent Review Group on Civil Legal Aid, in January the Civil State Bar Committee drafted a written submission on the reports. The submission addressed the issue of outdated fees and fee rate payable to barristers under the Civil Legal Aid Scheme in the areas of family law, domestic violence, wardship, and childcare/child abduction. You can read the full submission on The Bar of Ireland’s website.

On February 17, Chair of the Council of The Bar of Ireland, Seán Guerin SC, and Chair of the Civil State Bar Committee, Cliona Cleary BL, appeared before the Oireachtas Joint Committee on Justice, Home Affairs and Migration. They spoke about the impact of the outdated fee structure for barristers under the current system, and

Infrastructure

delivery

On Friday, February 27, The Bar of Ireland held a well-attended conference on the topic of major infrastructure delivery in Ireland and the impact that may have on judicial review. The conference focused on the recommendations emanating from the Government’s Accelerating Infrastructure Report and Action Plan, the role of judicial review in this context, and how to improve administrative decision-making in the planning process.

This constructive, solutions-focused event provided a critical forum for conversations that will shape the next steps towards practical, longterm solutions in infrastructure delivery. Minister for Public Expenditure, Infrastructure, Public Services, Reform and Digitalisation, Jack Chambers TD, gave an opening address, and attendees heard from expert speakers, including Seán Guerin SC, Bairbre O’Neill SC, Sean

urged that an immediate review of fee levels and structures be implemented, cautioning that the system, as it stands, is unsustainable. They outlined the risk of loss of experience and expertise from areas of law where it is needed most, and the knock-on effects that would impact court efficiency, delay and public confidence in the justice system. Other witnesses present on the day included representatives for FLAC, the Law Society of Ireland, Women’s Aid and the Legal Aid Board.

From left: Brian Hunt, Director of Policy, Law Society of Ireland; Keith Walsh SC, Family and Child Law Committee, Law Society of Ireland; Cliona Cleary BL, Chair, Civil State Bar Committee; and, Seán Guerin SC, Chair of the Council of The Bar of Ireland. Photograph: Cian Redmond.

O’Driscoll, Accelerating Infrastructure Taskforce, Dr Lorcan Sirr, TU Dublin, Tom Flynn SC, Captain

Karl O’Neill, Aer Lingus, Niall Cussen, Office of the Planning Regulator, and Suzanne Murray SC.

From left: Sean O’Driscoll, Accelerating Infrastructure Taskforce; Seán Guerin SC, Chair of the Council of The Bar of Ireland; Jack Chambers TD, Minister for Public Expenditure, Infrastructure, Public Services, Reform and Digitalisation; and, Bairbre O’Neill SC. Photograph: Conor McCabe.

Another successful year for Look into Law

The Bar’s ‘Look into Law’ Transition Year Programme proved to be another resounding success, welcoming hundreds of students nationwide for an online introduction to the legal profession. The newly revamped format opened its first day to all applicants, allowing students across Ireland to join an online programme led by 15 practising barristers.

Sessions covered an engaging mix of topics including ‘Who’s Who in the Law’, ‘The Pathway to the Bar’, and an overview of the justice system, finishing with a look at ‘The Law and Me’, demonstrating how relevant the law is to all citizens.

From that group, 60 students from across the country, chosen by lottery, progressed to an intensive three-day on-site experience. More than 20 barristers gave their time, offering job shadowing opportunities that provided a glimpse into the daily realities of life at the Bar. Highlights included meeting a High Court judge and the Chief Justice, and guided tours of the Four Courts and the King’s Inns. On the final day, two mock trials were conducted in the atmospheric surroundings of the historic Green Street Courthouse.

The Programme’s success is thanks in no small part to the generosity of the many members of the profession who contribute their time, expertise and enthusiasm. Special thanks goes to Seán Guerin SC and Femi Daniyan BL for opening the week on behalf of the Council, and to Darren Lehane SC, who closed the programme and presented certificates of completion to the participants.

This year’s TY Programme once again showcased the profession’s commitment to fostering understanding of the legal system and inspiring the next generation of legal minds. There is one more Big Legal Q&A to take place on Thursday, April 23, which is open to all schools.

Students participating in a mock trial at Green Street Courthouse.

Students from Cork at Green Street Courthouse.

Photographs: Conor McCabe.

Alannah Walford from Ard Scoil Rath Iomgháin, Co. Kildare, and Ruben Rodriguez Narez from The Kings Hospital, Dublin, participating in the mock trial at Green Street Courthouse.

WORK AND ACCESS: GETTING THE SUPPORT YOU NEED TO PRACTISE

The Government’s Work and Access scheme aims to remove the barriers that people with disabilities face in the workplace.

Patrick Ryan EDI & Wellbeing Coordinator, The Bar of Ireland

Most workplaces offer employees ‘reasonable accommodations’, particularly if a disability or additional need has been disclosed by an employee. As a self-employed person, it may feel like those supports are not available to you as a member of the Law Library, or that they will require significant investment. If a hearing difficulty makes court appearances more demanding, a visual impairment creates challenges with paperwork, or a physical condition affects your ability to work effectively, you may be eligible for financial support from the Irish Government, and applying is more straightforward than you might expect.

Work and Access is a scheme introduced by the Department of Social Protection in 2024 to support the removal of barriers that prevent people with disabilities from sustaining employment. Replacing the former ‘Reasonable Accommodation Fund’ and ‘Disability Support Scheme’, it combines these earlier programmes into a single, needs-based pathway. While not a Bar of Ireland initiative, it is available and may be beneficial to self-employed practitioners, such as barristers.

At the heart of Work and Access is a simple principle: support is determined by the specific barriers you face, not by diagnostic labels. The scheme offers a single application stream and an expanded range of eligible supports, meaning clearer access to practical supports without the complexity of navigating multiple overlapping programmes. We have recently heard of some success stories from members who have used the scheme, securing funding to access essential supports for their practice. This article includes more information on what’s available and how to go about accessing it.

Supports available

Supports particularly relevant to self-employed legal practitioners include:

■ Workplace Needs Assessment (up to ¤2,500): a professional assessment identifying what adjustments or aids would reduce barriers in your working environment, such as a home office or another professional setting.

■ Communication Supports: for those who are deaf, hard of hearing, or who use Lámh, access to tailored communication professionals or services.

■ Personal Reader Support: for barristers who are blind or visually impaired, needing aid with reading essential work-related materials.

■ Work Equipment and Adaptations (up to ¤12,500): funding for assistive technologies, specialised equipment, or ergonomic furniture to support effective practice.

This list is not exhaustive, but highlights the most relevant supports for those working at the Bar.

Eligibility and important considerations

To apply, you must:

■ be aged 18 or over and legally allowed to work in the State;

■ have a disability or condition expected to last more than 12 months;

■ work a minimum of eight hours weekly or 32 hours monthly;

■ be employed or self-employed; and,

■ self-employed barristers will need a valid Tax Clearance Access Number.

How to apply

Applications are made by post using the WA1 (Individual) form (available on the Department’s website). An officer will review your application and may request quotations or supporting documentation. No expenditure should be made until written approval has been granted.

Applications cannot be backdated, so funding cannot be claimed for anything bought before written approval is issued. While there is no formal appeals process, an alternative review by a different deciding officer can be requested within 21 days of receiving a decision.

Where to find support

Full details are available at gov.ie/work-andaccess . Guidance is also available from local Intreo Centres, Employers for Change, and the Disability Federation of Ireland. Members can also contact Patrick Ryan, EDI & Wellbeing Coordinator at The Bar of Ireland, for further information. (Reminder: this is not a Bar of

Ireland initiative, and the information provided here is for educational purposes only. The Bar cannot make the application on a member’s behalf.) Work and Access exists to ensure that all workers, including professionals like barristers, in independent, self-employed practice, have access to the tools they need. If it applies to you, don’t wait to explore it. Make contact today and find out more about the supports available.

More information for barristers on the Work and Access scheme is available at: https://members.lawlibrary.ie/app/uploads/2026/ 01/Work-and-Access-Program-Information-forBarristers.pdf.

A CRISIS INSPECTING

Chief

Inspector of Prisons Mark Kelly speaks about the serious issues facing the Irish prison system, and the legislative, political, and societal change needed to address them.

Ann-Marie Hardiman, Managing Editor, Think Media

Mark Kelly, Ireland’s Chief Inspector of Prisons, has spent his career monitoring conditions in places of detention across Europe. While undertaking postgraduate study, he applied for a role with the European Committee for the Prevention of Torture (CPT), a treaty body established by the Council of Europe in Strasbourg: “The CPT visits places of detention throughout the 46 member states of the Council of Europe, and has unrestricted access to places of deprivation of liberty. So my first year out of university was as an international human rights monitor in places of detention”. Over the next 30 years, Mark worked for the CPT in a range of roles, as a permanent staff member, an independent expert, an elected member, and ultimately as vice president. His role took him all over Europe, including as head of delegation for the CPT’s work in Russia, and this gave him a keen insight into the need for local implementation bodies to enforce international standards: “I led the Irish Council for Civil Liberties for about 10 years, and I’ve been a Commissioner of the Human Rights and Equality Commission. My deep interest is in this question of how do you establish effective connective tissue between international monitoring and national monitoring to make sure that international standards are implemented in practice?”.

The Office of the Inspector of Prisons (OIP) has a number of functions, the most obvious of which is carrying out independent inspections of prisons. Mark says that at the time of his appointment in summer 2022, there had not been full unannounced inspections for some time, but that has now changed: “There are now only two prisons that have yet to receive full inspections, and they will receive them this year”.

The OIP also investigates every death that occurs in prison custody and deaths that occur within one month after a person has been temporarily released. People living in prison can send confidential correspondence to the OIP, and while the Office has a role in oversight of the prison complaints process, it is not involved in processing complaints.

Framework for inspections

Prison inspections are carried out using a detailed and publicly available framework, which looks at four areas: respect and dignity; safety and security; health and welfare; and, purposeful activity and resettlement: “Under each of those areas we have very clear benchmarks and indicators, which are drawn from international standards, national best practice and national legislation”.

Mark hopes to be able to carry out a full inspection of every prison at least every three years, and preferably every two. The OIP also carries out follow-up inspections, and thematic inspections: “We’ve looked at things like education, work and training, psychiatric and mental healthcare, and we currently have a thematic inspection on the treatment of older people.

So alongside the full general inspections, our inspectors are in and out of the prisons on a frequent basis”.

The OIP draws on external experts to assist in its work, and has a memorandum of understanding with the Department of Education and Youth Inspectorate, whereby Department inspectors accompany OIP inspectors to look at the educational component of a prison.

A system in crisis

In January of this year, Mark and his team attended a sitting of the Joint Committee on Justice, Home Affairs and Migration, where they outlined shocking levels of overcrowding in the Irish prison system. So severe is the situation that the CPT, having carried out a full visit to Ireland in 2024, made the exceptional decision to return in December 2025, when Executive Secretary

Hugh Chetwynd expressed the view that the conditions seen by the visiting delegation could amount to a violation of Article 3 of the European Convention on Human Rights. Mark says that the situation is appalling, and continues to worsen. On the week in which our interview took place, there were 5,909 people in Irish prisons, which have a total bed capacity of 4,736. Some 616 people (more than 10% of the total prison population) were sleeping on mattresses on the floor: “You have to imagine a space that is barely bigger than a car parking space, with three or four men crammed in there with an unpartitioned toilet that they’re all using, with a mattress on the floor, and they’re eating and drinking in there as well. The system as a whole is 125% overcrowded at the moment, but there are pockets of overcrowding that are far worse.

Mountjoy Women’s Prison is 152% overcrowded, and Limerick Women’s Prison is 164% overcrowded. There are only three or four prisons in the country that are within their capacity, and even those are operating at 99 or 100%”.

Mark doesn’t mince words on the seriousness of the situation: “I’ve taken the view, and the same view has been taken by the CPT, that these conditions are inhuman and degrading. I say that having had the experience of working in places like the Russian Federation, Turkey and Bosnia – it’s not a term that I use lightly. In my view it’s crystal clear that current conditions for many prisoners in Ireland reach the threshold that would breach or violate Article 3”.

A recent RTÉ Primetime Investigates programme also highlighted a further crisis, regarding the incarceration in Irish prisons of persons with severe mental illness. Mark says this is a problem that is also worsening: “There was a policy document, ‘A Vision for Change’, and the vision was that the mental health hospitals would close, but that there would be a big investment in community psychiatric provision. That hasn’t happened, and so increasingly, we find in our prisons people who might previously have been committed to mental health hospital, and they’re not receiving the treatment that they should. There are some examples

of good in-reach services in places like Cloverhill, but that doesn’t address the fact that many people currently in prison simply shouldn’t be there”.

Solutions

Mark feels strongly that significant investment in community mental health services is crucial, but in terms of addressing overcrowding, he says that funding, particularly providing more prison space, is not the answer: “There is absolutely no evidence that any comparable jurisdiction has ever succeeded in building its way out of overcrowding. We only have to look to our near neighbours in England and Wales to see absolute empirical evidence of that. When I first started visiting prisons in England, the prison population was in the region of 40,000, and it’s now heading towards 90,000. Over that 30-year period, millions of pounds have been spent on building new prison places, and overcrowding persists”. He says that a holistic approach that looks at the entire criminal justice system is the only solution: “The only jurisdictions that have succeeded in reducing or eliminating overcrowding have done so by looking at the operation of the system as a whole, by promoting community alternatives to prison, by promoting restorative justice, by using technological means such as tagging, and by also just being realistic about the fact that sentences of less than 12 months achieve little or nothing in reality. There is a need, I think, for much bolder political action, taking account of the reality of the situation”.

Currently, Irish prisons are obliged to accept any person committed by the courts. One of the actions Mark would like to see is the introduction of an enforceable legal maximum capacity for each prison, which cannot be exceeded. This is an approach also recommended by the CPT; however, Mark says that there is little political support currently for such a move: “The Minister for Justice is resistant to this idea. His view is that if people are committed to prison by the courts, then they have to be sent to prison. But 577 people earlier this week were on one form or another of temporary release from prison, and the

From Scotland to Ireland

Originally from Ayrshire on the west coast of Scotland (although his mother hails from Tinahely in Co. Wicklow), Mark Kelly studied law in Edinburgh, and also has master’s degrees in criminology from Edinburgh and Cambridge. He lives in Rathmichael, close to the border with Co. Wicklow, and is grateful for the contrast with the conditions that he witnesses in the course of his work: “I’m very fortunate to have a home in the Dublin Mountains with views of the sea, and my extremely energetic fox terrier Nora takes me on long walks, which are an effective antidote to what I’ve seen during the day”.

principal reason for that is there’s just nowhere to put them. So whether or not there’s an enforceable legal maximum, in reality, the prisons are currently having to release people, just in order to maintain the numbers they have”.

A broader approach that addresses the societal context that results in people being imprisoned is also key: “Very many people in prison are there because they have substance use and addiction issues. And because of the overcrowding and shortcomings in services in prison, many of them are spending their time in prison on a waiting list for addiction services, and are being released back into society without having had any intervention. So they’re coming back out, still addicted, and still impelled perhaps to acquire the resources to keep taking drugs in an illegal way. If we look at the women in prison and adopt, as we try to do in our work, a trauma-informed approach, it’s very obvious that the vast majority of women in prison in Ireland have experienced gender-based violence and other forms of trauma, which have contributed to them ending up in prison. And in many cases, absolutely nothing is achieved by imprisoning them except splitting up their families, perhaps their children ending up in care. Political leadership should include making the case to people who wish to see safer societies and less crime that imprisonment isn’t an effective way to achieve that”.

The international perspective

Other countries in Europe have had some success in solving these problems: “England and Wales has its own success story in terms of its population of juvenile prisoners, which it has managed to reduce by 85 or 90%. It’s done that by the combination of measures that I was talking about – a preference for community disposal, an emphasis on education, restorative justice, and so on. There are other jurisdictions like the Netherlands, for example, which have actually been closing down prisons or converting them to cinemas or museums. But unfortunately, Ireland is very far from being alone in its overcrowding problem. Belgium has a very similar problem, and France, on an even bigger scale, has that problem as well”.

Mark points out that in those countries that have implemented alternatives to incarceration, there has been no increase in crime figures. There’s also a strong economic impetus: “The most recent figure for the cost of sending someone to prison was ¤99,000 a year. Probation and community disposals cost a fraction of that, so it’s actually much more costeffective and a much better use of taxpayers’ money”.

New legislation

In his remarks to the Oireachtas Committee, Mark raised Ireland’s failure to ratify the Optional Protocol to the United Nations Convention Against Torture (Ireland signed the Convention in 2017 and is the only EU country that has yet to ratify it). The Government’s view is that a precondition of this ratification is the passing of the Inspection of Places of Detention Bill, which would expand the OIP’s mandate, and increase its independence in line with the Protocol. The issue of independence is one that Mark has raised repeatedly: “We operate under the Prisons Act 2007, which says that the Chief Inspector shall be independent in the performance of their functions. And I certainly am in terms of things like decisions on what and when to inspect, how to inspect, and so on. But the Minister for Justice has control over if and when our reports will be published, and also has control over our budget, which is far from ideal

considering that it is the Minister who has ultimate accountability for the areas that we’re inspecting”. The expansion of the OIP’s mandate will mean that it covers all places of detention within the criminal justice system: “Essentially, a person’s complete detention journey would fall under the mandate of our new office, from the moment that they’re placed in a garda car, a garda station, at court, and in court holding cells, while they’re transported to a prison if they’re remanded in custody, during their transport to court, and eventually as a sentenced prisoner”. He notes that engagement with the Courts Service will be a significant part of this: “There are something like 103 Courts Service facilities across the country, and people can be deprived of their liberty in various ways at any of them. The CCJ has about 100 cells, but there are quite a number of courthouses, as I understand it, which don’t have cells, and you can have a situation in which people are sitting in Prison Service vans for hours on end before they’re produced in court. None of that has ever been looked at independently or reported on”. Mark is hopeful that the Bill will be published shortly: “I had a meeting a couple of days ago with the people in the Department who are responsible for the legislation, and their hope and expectation is that it is now going to be listed for priority publication, with a view to its publication this summer”.

For now, his office is working closely with all relevant bodies to prepare for the changes: “We’re working with An Garda Síochána at a senior level, as well as with the other Garda accountability bodies and the Courts Service, because the ambition is that the work we develop will be based on a framework, as for prisons, that will be operationally meaningful for the police and for the Courts Service, taking due account of their existing and developing policy, because each of the bodies has its own distinct role”. This process will require significant resources, and Mark is hopeful that his offices’s staffing and budget will reflect this. They are currently engaging in a recruitment process to increase the staff of inspectors, and also establish a panel for future recruitment.

Making real change happen

While the proposed changes are welcome, Mark agrees that the issues facing our prison system need urgent action, and would like to see that reflected in the new legislation: “The general scheme of the Bill was published in 2022, and one of our observations was that we would like to see a legal obligation to take action to implement our recommendations. That would be consistent with what the UN Subcommittee on the Prevention of Torture has called for. There’s absolutely no point in monitoring for the sake of monitoring, or producing repeated recommendations that are not implemented”. He gives credit to the Irish Prison Service, which he says has already sought to implement a number of recommendations. These include piloting the use of remote vital signs monitoring technology in cells where vulnerable people are placed, and work on the introduction of a new system for recording violent incidents: “It’s a slow process, but even in the absence of legal obligation, there is a high degree of goodwill”. Mark’s message is clear: “Ireland’s prison system is in a state of crisis, and unless some fairly rapid and bold political action is taken, we are going to end up in the same situation as England and Wales, in which there will have to be mass releases of people, some of whom perhaps ought not to be released, simply because the system has reached breaking point”.

What makes a good prison inspector?

“A good prison inspector must, on the one hand, have sufficient empathy and people skills to be able to communicate effectively and to be able to have a genuine human connection with people living and working in prisons, but at the same time be sufficiently resilient to be able to cope with that and to process it. That is then linked to a third thing, which is the capacity for effective teamwork, because it’s a feature of our inspections that every day ends with a debriefing session in the team, which is an opportunity for mutual support and information sharing”.

UPDATE

A directory of legislation, articles and acquisitions received in the Law Library from January 22, 2026, to March 12, 2026

Judgment information supplied by Vlex Justis Ltd.

Edited by Vanessa Curley, Susan Downes and Clare O’Dwyer, Law Library, Four Courts.

ADMINISTRATIVE LAW

Administrative law – Stay application –Stay on regulatory decisions –Broadcasting Act 2009, s.201 –Regulation (EU) 2022/2065 (Digital Services Act), arts.16,17 – Applicant seeks a stay on the use of complaint information by the respondent pending judicial review – Whether the decisions to refer complaint information to the supervisory team were ultra vires and unlawful – 04/03/2026 –[2026] IEHC 127

X Internet Unlimited Company v Coimisiún na Meán

Administrative law – Leave application –Judicial review – Civil Legal Aid Act 1995, ss.26(2)(b),28(9)(a)(ii) – Ombudsman Act 1980, s.5(1)(d) – Applicant seeks leave to bring judicial review proceedings against the respondent’s decision – Whether the respondent acted unreasonably or unlawfully in its consideration of the applicant’s complaint – 05/03/2026 –[2026] IEHC 123

Wynne v Office Of The Ombudsman

Library acquisitions

Lewis, C. Judicial Remedies in Public Law (7th ed.). London: Thomson Sweet & Maxwell, 2026 – M300

ARBITRATION

Library acquisitions

Schill, S. International Council for Commercial Arbitration: Yearbook Commercial Arbitration: Volume L 2025

The Netherlands: Kluwer Law International, 2026 – N398.3

Articles

Holohan, B. A costly lesson. Law Society Gazette 2026; Mar: 29-33

ARTIFICIAL INTELLIGENCE

Library acquisitions Ramadan, F. The Future of Legal Knowledge Management: Harnessing Artificial Intelligence. London: Globe Law and Business, 2026 – 025.257

Articles

Daly, C. Bad robot. Law Society Gazette 2026; Jan/Feb: 24-29

Hyland, M. Robot rock? Law Society Gazette 2026; Jan/Feb: 56-58

ASSISTED DECISIONMAKING

Capacity law – Declaration order –

Discharge from wardship – Assisted Decision-Making (Capacity) Act 2015, ss.8,55 – Applicant seeks discharge from wardship and appointment of an independent co-decision-maker –23/01/2026 – [2026] IEHC 109 In the Matter of D [a ward of court]

Library acquisitions

Hynes, Á. Irish Capacity Law and Assisted Decision-Making. Dublin: Bloomsbury Professional, 2026 – N155.3.C5

BANKRUPTCY

Bankruptcy law – Adjudication order –Bankruptcy summons dismissal –Bankruptcy Act 1988 – Petitioner seeks adjudication of the debtor as bankrupt –Whether the debtor committed an act of bankruptcy by failing to pay, compound, or secure the sum demanded in the summons within the requisite period –23/02/2026 – [2026] IEHC 100

Re: Phelan [a bankrupt]

CHILDREN AND YOUNG PEOPLE

Childcare law – Interim care order –

Interim care order extension – Childcare Act 1991, ss.17,47 – Applicant seeks extension of interim care order and suitable placement for the child – Whether the interim care order should be extended and whether the Agency should provide a suitable registered placement –18/02/2026 – [2026] IEDC 1

In the matter of A, a child – Special Emergency Arrangement

Childcare law – Interim care order –Extension of interim care order – Childcare Act 1991, ss.17,47 – Applicant seeks extension of interim care order for one week – Whether the interim care order should be extended for one week –26/02/2026 – [2026] IEDC 2

In the matter of A, a child – Decision No. 2

Judicial review – Striking out order – Delay in judicial review proceedings – Child Care Act 1991, s.18 – Respondent seeks to strike out proceedings due to delay –Whether the proceedings should be struck out on grounds of delay – 06/02/2026 –[2026] IEHC 53

O’H(D) v Tusla The Child and Family Agency

Articles

Graty Hood, E. Children’s rights and the guardian ad litem system: an access to justice perspective. Irish Journal of Family Law 2025; 28 (3): 62-72

Joyce, M. Ireland’s historical approach to the sexual and reproductive health of young people: seen and not heard? Irish Journal of Family Law 2025; 28 (3): 53-60

Murphy, L. Children living in the international protection system. Irish Journal of Family Law 2025; 28 (3): 51-52

COMMERCIAL LAW

Commercial law – Discovery order –Discovery application – Plaintiffs seek discovery of categories 7 and 10 –Whether discovery of categories 7 and 10 should be ordered – 13/02/2026 –[2026] IEHC 83

Neligan and ors v Infrared Infrastructure VI Europe Limited and anor Commercial law – Injunction order –Personal liability – Companies Act 2014, ss.599,600 –Applicant seeks to hold the first respondent personally liable for debts and disqualify him from acting as a director – Whether the first respondent should be held personally liable for the debts of the companies and disqualified from acting as a director – 19/02/2026 –[2026] IEHC 97

Tuskar Property Holdings Limited [in liquidation] and ors v Companies Act 2014

Articles

Clarke, R. Suing “You-(Don’t)-KnowWho”: Pepper Finance v Persons Unknown in Occupation of the Property Known as 21 Little Mary Street, Dublin 7 Commercial Law Practitioner 2025; 32 (8): 121-128

Quinn, J. Corporate rescue vs creditor rights: exploring decrystallisation by examinership. Commercial Law Practitioner 2025; 32 (8): 115-120

COMPANY LAW

Corporate insolvency law – Winding up order – Winding up petition – Companies Act 2014, ss.569,570 – Solicitors seek winding up of the company due to unpaid legal fees – Whether the company should be wound up as insolvent or because of the debt for substantial legal fees –06/03/2026 – [2026] IEHC 140 Charles Kelly Limited v Companies Act 2014

Library acquisitions

Joffe, V., Drake, D., Richardson, G., Lightman, D., Collingwood, T., Elias, T., Bryan, Z. Minority Shareholders: Law, Practice and Procedure (7th ed.). Oxford: Oxford University Press, 2026 – N263

CONSTITUTIONAL LAW

Constitutional law – Declaration of unconstitutionality – Constitutionality of

s.75(2) – Children Act 2001, ss.75(1),75(2) – Criminal Justice (Theft and Fraud Offences) Act 2001, s.14 –Applicant seeks to challenge the constitutionality of s.75 of the Children Act 2001 – Whether s.75(2) of the Children Act 2001 is unconstitutional by omission for failing to address the position of young offenders charged after attaining majority – 10/02/2026 – [2026]

IESC 7

Brophy v DPP, Ireland, and the Attorney General

Constitutional law – Costs order – Costs in public interest litigation – Legal Services Regulation Act 2015, ss.168,169 – RSC, O.99 – Applicant and plaintiff seek costs against the State despite being unsuccessful – Whether Deputies Daly and Murphy should pay the State’s costs or be awarded costs despite being unsuccessful – 06/03/2026 – [2026] IEHC 133

Daly v An Taoiseach and ors, Murphy v An Taoiseach and ors

CONTEMPT

Contempt of court – Contempt order –Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020, s.11 – 04/03/2026 – [2026] IEHC 132

Burke v O’Longain and ors

COSTS

Costs and appeals – Costs order – Costs recovery – Legal Services Regulation Act 2015, s.169 – Respondents seek recovery of costs of the appeal against the appellant – Whether the respondents are entitled to recover costs of the appeal against the appellant – 17/02/2026 –2026] IECA 16

Houston v Reynolds and anor

Judicial review – Costs order – Costs allocation – Legal Services Regulation Act 2015, s.169 – Pharmacy Act 2007 –Applicant seeks exemption from costs for reporting restrictions motion – Whether the applicant should pay the university’s costs for the reporting restrictions motion – 05/03/2026 – [2026] IEHC 131

Student A v Trinity College Dublin

CRIMINAL LAW

Criminal law – Certiorari order – Judicial review – Criminal Justice (Legal Aid) Regulations 1965, s.7 – Criminal Justice (Legal Aid) (Amendment) Regulations 1970, s.7 – Appellants seek judicial review of District Court decisions refusing to assign separate solicitors from the same firm for distinct charges – Whether the refusal to issue certificates under s.2 of

the Criminal Justice (Legal Aid) Act, 1962 and the regulations made thereunder in the names of separate solicitors in the same legal firm was unlawful –05/03/2026 – [2026] IEHC 117

Cawley v Director of Public Prosecutions and anor, Heffernan v Director of Public Prosecutions and anor

Criminal law – Nomination order –Nomination of a judge – Criminal Justice (International Co-Operation) Act 2019, ss.3,7 – Applicant seeks nomination of a judge to take evidence under s.3 of the Criminal Justice (International CoOperation) Act 2019 – Whether to nominate a judge to take evidence under s.3 of the Criminal Justice (International Co-Operation) Act 2019 – 21/01/2026 –[2026] IEHC 32

Commissioner of An Garda Síochána v Criminal Justice (International CoOperation) Act 2019

Criminal law – Dismissal order – Judicial review – Criminal Procedure Act 1967, s.4E – Misuse of Drugs Acts 1977 and 1984 – Applicant seeks to quash the Circuit Court’s decision refusing to dismiss charges against him – Whether the trial judge relied on the additional evidence to dismiss the application – 12/2/2026 –[2026] IEHC 76

Conway v DPP

Criminal law – Discharge of s.2 order –

Validity of Circuit Court order – Proceeds of Crime Acts 1996-2016, s.2 – Civil Liability and Courts Act 2004, s.40 –Applicant seeks to restrain respondent from dealing with property and goods alleged to be proceeds of crime – Whether the Circuit Court order of May 2, 2024, was lawfully made and whether the s.2 order should be discharged – 13/01/2026 – [2026] IEHC 34

Criminal Assets Bureau v X and Y and Z

Criminal law – Dismissal of appeal –

Admissibility of video evidence – Criminal Evidence Act 1992, ss.12,16 – Criminal Justice (Victims of Crime) Act 2017, s.30 – Appellant seeks to overturn conviction for murder - Whether the trial judge erred in law in allowing the DVDs of specialist interviews with the appellant’s children to be adduced as evidence – 13/02/2026 –[2026] IECA 23

DPP v A(N)

Criminal law – Acquittal order – Statutory interpretation – Misuse of Drugs Act 1977, ss.26,27 – Appellant seeks to overturn the decision of the District Judge to acquit the respondent – Whether Garda Loughnane was accompanied by Garda Colleran within the meaning of s.26 of the Misuse of Drugs Act 1977 when he found the

cocaine – 11/02/2026 – [2026] IEHC 104

DPP [at the suit of Garda Diarmaid Loughnane] v Davis

Criminal law - Re-sentencing orderUndue leniency review - Criminal Justice Act 1993, s.2 - Offences Against the Person Act 1861, s.48 - Criminal Law (Rape) Act 1981, s.2 - Criminal Law (Rape) (Amendment) Act 1990, ss.21, 4Sex Offenders Act 2001, s.37 - Applicant seeks review of sentence for undue leniency - Whether the sentencing judge erred in applying a blanket discount of 50% due to the respondent’s age05/12/2025 - [2025] IECA 297

DPP v H(D)

Criminal law – Reduction of sentence –Sentencing methodology – Offences Against the Person Act 1861 – Criminal Law (Sexual Offences) Act 1935 –Appellant seeks reduction of sentence imposed for historical sexual offences –Whether the sentencing judge erred in applying the totality principle and proportionality in imposing consecutive sentences – 20/02/2026 – [2026] IECA 24

DPP v H(G)

Criminal law – Dismissal of appeal –Evidence admissibility – Offences Against the Person Act 1861, s.48 – Criminal Justice Act 1993, s.2 – Appellant seeks to overturn conviction based on alleged unfairness in evidence admission –Whether the trial judge erred in allowing the jury to hear evidence of alleged admissions by the appellant –13/02/2026 – [2026] IECA 25

DPP v H(P)

Criminal law – Conviction order – False imprisonment and assault – Non-Fatal Offences Against the Person Act 1997, ss.4,15 – Criminal Justice (Miscellaneous Provisions) Act 1997, s.10 – Appellants seek to overturn their convictions for false imprisonment and assault causing serious harm – Whether the appellants were guilty of false imprisonment and assault causing serious harm – 13/01/2025 – [2025]

IECA 305

DPP v Harte and ors

Criminal law – Conviction order –Severance and doli incapax – Criminal Law (Rape) (Amendment) Act 1990, s.2 –Children Act 2001, s.52 – Appellant seeks to overturn conviction on grounds of severance and doli incapax – Whether the trial judge erred in refusing to sever counts 21 and 22 from the indictment and whether the prosecution established the appellant’s criminal capacity under doli incapax – 18/12/2025 – [2025] IECA 302

DPP v L(A)

Criminal law – Concurrent sentence order

– Sentence severity – Criminal Justice (Public Order) Act 1994, s.17 – Appellant seeks reduction of sentence severity –Whether the sentence imposed was proportionate to the appellant’s guilt and circumstances – 20/02/2026 – [2026]

IECA 26

DPP v Mangan

Criminal law – Consecutive sentence order – Totality principle – Non-Fatal Offences Against the Person Act 1997, ss.5,10 –Prisons Act 2007, s.36 – Appellant seeks reduction of sentence severity – Whether the sentencing judge erred in principle by failing to apply the totality principle –15/12/2025 – [2025] IECA 303

DPP v Murray

Criminal law – Dismissal order – Grounds for appeal – Offences Against the Person Act 1861, s.48 – Criminal Law (Rape) Act 1981, s.2 – Appellant seeks to overturn conviction based on absence of forensic evidence – Whether the appellant could raise a new ground of appeal based on the absence of certain forensic evidence –19/12/2025 – [2025] IECA 301

DPP v O’D(S)

Criminal law – Review of sentence –Undue leniency review – Criminal Justice Act 1993, s.2 – Criminal Law (Rape) Act 1981, s.10 – Applicant seeks review of the sentence imposed on the respondent for being unduly lenient – Whether the sentences imposed at first instance were unduly lenient and required to be quashed and re-sentenced – 18/12/2025 – [2025] IECA 296

DPP v R(D)

Criminal law – Review order – Undue leniency – Criminal Justice Act 1993, s.2 – Misuse of Drugs Act 1977, ss.3,15A,27(3D) – Applicant seeks a review of the sentence imposed on the respondent for undue leniency – Whether the sentence imposed was unduly lenient and constituted an error in principle –28/01/2026 – [2026] IECA 15

DPP v Tuthill

Criminal law – Prohibition order – Judicial review – Criminal Law (Rape) (Amendment) Act 1990, s.2 – Applicant seeks an order of prohibition or injunction halting the criminal process – Whether the delay caused a real and serious risk of an unfair trial that cannot be cured by the trial judge – 19/02/2026 – [2026] IEHC 89

M v DPP

Judicial review – Certiorari order – Legal aid entitlement – Criminal Justice (Public Order) Act 1994 – Appellant seeks legal aid under the Legal Aid – Custody Issues Scheme – Whether the appellant was

entitled to legal aid under the Legal Aid –Custody Issues Scheme – 23/01/2026 –[2026] IECA 5

Rogers v DPP and ors

DATA PROTECTION

Data protection law – Strike out order –GDPR breaches – RSC, O.19, r.28 –General Data Protection Regulation (GDPR), arts.5,6 – Plaintiff seeks dismissal of the defendants’ application and various reliefs including inspection of files and injunctions – Whether the plaintiff’s claims regarding GDPR breaches and alleged illegality in the sale of the property were valid – 13/02/2026 – [2026] IEHC 77

Burns v John J. Quinn and Co. LLP and ors

Data protection law – Interlocutory relief order – Interlocutory relief – Data Protection Act 2018, s.156 – Regulation (EU) 2016/679, art.17 – Appellant seeks interlocutory relief for anonymisation and in camera hearing of proceedings –Whether the appellant’s delay in seeking interlocutory relief disentitled him to the orders sought – 26/01/2026 – [2026]

IECA 19

O’Neill v Revenue Commissioner

EDUCATION

Administrative law – Discovery order –Discovery and particulars – Teaching Council Act 2001, ss.42(1B),42(9) –Prohibition of Incitement to Hatred Act 1989, s.2 – Appellant seeks discovery and particulars related to the Investigating Committee’s decision under s.42(1B) of the Teaching Council Act 2001 – Whether the appellant was entitled to discovery and particulars related to the Investigating Committee’s decision under s.42(1B) of the Teaching Council Act 2001 –13/02/2026 – [2026] IECA 13 Johnson v The Teaching Council

EMPLOYMENT LAW

Employment law – Injunction order –Mootness of proceedings – RSC, O.19, r.11 – Plaintiff seeks injunction and remittal of appeal to a new panel –Whether the proceedings were moot due to the resignations and undertakings of the defendants – 20/02/2026 – [2026]

IEHC 126

Burke v O’Longain and ors Employment law – Dismissal order –Procedural compliance – Protected Disclosures Act 2014, s.5 – Unfair Dismissals Act 1977 – Respondent seeks dismissal of appellant’s appeal for being irregular and vexatious – Whether the appellant’s appeal enjoys reasonable

prospects of success – 12/12/2025 –[2025] IEHC 758

Nowak v Moorehall Disability Services [T/A Moorehall Living]

Employment law – Dismissal order –Negligence – Plaintiff seeks damages for negligence and personal injuries –Whether the defendant was negligent in relation to the system of work that led to the plaintiff’s accident – 26/02/2026 –[2026] IEHC 99

Walsh v Juniper Orthodontics Limited

EXTRADITION LAW

Extradition law – Surrender order – Issue estoppel – European Arrest Warrant Act 2003, ss.2,45 – Applicant seeks the surrender of the respondent under a European Arrest Warrant – Whether the respondent’s surrender is precluded due to issue estoppel, abuse of process, or breach of Article 8 of the European Convention on Human Rights –11/02/2026 – [2026] IEHC 95

Minister For Justice v Bucki

Extradition law – Surrender order –Surrender under European Arrest Warrant – European Arrest Warrant Act 2003, ss.11,45 – Applicant seeks the surrender of the respondent to the Czech Republic under the European Arrest Warrant –Whether the respondent’s surrender to the Czech Republic under the European Arrest Warrant Act 2003 is justified –20/02/2026 – [2026] IEHC 101

Minister for Justice v Jakubcik

Extradition law – Surrender order –Disproportionate interference with family life – European Arrest Warrant Act 2003, ss.11(1A),37 – Sexual Offences Act 2003, s.128 – Applicant seeks the surrender of the respondent to the United Kingdom for prosecution and enforcement of sentences – Whether the surrender of the respondent to the United Kingdom would constitute a disproportionate interference with his private and family life –19/12/2025 – [2025] IEHC 755

Minister For Justice v Lomas

Extradition law – Surrender order – Trial in absentia – European Arrest Warrant Act 2003, ss.10,37 – European Arrest Warrant Act 2024, s.45 – Respondent seeks to prevent surrender to the United Kingdom – Whether the appellant waived her right to be present at her trial – 02/03/2026 –[2026] IECA 22

Minister for Justice v McCarthy

Extradition law – Surrender order –Compliance with s.11 – European Arrest Warrant Act 2003, ss.11,14 – Criminal Justice (Theft and Fraud Offences) Act 2001, s.4 – Applicant seeks the surrender

of the respondent to Romania to serve a sentence of imprisonment – Whether the European Arrest Warrant sufficiently complies with section 11(1A)(f) of the European Arrest Warrant Act 2003 –10/02/2026 – [2026] IEHC 75

Minister for Justice, Home Affairs and Migration v Tudor

FAMILY LAW

Family law – Transfer of jurisdiction order – Transfer of jurisdiction – Child Care Act 1991, ss.8,28 – Protection of Children (Hague Convention) Act 2000, art.8 –Appellant seeks to retain jurisdiction in Ireland for childcare proceedings –Whether the transfer of jurisdiction to the courts of England and Wales is in the best interests of the child – 30/07/2025 –[2025] IECC 9

A(B) v Child and Family Agency and anor Family law – Property adjustment order –Division of company shares – Judicial Separation and Family Law Reform Act 1989, ss.2,3 – Family Law Act 1995, ss.8,15 – Applicant seeks decree of judicial separation and financial ancillary reliefs –Whether the respondent should be excluded from the sale process of the company shares – 06/02/2026 – [2026] IEHC 108

B(A) v B(C)

Family law – Discovery order – Non-party discovery – Family Law (Divorce) Act 1996, ss.5,20 – Respondent seeks disclosure of valuation report and financial documents from non-parties – Whether the valuation report should be disclosed to the respondent’s legal team under confidentiality restrictions – 27/02/2026 – [2026] IECA 21

C v B

Family law – Interim access order – Interim access – Guardianship of Infants Act 1964, ss.11B,32 – Applicant seeks interim access to the child born through surrogacy –Whether section 11B of the Guardianship of Infants Act 1964 requires a professional report conveying the views of the child before granting interim access –12/02/2026 – [2026] IEHC 98

C(A) v C(D)

Childcare law – Protective costs order –Child Care Act 1991, ss.26,47 – Legal Services Regulation Act 2015, ss.168,169 – Respondent seeks a protective costs order shielding her from adverse costs –Whether the guardian ad litem should be granted a protective costs order shielding her from adverse costs – 25/02/2026 –[2026] IEHC 88

Child and Family Agency v Guardian ad litem and anor

Family law – Substitute consent order –Refusal of medical treatment – Assisted Decision Making (Capacity) Act 2015, s.84 – Non-fatal Offences Against the Person Act 1997, s.23 – Applicant seeks court authorisation for medical treatment including blood transfusion for the minor – Whether the court should override the minor’s refusal of a blood transfusion based on religious beliefs – 13/02/2026 – [2026] IEHC 134

In the matter of E

Family law – Return order – Child abduction – Child Abduction and Enforcement of Custody Orders Act 1991 – Applicant seeks the return of the child to Kansas – Whether the undertakings proposed by the mother were necessary and acceptable for the return of the child to Kansas – 11/02/2026 – [2026] IEHC 92

G v G [No. 2]

Family law – Return order – Child objections – Child Abduction and Enforcement of Custody Orders Act 1991 – Applicant seeks the return of the child to England under the Hague Convention – Whether the objections of the child to returning to England were sufficient to prevent his return – 18/02/2026 – [2026] IEHC 105

G(F) v G(HI)

Family law – Decree of judicial separation – Proper financial provision – Judicial Separation and Family Law Reform Act 1989, s.2 – Family Law Act 1995, s.16 –Applicant seeks decree of judicial separation and ancillary reliefs – Whether proper financial provision was made for the parties and their children –13/02/2026 – [2026] IEHC 72

M(JK) v M(L)

Family law – Decree of divorce – Disposal of family home – Family Law (Divorce) Act 1996, ss.5,14,15,20 – Applicant seeks affirmation of Circuit Court order for sale of property and division of proceeds –Whether CB should be allowed to buy out NM’s share in the family home or if the property should be sold and proceeds divided – 19/02/2026 – [2026] IEHC 119

M(N) v B(C)

Family law – No order as to costs – Costs following delay – RSC, O.99 – Legal Services Regulation Act 2015, s.169 –Respondent seeks costs following the striking out of proceedings – Whether the respondent should be awarded costs or no order as to costs should be made –25/02/2026 – [2026] IEHC 114

O’H(D) v Tusla The Child and Family Agency [No. 2]

Family law – Variation order – Variation of

executory order – Family Law (Divorce) Act 1996, s.22 – Land and Conveyancing Law Reform Act 2009, s.31 – Plaintiff seeks variation of the order for sale to allow purchase of defendant’s share –Whether the order for sale should be enforced or varied due to the untimely death of the notice party – 14/11/2025 – [2025] IECC 10

Q(R) v Q(B)

HOUSING

Housing law – No order as to costs – Costs in mootness cases – Housing (Miscellaneous Provisions) Act 2009, s.22 – Applicants seek costs of judicial proceedings – Whether the council’s actions in offering housing were undertaken in response to the proceedings – 13/02/2026 – [2026] IEHC 73

M(S) and anor v Dublin City Council

HUMAN RIGHTS

Human rights law – Declaration order –Francovich damages – European Communities (Reception Conditions) Regulations 2018 – Applicants seek Francovich damages for breach of material reception conditions – Whether the applicants were entitled to Francovich damages for the State’s failure to provide material reception conditions – 19/02/2026 – [2026] IEHC 90

A(S) v Minister For Children, Equality, Disability, Integration and Youth and ors, RJ v Minister For Children, Equality, Disability, Integration and Youth and ors

IMMIGRATION

Immigration law – Certiorari order –Mootness of appeals – International Protection Act 2015, ss.72A,21 –Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2020 – Respondents seek to challenge orders made against them under the 2020 amendment of the 2015 Act – Whether the appeals are moot due to legislative changes – 18/02/2026 –[2026] IESC 8

E v International Protection Appeals Tribunal and ors; FOM v Minister for Justice and ors

Immigration law – Leave application –Judicial review – Illegal Immigrants (Trafficking) Act 2000 – International Protection Act 2015, ss.49(4)(b),49(7) –Applicant seeks leave to issue judicial review proceedings to quash the decision refusing permission to remain – Whether the applicant has established substantial

grounds to quash the decision refusing permission to remain – 18/12/2025 –[2025] IEHC 761

M v Minister for Justice, Home Affairs and Migration

Immigration law – Judicial review order –Judicial review – International Protection Act 2015, ss.35,43 – Applicant seeks to quash the Tribunal’s decision denying him refugee and subsidiary protection declarations – Whether the Tribunal erred in law in refusing the applicant an oral hearing – 11/02/2026 – [2026] IEHC 64

M(I) v International Protection Appeals Tribunal and anor

Immigration law – Leave to appeal order – Ministerial discretion – International Protection Act 2015, ss.49,49(3)(b) –Illegal Immigrants (Trafficking) Act 2000, s.5(6) – Applicant seeks leave to appeal the High Court’s decision regarding the ministerial discretion exercised under s.49 of the International Protection Act 2015 – Whether the ministerial discretion under s.49(7) of the International Protection Act 2015 was exercised lawfully in balancing the State’s interest and individual circumstances – 06/03/2026 – [2026] IEHC 138

M(S) v Minister For Justice [No. 2]

Immigration law – Quashing order – Fair procedures – Illegal Immigrants (Trafficking) Act 2000, s.5 – International Protection Act 2015, ss.15,35 – Applicants seek to quash the IPO report and recommendation, Minister’s refusal of permission to remain, and s.40 notification – Whether the interview process was conducted in accordance with s.35 of the International Protection Act 2015 and constitutional justice – 25/02/2026 –[2026] IEHC 102

N and anor v An International Protection Officer and ors

Immigration law – Order of certiorari –Extension of time – Illegal Immigrants (Trafficking) Act 2000, s.5(2) –International Protection Act 2015, ss.13(2),15 – Applicant seeks an extension of time and an order of certiorari to quash the Tribunal’s decision – Whether the Tribunal unlawfully failed to engage with, weigh, or reason upon the medico-legal evidence supporting credibility – 02/03/2026 – [2026] IEHC 121

N v International Protection Appeals Tribunal and anor

Immigration law – Judicial review order –Adequacy of reasons – Illegal Immigrants (Trafficking) Act 2000, s.5 – International Protection Act 2015, s.31 – Applicant seeks judicial review of the Tribunal’s

decision denying international protection – Whether the Tribunal failed to give adequate reasons for preferring one piece of country of origin information over another – 03/03/2026 – [2026] IEHC

120

S(E) [Albania] v International Protection Appeals Tribunal and anor Immigration law – Judicial review order –Eligibility for regularisation scheme –European Communities (Free Movement of Persons) Regulations 2015, ss.7,27 –Applicant seeks judicial review of the Minister’s decision refusing permission under the regularisation scheme –Whether the applicant was lawfully resident in the State during the relevant period and eligible for the regularisation scheme – 25/02/2026 – [2026] IEHC 112

Y(FA) [Nigeria] v Minister For Justice [No. 2]

INJUNCTIONS

Contract law – Mandatory injunction –Mandatory injunction – RSC, O.21, r.10 –Plaintiff seeks mandatory injunction compelling defendant to sign SPA –Whether the defendant should be compelled to sign the SPA despite his claims of mistake – 17/02/2026 – [2026] IEHC 91

Moloney v Sheehy

Contract law – Stay on costs order – Costs of interlocutory injunction – Legal Services Regulation Act 2015, ss.168,169 –- Trade Marks Act 1996 – Defendants seek costs of the interlocutory injunction application – Whether the defendants are entitled to costs of the interlocutory injunction application – 03/02/2026 – [2026] IEHC 60

Somnus GMC Waterford Limited and anor v Flynn and anor

JUDICIAL REVIEW

Judicial review – Extension of time order – Recusal application – Court of Appeal Practice Direction CA 14 – Applicant seeks to revisit a final judgment and order of the Court of Appeal – Whether the applicant demonstrated cogent and substantive grounds for a review application –21/01/2026 – [2026] IECA 4 G(A) v DPP

Public procurement law – Judicial review order – Abnormally low tender – European Union (Award of Public Authority Contracts) Regulations 2016, ss.18,69 –European Communities (Public Authorities Contracts) Review Procedures Regulations 2010, ss.7,8 – Applicant seeks judicial review of the respondent’s decision to award the contract to the notice party –

Whether the respondent committed a manifest error in concluding that the successful tenderer’s bid was not abnormally low – 12/02/2026 – [2026] IEHC 70

Kerrigan Sheanon Newman Unlimited Company v Sustainable Energy Authority of Ireland

Judicial review – No order as to costs –Mootness of judicial review – Non-Fatal Offences Against the Person Act 1997, s.2 – Applicant seeks judicial review of summary prosecution and Adult Cautioning Scheme – Whether the applicant’s judicial review proceedings are moot and whether the court should proceed to hear the case on public interest grounds – 11/12/2025 – [2025] IEHC 759

Lynch v DPP and ors

Judicial review – Certiorari order –Procedural fairness – Coroners Act 1962 –Applicant seeks judicial review remedies against the respondents – Whether the applicant was entitled to judicial review remedies against the respondents –19/12/2025 – [2025] IEHC 741

Redic v Commissioner of An Garda Síochána and ors

Judicial review – Reporting restrictions order – Reporting restrictions – Pharmacy Act 2007 – Applicant seeks reporting restrictions in judicial review proceedings – Whether reporting restrictions should be imposed in judicial review proceedings –06/02/2026 – [2026] IEHC 54

Student A v Trinity College Dublin and anor

LANDLORD AND TENANT

Property law – Monetary award –Proprietary estoppel – Landlord and Tenant (Amendment) Act 1980 – Plaintiff seeks a lease or monetary remedy based on proprietary estoppel – Whether proprietary estoppel applies to grant a lease or monetary remedy – 18/02/2026 – [2026] IESC 9

ACE Autobody v Motorpark Ltd and ors

Property law – Relief against forfeiture –Fee simple acquisition – Landlord and Tenant (Ground Rents) (No. 2) Act 1978, ss.9,10 – Landlord and Tenant (Ground Rents) Act 1967, s.4 – Respondents seek to acquire the fee simple interest in the property – Whether the respondents were entitled to acquire the fee simple interest in the property under the provisions of the Landlord and Tenant (Ground Rents) (No. 2) Act 1978 – 05/02/2026 – [2026] IESC 6

Crowley and anor v Sheehan and anor

Property law – Declaration of ownership – Ownership of windows – Landlord and Tenant (Amendment) Act 1860, s.17 –Respondent seeks declaration of ownership of windows – Whether the windows were part and parcel of the premises or tenant fixtures – 18/02/2026 – [2026] IESC 10

RGRE Grafton Limited v Bewley’s Cafe Grafton Street Limited and anor Residential tenancies law – Declaration order – Validity of termination notice –Residential Tenancies Act 2004, ss.62,64A – Appellant seeks to quash the determination and declare the Tribunal’s decision invalid – Whether the Tribunal erred in law or acted ultra vires in deciding that the apparent absence of a signature on the Termination Notice was a slip or omission that did not invalidate the Termination Notice – 10/02/2026 –[2026] IEHC 71

Ulemu Chimwala v The Residential Tenancies Board and anor Landlord and tenant law – Dismissal order – Statutory occupation termination –Landlord and Tenant (Amendment) Act 1980, ss.13,28 – Plaintiff seeks a new tenancy under the Landlord and Tenant (Amendment) Act 1980 – Whether the landlord’s physical re-entry without a court order lawfully terminated the tenant’s statutory occupation –04/03/2026 – [2026] IEHC 124

Verbenagrove Limited v Evans and anor

MEDICAL LAW

Medical negligence – Dismissal of claim –Breach of duty – Legal Services Regulation Act 2015, s.169 – Plaintiff seeks damages for alleged negligence in failing to diagnose appendicitis and delaying hospital referral – Whether the primary diagnosis of gastroenteritis and subsequent management by the GP was reasonable and in accordance with the standard expected of a GP acting with ordinary care – 11/02/2026 – [2026] IEHC 110

Afolabi v Southdoc Services Limited and anor

MENTAL HEALTH

Mental health law – Declaration order –Appeal after discharge – Mental Health Act 2001, ss.19,28 – Appellant seeks Circuit Court appeal against Mental Health Tribunal decision – Whether the appellant can appeal to the Circuit Court under s.19 of the Mental Health Act 2001 after discharge – 12/02/2026 – [2026] IECA 12

H v Mental Health Tribunal and ors

PERSONAL INJURIES

Personal injury law – Dismissal application – Delay in prosecution – Statute of Limitations (Amendment) Act 1991, s.3 –Sixth named defendant seeks dismissal of the plaintiff’s claim due to inordinate and inexcusable delay – Whether the plaintiff’s delay in progressing the proceedings was inordinate and inexcusable, and whether the balance of justice favoured dismissal of the claim against the sixth named defendant – 25/02/2026 – [2026] IEHC 142

Casey v Skehan and ors

Personal injuries law – Damages order –Liability for personal injuries – Plaintiff seeks damages for personal injuries allegedly caused by the defendant’s van –Whether the defendant’s vehicle struck the plaintiff and caused her injuries –15/12/2025 – [2025] IEHC 757

Higgins v Coleman and anor

Personal injury law – Unitary trial order –

Modular trial – Plaintiff seeks a modular trial to determine liability first and quantum later – Whether a modular trial should be directed or a unitary trial should proceed – 13/02/2026 – [2026] IEHC 61

McInerney [minor] v Kildare County Council

Personal injury law – Damages award –Assessment of damages – Plaintiff seeks damages for injuries sustained in a road traffic accident – Whether the plaintiff suffered post-concussion syndrome and post-concussion worsening of migraine –16/02/2026 – [2026] IEHC 87

Sheehan v Beamish

PLANNING AND ENVIRONMENTAL LAW

Planning and environment law – Certiorari order – Leave to appeal – Planning and Development Act 2000, ss.50,50A –Planning and Development (Housing) and Residential Tenancies Act 2016 – Notice party seeks leave to appeal the High Court’s decision to quash the Commission’s planning decision –Whether the notice party’s application for leave to appeal should be dismissed –06/03/2025 – [2026] IEHC 137

Condon v An Coimisiún Pleanála and anor [No. 2]

Environmental law – Certiorari order –Material contravention of development plan – Climate Action and Low Carbon Development Act 2015, s.15 – Planning and Development Act 2000, s.37G –Appellant seeks the quashing of the Commission’s decision refusing planning permission for a wind farm development

– Whether the Commission should exercise its power under s.37G(6) of the Planning and Development Act 2000 in light of s.15(1) of the Climate Action and Low Carbon Development Act 2015 –04/2/2026 – [2026] IESC 5

Coolglass Wind Farm Limited v An Bord Pleanála

Planning and environmental law –Remittal order – Remittal of planning decision – Climate Action and Low Carbon Development Act 2015, s.15 – Planning and Development Act 2000, ss.37G(6),50A(9A) – Respondent seeks remittal of the matter to the planning application process for reconsideration of the Commission’s decision – Whether the Commission erred in law by failing to address the implications of s.15(1) of the Climate Action and Low Carbon Development Act 2015 and whether it should exercise its powers under s.37G(6) of the Planning and Development Act 2000 – 02/03/2026 – [2026] IESC 13

Coolglass Wind Farm Limited v An Bord Pleanála

Environmental law – Protective costs order – Wastewater connection agreement –Environment (Miscellaneous Provisions) Act 2011, ss.3,4 – Water Services Act 2007, ss.31,61 – Applicant seeks to quash the wastewater connection agreement –Whether the wastewater connection agreement will cause environmental damage – 26/02/2026 – [2026] IEHC 106

Friends of the Irish Environment Company Limited by Guarantee v Uisce Éireann and ors

Planning and development law – Certiorari order – Failure to notify reliance –Planning and Development Act 2000, ss.50,50A,50B – Applicant seeks certiorari quashing the decision of the respondent to refuse planning permission – Whether the respondent breached s.137 of the Planning and Development Act 2000 by failing to notify the applicant of reliance on HPO1 – 16/02/2026 – [2026] IEHC 78

Garryduff Properties Limited v An Coimisiún Pleanála and anor Planning and environmental law –Certiorari order – Judicial review –Planning and Development Act 2000, ss.50,50A,50B – Applicants seek to quash the decision granting planning permission for a wind farm development – Whether the respondent failed to comply with the requirements of s.146 of the Planning and Development Act 2000 – 10/02/2026 –[2026] IEHC 65

Hoctor and ors v An Coimisiún Pleanála

and anor

Planning and environment law –Declaration order – Costs protection –Planning and Development Act 2000, s.50B – Environment (Miscellaneous Provisions) Act 2011, s.3 – Applicant seeks a declaration of costs protection under s.50B of the Planning and Development Act 2000 – Whether the applicant is entitled to costs protection under s.50B of the Planning and Development Act 2000 – 16/02/2026 –[2026] IEHC 85

Joyce v An Coimisiún Pleanála and anor Planning and environmental law – Order of certiorari – Judicial review – Roads Act 1993, s.51 – Applicant seeks judicial review of the decision to place a bus stop outside her home – Whether the decision to place a bus stop outside the applicant’s home was valid and adequately reasoned – 23/09/2025 – [2025] IEHC 505

Kelly v An Comisiún Pleanála Environmental law – Statutory injunction order – Declarations and orders – Planning and Development Act 2000, s.160 –Waste Management Act 1996, s.57 –Applicant seeks declarations and orders under the Planning and Development Act 2000 and Waste Management Act 1996 –Whether the declarations and orders sought under the amended Notice of Motion should be included in the proceedings – 19/02/2026 – [2026] IEHC 118

Malone v GCHL Limited and ors [No. 4] Environmental law – Reference order –Environmental assessment requirements –Directive 2001/42/EC – Applicants seek clarification on environmental assessment requirements under Directive 2001/42/EC – Whether the reconfigured questions for reference to the Court of Justice of the European Union should include the Aarhus Convention and Kyiv Protocol – 10/02/2026 – [2026] IEHC 66

McDonald and ors v Minister for Housing, Local Government and Heritage [No.2] Environmental law – Preliminary ruling order – Strategic environmental assessment – Directive 2001/42, art.3 –Planning and Development Act 2000, ss.28,10 – Applicants seek a preliminary ruling on the interpretation of Directive 2001/42 – Whether the guidelines require assessment under Directive 2001/42 –10/02/226 – [2026] IEHC 67

McDonald and ors v Minister for Housing, Local Government and Heritage [No.3] Planning and environmental law – Order of Certiorari – Environmental Impact Assessment – Planning and Development Act 2000, ss.50,50A,50B – Applicants

seek to quash the respondent Commission’s decision granting planning permission for a solar energy development – Whether the respondent Commission erred in law by not requiring an Environmental Impact Assessment for the solar energy development –10/02/2026 – [2026] IEHC 62

Moss and ors v An Coimisiún Pleanála and anor

Planning and environment law –Retention permission – Abandonment of residential use – Planning and Development Act 2000, ss.50,50A –Planning and Development Act 2024, s.495 – Applicant seeks certification of questions for appeal to the Court of Appeal – Whether the applicant demonstrated that the decision to grant retention permission was invalid –03/02/2026 – [2026] IEHC 36

O’Murthuile v ABP and ors

Planning and environment law – Order of certiorari – Judicial review – Planning and Development Act 2000, ss.50,50A,50B –Applicant seeks judicial review to quash the Commission’s decision refusing planning permission for an eight-storey hotel – Whether the Commission failed to provide adequate reasons for disagreeing with the inspector’s recommendation to grant permission – 16/02/2026 – [2026]

IEHC 86

Parosi Developments Limited v An Coimisiún Pleanála and ors

Planning and environment law – Referral order – Remittal of case – RSC, O.84 –European Communities (Access to Information on the Environment) Regulations 2007-2014 – Applicant seeks referral of questions to the Court of Justice of the European Union – Whether remittal caused delay in resolving the case – 10/02/2026 – [2026] IEHC 68 People Over Wind v Commissioner For Environmental Information and anor [No. 2]

Administrative law – Order of mandamus – Planning and Development Act 2000, ss.19,20 – Planning and Development Act 2024, s.75 – Appellant seeks an order of mandamus compelling the respondent to make a local area plan – Whether the making of an order for mandamus would be futile and inappropriate – 19/02/2026 – [2026] IESC 12

Protect East Meath Limited v Meath County Council Planning and development law – Certiorari order – Exempted development –Planning and Development Act 2000, ss.50,50A,50B – Planning and Development Regulations 2001, Class

33(c) – Applicants seek an order of certiorari to quash the Council’s s.5 declaration – Whether the Council acted ultra vires in granting a s.5 declaration for exempted development under the Planning and Development Act 2000 –18/02/2026 – [2026] IEHC 93

Protect Kenilworth Square and anor v Dublin City Council and ors Planning and environmental law – Order of certiorari – Judicial review – Planning and Development Act 2000, ss.50,50A,50B – Planning and Development Regulations 2001, art.214(1) – Applicants seek to quash the planning permission granted for a wind farm development – Whether the rectification of the original planning permission error negates the need for certiorari – 06/03/2026 – [2026] IEHC 135

Rural Residents Wind Aware and Environmental Group and ors v An Coimisiún Pleanála [I] and ors [No. 2]

Environmental law – Order of certiorari –Conservation objectives – Planning and Development Act 2000, ss.50,50A,50B –Applicants seek judicial review to quash the decision of the first respondent granting permission for amendments to a wind farm project – Whether the fourth respondent failed to establish conservation objectives and measures for grey heron and mallard in the River Nore SPA – 06/03/2026 – [2026] IEHC 136

Rural Residents Wind Aware and Environmental Group and ors v An Coimisiún Pleanála and Ors [II] [No. 2]

PRACTICE AND PROCEDURE

Civil procedure – Strike out order – Strike out application – RSC, O.19, r.28 –

Plaintiff seeks damages for alleged modern-day slavery and financial abuse, and payment of EU farm entitlements –Whether the plaintiff’s claims against the State defendants disclosed a reasonable cause of action or were statute barred –04/03/2026 – [2026] IECA 27

Boyle v Property Registration Authority of Ireland and ors

Constitutional law – Strike out order – Res judicata – Presidential Elections Act 1993, ss.55,58 – Defendants seek to strike out the plaintiff’s proceedings on grounds of res judicata, abuse of process, and failure to disclose a reasonable cause of action –Whether the plaintiff’s proceedings should be struck out on the grounds of res judicata, abuse of process, and failure to disclose a reasonable cause of action –19/12/2025 – [2025] IEHC 760

Byrne v Tánaiste and ors [No. 2]

Civil procedure – Strike out order – Statute of Limitations – RSC, O.19, r.28 – Personal Injuries Assessment Board Act 2003, s.12 – Defendant seeks to strike out plaintiff’s claims as statute barred – Whether the plaintiff’s claims disclose a reasonable cause of action or are statute barred –09/02/2026 – [2026] IEHC 113

Hickey v Howley and ors Contract law – Summary judgment –Courts of Justice Act 1936, s.37 – Plaintiff seeks summary judgment for unpaid invoice amount – Whether the defendant has established a bona fide defence of estoppel or set-off – 20/02/2026 –[2026] IEHC 96

JACC Sports Distributors Limited [in liquidation] v Shamrock Rovers FC Limited Civil procedure – Isaac Wunder order –Courts (Supplemental Provisions) Act 1961, s.22 – Applicant seeks to challenge the geographical limitations of an Isaac Wunder order – Whether the High Court can make an order preventing a plaintiff from instituting proceedings in other courts without permission – 23/01/226 –[2026] IESC 2 M v M

Judicial review – Judicial review order –Tribunal’s terms of reference – RSC, O.84 – Statutory Instrument 304/2024 –Applicant seeks to quash Tribunal decisions excluding his complaint –Whether the applicant’s complaint falls within the Tribunal’s terms of reference –30/01/2026 – [2026] IEHC 40

O’Brien v Tribunal of Inquiry into Issues Relating to the Complaints Processes in the Defence Forces and the Culture Surrounding the Making of Such Complaints and ors

PROBATE

Probate law – Probate order –Presumption of revocation – Succession Act 1965 –Plaintiffs seek to admit the will to probate – Whether the original will was sent to the deceased and came into her possession – 06/02/2026 – [2026] IEHC 63

Eastwood (in their capacity as executors named in the last will and testament of the late Mary Eastwood) and anor (in his capacity as a beneficiary named in the last will and testament of the late Mary Eastwood) v Richards and ors

Probate and estate law – Costs order –Costs of EPA registration – Powers of Attorney Act 1996, ss.9,10 – Applicant seeks costs of EPA registration application to be paid from the donor’s estate –Whether the attorney’s costs for the

application to register the EPA should be paid out of the estate of the deceased donor – 26/02/2026 – [2026] IEHC 111 M(C) v V(A)

PROPERTY LAW

Property law – Possession order –Possession of property – Courts of Justice Act 1936, ss.37,38 – Registration of Title Act 1964, s.31 – Applicant seeks possession of the property and substitution as plaintiff – Whether Mars Capital Finance Ireland Designated Activity Company is entitled to possession of the property – 13/02/2026 – [2026] IEHC 80

Bank of Ireland Mortgage Bank v Seery and anor

Property law – Judicial review leave refusal – Compulsory purchase order – Planning and Development Act 2000, ss.50,50A –Appellant seeks to challenge the compulsory purchase order and its confirmation by An Bord Pleanála –Whether the appellant’s refusal to exhibit the Inspector’s report and her arguments against the compulsory purchase order involved a point of law of exceptional public importance – 20/02/2026 –[2026] IECA 17

Heavey v An Coimisiún Pleanála and anor Property law – Mandatory interlocutory injunction – Restrictive covenant – Land and Conveyancing Law Reform Act 2009, s.50 – Appellant seeks part payment of an arbitrator’s award – Whether part payment of an arbitrator’s award can be directed in circumstances where the appellant is unable to prove the title upon which that award was based – 11/02/2026 – [2026] IECA 11

Jackson Way Properties Limited v Dún Laoghaire Rathdown County Council Property law – Interlocutory injunction –Land and Conveyancing Law Reform Act 2009, s.124 – Registration of Title Act 1964, s.31 – Plaintiffs seek interlocutory injunctions to restrain property registration and restore access to wastewater pipe – Whether the plaintiffs established a fair question to be tried regarding the interlocutory injunctions sought – 10/02/2026 – [2026] IEHC 74 O’Flaherty and ors v Permanent TSB Public Limited Company and ors Property law – Exemption order –Exemption from rates – Valuation Act 2001, para.14 – Respondents seek exemption from rates for their care facilities under para. 14(b) of the Valuation Act 2001 – Whether the expenses incurred by the respondents in carrying on their activities were defrayed

wholly or mainly out of monies provided by the Exchequer – 28/01/2026 – [2026] IESC 3

Redwood Extended Care Facility v Tailte Éireann (Formerly Commissioner of Valuation); Nua Healthcare Services Limited v Tailte Éireann (Formerly Commissioner of Valuation)

Property law – Strike out application –Charitable trust – RSC, O.19, r.28 –Plaintiff seeks to restrain the sale of the field to the GAA club – Whether the field was purchased in 1959 on trust for the benefit of all children or young people of the parish – 26/02/2026 – [2026] IEHC 103

St Brigid’s RFC Company Limited by Guarantee v St Laurence O’Toole Diocesan Trust Company Limited By Guarantee and anor

Property law – Possession order –Execution of possession order – CCR, O.22, r.4 – CCR, O.36, r.10 – Respondent seeks to execute the order for possession of the property – Whether the respondent is entitled to execute the order for possession of the property – 12/02/2026 – [2026] IEHC 56

Start Mortgages Designated Activity Company and anor v Corr and anor

Property law – Strike out order – Adverse possession – Registration of Deeds and Title Act 2006, s.35 – RSC, O.19, r.28 –Appellant seeks confirmation of adverse possession and voiding of property conveyance – Whether the appellant’s claim for adverse possession of the property was bound to fail – 20/02/2026 – [2026] IECA 18

Von Geitz v O’Brien and anor

ROAD TRAFFIC

Judicial review – Order of Certiorari –Special plea of autrefois acquit – Road Traffic Act 1961, s.53 – Road Traffic Act 2010, ss.4(1),4(3) – Applicant seeks judicial review to quash convictions and sentences imposed by the District Court –Whether the applicant is entitled to avail of the special plea of autrefois acquit and whether the matter should be remitted to the District Court for retrial – 04/12/2025

– [2025] IEHC 764

McCarthy v DPP

SOCIAL WELFARE

Social welfare law – Costs order – Revision of appeals officer’s decision – Social Welfare Consolidation Act 2005, ss.210,317 – Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007, art.137 – Appellant seeks to overturn the High Court’s refusal

of appeal on questions of law – Whether the appeals officer’s decision was erroneous in light of new evidence or facts – 12/12/2025 – [2025] IECA 275

L(N) v Minister for Social Protection and ors

TAXATION

Taxation law – Dismissal order – Statute of Limitations – Statute of Limitations 1957, s.71 – Taxes Consolidation Act 1997, s.865 – Appellant seeks to overturn the High Court’s decision that the claim is statute barred – Whether the appellant’s claim was statute barred under s.71(1)(b) of the Statute of Limitations 1957 –25/02/20206 – [2026] IECA 20

Farrell and anor v Revenue Commissioner

Ireland and anor

Taxation law – Determination order – Tax avoidance – Taxes Consolidation Act 1997, ss.31,607 – Appellants seek to overturn the determination of the Tax Appeals Commissioner – Whether the transactions constituted tax avoidance under section 811 of the Taxes Consolidation Act 1997 – [2026] IEHC 59

Hegarty v Revenue Commissioners, Geary v Revenue Commissioners, Ward v Revenue Commissioners

Bills initiated in Dáil Éireann during the period January 22, 2026, to March 12, 2026

[pmb]: Private Members’ Bills are proposals for legislation in Ireland initiated by members of the Dáil or Seanad. Other Bills are initiated by the Government.

Assisted Decision-Making (Capacity) (Amendment) Bill 2026 – Bill 20/2026

Education (Medical Emergencies in Schools) Bill 2026 – Bill 15/2026 [pmb] –

Deputy Eoghan Kenny

Electricity Regulation (Amendment) Bill 2026 – Bill 26/2026 [pmb] – Deputy Pa

Daly, Deputy Darren O’Rourke, Deputy Louis O’Hara, Deputy Réada Cronin

Electricity Regulation (Amendment) (Standing Charges) Bill 2026 – Bill 27/2026 [pmb] – Deputy Pa Daly, Deputy Darren O’Rourke, Deputy Louis O’Hara, Deputy Réada Cronin

Harassment, Harmful Communications and Related Offences (Amendment) Bill 2026 – Bill 8/2026 [pmb] – Deputy Máire

Devine, Deputy Matt Carthy

Harassment, Harmful Communications and Related Offences (Amendment) (No. 2) Bill 2026 – Bill 13/2026 [pmb] –Deputy Alan Kelly

Health (Regulation of Termination of

Pregnancy) (Amendment) Bill 2026 – Bill 10/2026 [pmb] – Deputy Ruth Coppinger, Deputy Paul Murphy, Deputy Richard Boyd Barrett

International Protection Bill 2026 – Bill 6/2026

Irish Language Name and Address of the Person (Length Accent) Bill 2026 – Bill 25/2026 [pmb] – Deputy Aengus Ó Snodaigh, Deputy Réada Cronin, Deputy Conor D. McGuinness

Media Regulation Bill 2026 – Bill 19/2026

Official Languages (Right to Use the Irish Language) (Amendment) Bill 2026 – Bill 24/2026 [pmb] – Deputy Aengus Ó Snodaigh, Deputy Shónagh Ní Raghallaigh

Online Safety (Recommender Algorithms)

Bill 2026 – Bill 7/2026 [pmb] – Deputy Paul Murphy, Deputy Richard Boyd Barrett, Deputy Ruth Coppinger

Public Art Mural (Exempted Development) Bill 2026 – Bill 18/2026 [pmb] – Deputy Eoin Ó Broin

Repeal of Exempted Development Regulations Bill 2026 – Bill 23/2026 [pmb] – Deputy Eoin Ó Broin, Deputy Matt Carthy

Residential Tenancies (Miscellaneous Provisions) Act 2026 – Bill 11/2026

Social Housing Passport Bill 2026 – Bill 16/2026 [pmb] – Deputy Eoin Ó Broin, Deputy Mark Ward, Deputy Louise O’Reilly

Universal Access to Social Housing (Abolition of Income Limits) Bill 2026 –Bill 17/2026 [pmb] – Deputy Paul Murphy, Deputy Richard Boyd Barrett, Deputy Ruth Coppinger

Waste Management (Single Household Waste Collection Service) Bill 2026 – Bill 14/2026 [pmb] – Deputy Marie Sherlock

Work Life Balance (Right to Remote Work) Bill 2026 – Bill 12/2026 [pmb] – Deputy George Lawlor

Bills initiated in Seanad Éireann during the period January 22, 2026, to March 12, 2026

Criminal Justice (Theft and Fraud Offences) (Amendment) (Work Equipment) Bill 2026 – Bill 22/2026 [pmb] – Senator PJ Murphy, Senator Mark Duffy, Senator Mike Kennelly Maternity Protection (Child Bereavement) (Amendment) Bill 2026 – Bill 9/2026 [pmb] – Senator Nicole Ryan, Senator Chris Andrews, Senator Pauline Tully, Senator Maria McCormack, Senator Joanne Collins, Senator Conor Murphy Planning and Development (Provision of Public Housing) Bill 2026 – Bill 21/2026

[pmb] – Senator Chris Andrews, Senator Maria McCormack, Senator Joanne Collins, Senator Nicole Ryan, Senator Pauline Tully, Senator Conor Murphy

Progress of Bill and Bills amended in Dáil Éireann during the period January 22, 2026, to March 12, 2026

International Protection Bill 2026 – Bill 6/2026 – Committee Stage – Passed by Dáil Éireann

Protection of Employees (Employers’ Insolvency) (Amendment) Bill 2025 – Bill 28/2025 – Report Stage

Progress of Bill and Bills amended in Seanad Éireann during the period January 22, 2026, to March 12, 2026

Health Information Bill 2024 – Bill 61/2024 – Committee Stage

For up-to-date information, please check the following websites:

Bills and legislation

http://www.oireachtas.ie/parliament/ http://www.taoiseach.gov.ie/eng/Taoise ach_and_Government/Government_Legi slation_Programme/

Supreme Court determinations –leave to appeal granted Published on Courts.ie – January 22, 2026, to March 12, 2026

Diesel SPA v Controller of Patents, Designs and Trademarks and ors v Montex holdings Limited [2026] IESCDET 24 –Leave to appeal from the Court of Appeal granted on 26/02/2026 – (Charleton J., Woulfe J., Collins J.)

Director of Public Prosecutions v Boland [2026] IESCDET 31 – Leave to appeal from the Court of Appeal granted on 09/03/2026 – (O’Malley J., Murray J., Collins J.)

The people at the suit of the Director of Public Prosecutions v Bonney [2026] IESCDET 28 – Leave to appeal from the Court of Appeal granted on 06/03/2026 – (Charleton J., Murray J., Collins J.)

The people at the suit of the Director of Public Prosecutions v Dowling [2026] IESCDET 8 – Leave to appeal from the Court of Appeal granted on 29/01/2026

– (Dunne J., O’Malley J., Donnelly J.)

For up-to-date information, please check the Courts website:

https://www.courts.ie/determinations

EUROPEAN ARREST WARRANT

SURRENDER PROCEDURES

BETWEEN EU MEMBER STATES

Recent case law offers some clarification of the narrow conditions under which the subject of a European arrest warrant might request a temporary postponement of its execution.

Conal Ellis BL

The European Arrest Warrant Act 2003 (the EAW Act), as amended, seeks to give effect to Framework Decision 2002/584/JHA1 on the European arrest warrant (EAW) and the surrender procedures between relevant member states (the Framework Decision).

A core concept underpinning the Framework Decision, and hence the EAW Act, is that execution of an EAW, whether for the purposes of conducting a criminal prosecution or for serving a sentence of imprisonment previously imposed, is intended to be the norm, with any refusal to execute a warrant intended to be a strictly interpreted exception.2

Exceptional grounds for refusal

As was considered by Baker J. for the Supreme Court in Minister for Justice and Equality v Kairys [2022] IESC 531 at paragraph 14 and 15 of her judgment, the exceptional grounds for the

The European Arrest Warrant Act 2003 (the EAW Act), as amended, seeks to give effect to Framework Decision 2002/584/JHA1 on the European arrest warrant (EAW) and the surrender procedures between relevant member states (the Framework Decision).

refusal of a member state to execute an EAW must be strictly interpreted, and the nature of the EAW system is of an exclusive or “closed” character:

“14. It is well established in the authorities that these exceptional grounds for refusal to surrender must be interpreted strictly: Case C-579/15 Popławski (ECLI:EU:C:2017:503) (hereafter ‘Popławski (No. 1)’) and Arnayosi: see opinion of Advocate General Hogan in Case C-665/20 PPU Openbaar Ministerie v X (ECLI:EU:C:2021:303) and the authorities mentioned therein.

15. It is intended that the provisions be exclusive, and this has the effect that an executing judicial authority may refuse to execute a warrant only on the grounds for non-execution listed in the EAW FD itself”.

A core concept underpinning the Framework Decision, and hence the EAW Act, is that execution of an EAW, whether for the purposes of conducting a criminal prosecution or for serving a sentence of imprisonment previously imposed, is intended to be the norm, with any refusal to execute a warrant intended to be a strictly interpreted exception.

This interpretation of the exceptionality for refusal and the self-contained nature of the EAW system has recently been repeated by the Court of Justice of the European Union (CJEU) in the decision of C.J. (enforcement of a sentence further to an EAW) C-305/22 delivered on September 4, 2025, which concerned a refusal by the Italian authorities to execute an EAW issued by the authorities in Romania seeking the return of a person to that country for the purposes of serving a sentence of imprisonment previously imposed upon him. Rather, the Italian authorities unilaterally determined to recognise the Romanian criminal judgment and enforce the sentence in Italy under Article 4(6) of the Framework Decision, justifying the decision on the grounds that his prospects of rehabilitation would be greater in Italy than in Romania. The authorities in Romania insisted upon surrender on foot of the EAW, and were not agreeable to the recognition and enforcement of the sentence of imprisonment in Italy.

At paragraph 41 of the judgment, and repeated in no uncertain terms at paragraph 70, the Court stated:

“41. It follows, first, that the executing judicial authorities may refuse to execute a European arrest warrant only on grounds stemming from Framework Decision 2002/584, as interpreted by the Court. Second, while the execution

of a European arrest warrant constitutes the rule, refusal to execute that warrant is intended to be an exception, which must therefore be interpreted strictly (judgment of June 6, 2023, O.G. (European arrest warrant issued against a third-country national), C-700/21, EU:C:2023:444, paragraph 33 and the case-law cited)

70. If it is not possible for the executing State actually to assume responsibility for enforcing the sentence, for whatever reason, including on account of noncompliance with the conditions and procedure laid down in Framework Decision 2008/909, it follows from the principle of mutual recognition that, in order to prevent the impunity of the requested person, a European arrest warrant must be executed. As noted in paragraph 41 of the present judgment, the execution of a European arrest warrant constitutes the rule, while refusal to execute that warrant is an exception which must therefore be interpreted strictly”.

Conditions for postponement

Clearly, execution of an EAW is the rule, with exceptions thereto being very narrowly construed. However, the legislative framework set out by the Framework Decision and the EAW Act also allows for surrender to be temporarily postponed in a number of identified situations. Such situations consist of the facilitation of domestic criminal processes against the requested person in Ireland (either by way of ongoing proceedings or service of a term of imprisonment), and what may be referred to as “humanitarian grounds”.3 While the Supreme Court has given detailed consideration to postponement of surrender on humanitarian grounds in the decision of Minister for Justice and Equality v Sciuka [2021] IESC 80, the question remains as to precisely how widely such temporary postponement of surrender, within this exclusive or “closed” system, should be interpreted by the Courts, where the requested person wishes to apply to serve their custodial sentence (which had been imposed on them in another member state) here in Ireland.

The Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023 (the 2023 Act) seeks to give effect to Framework Decision 2008/909/JHA on mutual recognition of judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty (the 2008 Framework Decision).

As one would anticipate, the legislation allows for the establishment of a mechanism whereby a sentenced person might seek to serve a custodial sentence imposed on them by a member state in another member state of which they are a national, where they normally live, or in which they have close ties. At its heart lies the idea of social rehabilitation.

It is apparent from paragraph 87 of the decision of the CJEU in C.J. that a refusal to execute an EAW on the optional grounds provided for in Article 4(6) of the Framework Decision “presupposes that that [executing] judicial

authority has complied with the conditions and the procedure laid down in Framework Decision 2008/909”.

As part of those conditions and procedure, consent of the issuing state as regards the assumption of responsibility for the enforcement of the sentence imposed must be obtained.

However, mindful of this concept of social rehabilitation, could one nevertheless expect that a sentenced person, against whom an Order for Surrender has been made by the High Court on foot of an EAW issued for the purposes of serving a sentence of imprisonment imposed upon them in another member state, but with family, linguistic, cultural, social, economic or other links to Ireland, might at least seek to postpone their surrender on humanitarian grounds in order to allow time to explore the possibility of applying to serve that sentence in Ireland?

Certainly, in Sciuka, Hogan J. acknowledged that a generous reading should be afforded to postponement of surrender on humanitarian grounds, stating at paragraph 9 of his judgment:

“9. I do not doubt but that the humanitarian considerations exception contained in Article 23(4) of the Framework Decision should be read generously. It reflects, after all, the commitment by the European Union to the value of human dignity reflected in Article 1 of the EU Charter of Fundamental Rights and, for that matter, in the Preamble to the Constitution as well. One could thus easily posit examples of where surrender should be postponed on this ground: the case of a pregnant woman in an advanced stage of pregnancy or, as Edwards J. observed in Minister for Justice and Equality v DL [2011] IESC 248, the case of where the person sought to be surrendered is gravely ill are just two examples which come readily to mind. In the particular context of the Covid 19 pandemic, surrender could doubtless be postponed where, for example, the requested person was himself infectious, not least because of the threat which this posed to other persons such as Gardaí and prison officers who might be required to accompany him”.

While, at first glance, this might appear to suggest that a more permissive or flexible approach could be adopted towards the scope or extent of applications to postpone surrender of requested persons on humanitarian grounds under s.18(1)(a) of the Act, whereby exploration of the mere possibility of serving an imposed sentence here in Ireland under the 2023 Act might be facilitated by way of postponement of an Order for Surrender, it is suggested that such an attempt to postpone surrender by “waiting and seeing if sentence transfer can happen” would ultimately be unsustainable.

Hogan J.’s judgment itself acknowledges that this generosity of reading the exception comes against the constraints imposed by the exclusive or closed character of the EAW system, continuing:

Clearly, execution of an EAW is the rule, with exceptions thereto being very narrowly construed. However, the legislative framework set out by the Framework Decision and the EAW Act also allows for surrender to be temporarily postponed in a number of identified situations.

“10. At the same time, one must not ignore the fact that Article 23(4) represents an exception to the general surrender system envisaged by the Framework Decision. An exception of this kind as provided for by the Framework Decision should, as such, generally be strictly construed: see, for example, Case C- 579/19 Popławski EU:C:2017:503, paragraph 19 and Case C-270/17 PPU Tupikas, EU:C:2017:628, paragraph 50.

11. The entire European Arrest Warrant system is premised on mutual trust between the member states and it seeks to effectuate a speedy and efficient transfer of requested persons where (as here) the conditions specified in the Framework Decision have otherwise been satisfied. But where (as here) there has been an evidential failure to establish the existence of a particular proof (namely, in this case the existence of humanitarian considerations by reason of the fact that no suitable means existed by which Mr Scuika could be returned to Lithuania within the statutory timeframe), considerations of mutual trust and the obligation to assist a fellow member state cannot in themselves cure this evidential deficit.

12. In this context the actual language of Article 23(4) is also itself of some importance. Surrender may be ‘exceptionally’ postponed for ‘serious humanitarian reasons’ if there are ‘substantial grounds for believing that it would manifestly endanger the requested person’s life or health’. The words which I have taken the liberty of highlighting – ‘exceptionally’, ‘serious’, ‘substantial’, ‘manifestly’ – all underscore the fact that postponement of surrender on this ground is confined to special and particularised circumstances, the existence of which must have a secure evidential basis and, accordingly, must also be clearly established”.

As part of those conditions and procedure, consent of the issuing state as regards the assumption of responsibility for the enforcement of the sentence imposed must be obtained.

A narrow, exceptional mechanism

From the foregoing, it is clear that the courts are precluded from engaging in an arbitrary, though well-meaning, exercise of a generalised discretion to postpone the day of surrender of a requested person to serve a sentence in another member state using this humanitarian ground. Rather, the narrow, exceptional mechanism of postponement is directed for use only in demonstrable special, particularised circumstances, which, significantly, must be based upon a “secure” evidential basis. It would appear that a mere assertion that a more benevolent or preferable course of action is available to the Court through the adoption of a “wait and see approach” of a potential application under the 2023 Act is insufficient to engage s.18(1)(a) of the Act.

While the Supreme Court was concerned with an appeal against an Order for Surrender under the EAW Act in Kairys and which decision was handed down prior to the institution of the 2023 Act, the views of the Court as regards potential substitution of location for serving an imposed sentence of imprisonment remain particularly apt as regards potential postponement. At paragraph 75 of her judgment, Baker J. noted:

“75. Sixth, the 2008 FD provides that member states are to establish procedures which may be availed of by a requested person to make application to serve a sentence in a place other than where it was imposed. The obligation on member states is to create a right to apply. No obligation is thereby created which could compel a member state to accede to an application to be permitted to serve a

References

1. Itself subsequently amended by Framework Decision 2009/299/JHA.

2. See: Section 10 of the EAW Act, together with the Decisions of the CJEU in O.G. (European arrest warrant issued against a third-country national), C 700/21, and the Decision of the CJEU in C.J. (Enforcement of a sentence further to an EAW) C-305/22.

sentence in that state. No right is created by the 2008 FD, other than, once it is implemented, the right to apply for the benefit of a scheme envisaged by that Framework Decision and required to be implemented in domestic law. It does not create the right to serve a sentence in the member state of the prisoner’s choosing or where it might be argued optimal rehabilitation can best be achieved, but could, once implementing measures are in place, permit application to be made to serve the sentence in a place that might further the rehabilitation envisaged in the 2008 FD and which can be regarded as having a high value. But permission to substitute the place of execution will still depend on the existence of a scheme to serve the sentence in a state other than that where it is imposed, where the result of a request to be permitted to so do is not preordained but will depend on the assessment and application of discretionary factors by a deciding authority of the requested state”.

While it must be conceded that the possibility remains that a requested person might be surrendered to another member state on foot of an EAW for the purposes of serving a sentence of imprisonment imposed on them in the teeth of their honestly held belief that they would be better rehabilitated in Ireland, it must be remembered that in Sciuka, a global pandemic was not, in and of itself, sufficient reason to justify postponement of an Order for Surrender.4

As such, and particularly absent anything constituting a secure evidential basis, such as the issuing member state forwarding its judgment to the Minister for Justice, Home Affairs and Migration, it would appear near impossible to envisage a scenario whereby a mere intention on the part of the requested person to engage in the processes laid down by the 2023 Act might justify the postponement of an Order for Surrender under s.18(1)(a) of the Act. This is particularly the case where, as considered in Kairys, the 2008 Framework Decision confers no right upon an applicant to serve a sentence in a country of their choosing. Indeed, as noted by the CJEU at paragraph 66 of the decision in C.J.:

“68. In that regard, the issue by a member state of a European arrest warrant for the purposes of enforcing a custodial sentence is evidence precisely of the fact that that State favours, in principle, enforcement of the sentence on its own territory over the implementation of the mechanism for the recognition and enforcement of judgments in criminal matters provided for by Framework Decision 2008/909, with a view to such enforcement in another member state …”

3. See: Section 18(1)(a) of the EAW Act and Article 23(4) of the Framework Decision, which in fact refers to “serious humanitarian reasons”.

4. See paragraph 13 of the judgment of Hogan J.

This article was the winning essay in the 2025 Sanfey Essay Prize, which is awarded for essays on the topic of construction law.

The Construction Contracts Act 2013 (the Act), which somewhat unusually started life as a private members’ bill, was enacted to address perceived inadequacies in contractual power and the flow of payments in construction projects, where it was contended that the chain of contracts common in construction projects often acted to prevent payments being made to sub-contractors and sub- subcontractors in a timely manner or at all.

Adjudication as a method of alternative dispute resolution was implemented legislatively within the UK in 1998. Ireland started its own journey in adjudication in 2013, promulgating, by way of the Act, a statutory right to refer a payment dispute arising from a construction contract or operations to adjudication. Adjudication has been touted as a speedy and effective mechanism through which these complex disputes may be resolved, with s.6 of the Act requiring an adjudicator to reach a decision within 28 days from the referral. Section 6(1) of the Act creates the right to refer a dispute to adjudication in specified circumstances:

“A party to a construction contract has the right to refer for adjudication in accordance with this section any dispute relating to payment arising under the construction contract (in this Act referred to as a ‘payment dispute’)”.

The Construction Contracts Act 2013 (the Act), which somewhat unusually started life as a private members’ bill, was enacted to address perceived inadequacies in contractual power and the flow of payments in construction projects.

The Act also provides that the decision of the adjudicator is temporarily binding upon the parties unless superseded by an arbitral finding or finding of a court as per s.6(10) and (11) of the Act:

“The decision of the adjudicator shall be binding until the payment dispute is finally settled by the parties or a different decision is reached on the reference of the payment dispute to arbitration or in proceedings initiated in a court in relation to the adjudicator’s decision.

The decision of the adjudicator, if binding, shall be enforceable either by action or, by leave of the High Court, in the same manner as a judgment or order of that Court with the same effect and, where leave is given, judgment may be entered in the terms of the decision”.

The statutory mechanism provided for in the Act has been touted as ‘pay now, argue later’, in circumstances where a finding of an adjudicator, dependent on its content but somewhat inevitably given the scope of the provision, will give rise to an immediate payment obligation. If this payment obligation is not fulfilled by the responsible party, an application can be brought under s.6(11) and pursuant to the rules set out in Order 56B of the Rules of the Superior Courts (RSC) seeking leave of the Court to render the decision enforceable in like manner to an order of the Court or arbitral award.

This mechanism was examined by Mr Justice Simons in Aakon Construction Services Ltd v Pure Fitout Associated Ltd (No. 1) 1 The Court stated, in defining a test for a challenged application under Order 56B:

“In summary, and having regard to the very specific and limited grounds of objection advanced in this case, I am satisfied that the Court – in the exercise of its statutory discretion to grant leave to enforce – is required to consider, first, whether the adjudicator’s decision comes within the terms of the payment dispute as referred; and, secondly, whether fair procedures, and in particular, the right of defence has been respected”.

Eimear Dooley BL

However, it was further stated that proceedings initiated in full challenge of the adjudicator’s decision, as opposed to enforcement proceedings, would give rise to a de novo jurisdiction to allow consideration of the case on its merits. It is therefore possible that a decision of an adjudicator can be enforced by the courts under s.6(11), and then subsequently overturned under s.6(10).

The Court has made clear that in the general scheme of things an application to enforce an adjudicator’s decision pursuant to Order 56 RSC will be granted by the Court. The Court has emphasised that the avenues of challenge available to a party seeking to oppose enforcement – namely, an obvious breach of fair procedures or a want of jurisdiction – are narrow.

McGill Construction Ltd v Blue Whisp Ltd

Prior to the Court judgment in McGill Construction Ltd v Blue Whisp Ltd,2 a circumstance had not arisen where a finding on jurisdiction formed part of the impugned adjudicator’s decision in the s.6(11) proceedings – in essence, a kompetenz-kompetenz query as to the ability of the adjudicator to adjudicate on her own jurisdiction. It is useful to examine the development of this concept in the parallel but distinct mechanism of dispute resolution of arbitration to outline the ambit of the query.

McGill Construction Ltd v Blue Whisp Ltd involved an examination by Mr Justice Simons of jurisdictional challenges arising in the context of an adjudication and subsequent enforcement proceedings.

An application for leave to enforce the decision of the adjudicator pursuant to s.6(11) and Order 56 RSC came before the Court, which the responding party sought to oppose on four grounds: that the notice of intention to refer (to adjudication) was invalid as it referenced more than one payment claim notice; that the referral (as per s.6(5) of the Act) was out of time; that the adjudicator was in breach of fair procedures in deferring a limb of her decision to two further and related adjudications pending before her; and, that the referring party may not be able to repay the adjudicator’s award if the award was subsequently overturned by the courts. It was submitted by the respondent that there was no jurisdiction for the adjudication.

This issue was raised during the course of the adjudication and the adjudicator invited the parties to confer jurisdiction upon her specifically to deal with the preliminary query of whether the notice of intention to refer was valid. The respondent reported to consent to jurisdiction to hear the preliminary issue only; albeit, “without prejudice”3 to its position that the appointment of the adjudicator was invalid, and reserving their right to expand on this point at a further stage.

The adjudicator concluded that the referred dispute was within her jurisdiction as the appointed adjudicator, and she reached a decision in favour of the applicant. Proceedings under s.6(11) by way of enforcement of the

The statutory mechanism provided for in the Act has been touted as ‘pay now, argue later’, in circumstances where a finding of an adjudicator, dependent on its content but somewhat inevitably given the scope of the provision, will give rise to an immediate payment obligation.

adjudicator’s decision issued, and the respondent asserted its reserved position in respect of the adjudicator’s jurisdiction therein.

The matter came in front of Mr Justice Simons for determination. The Court began by restating the essential principles arising in respect of statutory adjudication and its enforcement under Order 56B RSC arising from Aakon Construction (cited above).

Simons J. then considered the competence of the adjudicator to consider her jurisdiction in circumstances where the first ground of opposition contended that the notice of intention to refer, and therefore the entire adjudication process, is invalid. His view was that it was necessary to consider whether the parties had conferred jurisdiction upon the adjudicator. At paragraph 10, he stated:

“It should be explained that the making of the appointment does not, in and of itself, confer jurisdiction upon the nominated adjudicator to embark upon adjudication of the payment dispute. Rather, a further procedural step is required. It is necessary for the referring party to formally refer the payment dispute to the nominated adjudicator”.

This is distinct from the position in arbitral proceedings under Article 16, wherein the existence of the arbitration clause permits the arbitrator to comment on its own jurisdiction, said decision to be binding unless Article 16(3) proceedings are instituted and are successful. At paragraph 16, Simons J. stated:

The Court has made clear that in the general scheme of things an application to enforce an adjudicator’s decision pursuant to Order 56 RSC will be granted by the Court.

adjudicator, then the only recourse for either party to obtain a binding decision is through litigation, which is in this essay’s submission counterintuitive to the principles underlying the Act. The mechanism suggested by Mr Justice Simons addresses this issue but is ultimately reliant on the parties’ mutual consent. Such pragmatism is in the spirit of the Act, but is concurrently uncertain ground for adjudication to tread upon as an attractive method for parties going forward.

The mischief contemplated here is that, in the absence of a statutory provision providing for an equivalent kompetenz-kompetenz doctrine in adjudication, a responding party to an adjudication may seek to game the system by raising jurisdictional challenge(s) and inviting an adjudicator to suspend the adjudication pending the determination of this jurisdictional challenge by the courts (which would offend the statutory time limit set down for the conclusion of an adjudication) and/or to resign his/her appointment.

“The general principle is that an adjudicator does not have jurisdiction to make a binding determination in relation to their own jurisdiction. The jurisdiction of an adjudicator to embark upon an adjudication is contingent on their having been validly appointed. The question of the validity of their appointment is one which, ordinarily, may only be conclusively determined by the courts. Were it otherwise, an adjudicator, who has not been properly appointed, might arrogate a jurisdiction which is not properly theirs”.

Simons J. then noted that this is subject to the exception wherein the parties can by agreement confer jurisdiction on the adjudicator to make this decision:

“A similar concept arises in the context of arbitration agreements. This concept is sometimes referred to as kompetenz-kompetenz, i.e., the conferral of competence upon a decision-maker to make a determination in respect of their own jurisdiction”.

However, there is a distinct difference between arbitration and adjudication: the Arbitration Act 2010 (s.6) adopted the Model Law as having the force of law in the State (the Model Law being the United Nations Commission on International Trade Law (UNCITRAL) text of June 21, 1985, on international commercial arbitration). Article 16 of the Model Law permits an arbitrator to decide on their own jurisdiction, and for the decision itself to be binding, unless and until Article 16(3) proceedings are instituted. In contrast, Simons J. clarifies that a determination in relation to jurisdiction by an adjudicator cannot be binding (unless the parties explicitly confer this jurisdiction by explicit agreement). Otherwise, only the courts can make a decision in relation to the adjudicator’s jurisdiction. This raised the query in relation to the status of adjudication awards where the adjudication giving rise to it has been subject to a jurisdiction objection. If the jurisdiction cannot be determined by the

Arthur Connaughton v Timber Frame Projects Ltd trading as Timber Frame Ireland

The matter of jurisdiction in adjudication under the Act was considered by Mr Justice Simons in Arthur Connaughton v Timber Frame Projects Ltd trading as Timber Frame Ireland (Connaughton)4 in the context of enforcement proceedings taken pursuant to Order 56B RSC.

The construction contract in Connaughton was for the design, supply and erection of a timber frame structure on the site of a dwelling house. At the date of termination of the contract, the works were substantially incomplete. The employer as the referring party purported to terminate the contract for repudiatory breach. It should be noted that the parties’ contract did not provide for any mechanism for payments under the contract pursuant to contractual termination.

The matter was referred to adjudication by the employer, who sought the repayment of monies paid to the contractor as well as compensation for consequential losses, including reliance loss and loss of bargain under the common law doctrine of contractual termination. The employer, having been successful at adjudication, brought enforcement proceedings pursuant to s.6(11) of the Act and Order 56B RSC. A key issue in those proceedings was whether a claim for damages, which is consequent upon the termination of a construction contract for repudiatory breach, could be properly considered a ‘payment dispute’ and, therefore, within the jurisdictional ambit of the Act.

The Court in Connaughton concluded that a claim must be grounded in the contract terms, specifically providing for a payment claim, in order to fall within the jurisdictional tramlines of the Act. The Court examined the statutory construction of s.6(1) of the Act with reference to the principles established in Heather Hill, 5 concluding that the plain meaning of “relating to payment” confines issues that can be referred to adjudication and precludes a broad

interpretation that would allow any claim arising from the contract to be prosecuted by way of statutory adjudication. The Court opined that “payment” was subject to a specific meaning under the Act, where “payment claim means a claim to be paid an amount under the construction contract”. The Court noted that:

“In brief, this section stipulates that a construction contract shall make provision for the amount of, and timing of, each interim payment and the final payment under the construction contract”.

The Court concluded that a claim that gives rise to a right to refer a dispute to statutory adjudication must be a claim for payment that is explicitly grounded in the terms of the construction contract. The reverse thrust of this conclusion is that a claim in damages per se for breach of contract that is not specifically grounded in an explicit term of the construction contract allowing for payment, does not fall within the jurisdiction of a claim that can be brought to statutory adjudication.

Simons J. further developed the principle in tandem with the legislative aims in Tenderbids Ltd T/A Bastion v Electrical Waste Management Ltd, 6 delivered on January 12, 2026. This case concerned a ‘smash and grab’ dispute, wherein the payment claim was predicated on a failure to respond to a payment claim notice delivered by a payee in accordance with the terms of s.4 of the Act. The Court determined that, unlike the equivalent regime in operation in the UK, ‘smash and grab’ default payments are not provided for under the Act. The Court stated at §33:

“The difficulty with the employer’s argument is that it posits that the threshold issue of whether a dispute is amenable to adjudication can only be answered by the making of a final determination on the underlying merits of the dispute. On the employer’s argument, the Court must first determine whether there is a right to a default decision prior to answering the question of whether the dispute can be referred to adjudication. The gateway ensures that the dispute resolution mechanism is kept within its proper bounds. The Act has been designed to address the need for prompt payments in the construction industry. To this end, an adjudicator’s decision is afforded a privileged status: it is capable of enforcement in the same manner as a judgment or order of the High Court”.

References

1. [2021] IEHC 562.

2. [2024] IEHC 205.

3. Ibid, paragraph 21.

4. [2025] IEHC 469.

The Court’s careful outlining of stages to the adjudication process is helpful in determining the manner in which to approach jurisdiction disputes.

The Court went on to reject the employer’s argument as mistakenly conflating subject matter jurisdiction and a merits dispute, where the case in Tenderbids required an evaluation of the facts of the issue. The matter is distinct from a circumstance where there was no jurisdiction to determine the adjudication, wherein the adjudication process is “a nullity”.7 At §39:

“A payment claim may be time-barred, overstated or misconceived; but none of that deprives it of its character, at the threshold stage, as a payment claim”.

The Court’s careful outlining of stages to the adjudication process is helpful in determining the manner in which to approach jurisdiction disputes. Coupled with the availability of Blue Whisp-style consent, concerns of litigation risk (which might be manifest in contested enforcement proceedings) can be assuaged for parties considering adjudication.

The Court has reiterated on several occasions in the case law generated by the operation of s.6(11) of the Act and Order 56B RSC that the law in respect of statutory adjudication in this jurisdiction may only be developed gradually as matters of controversy come before and/or are considered by the Court. The case law providing clarity and certainty in respect of the matter of jurisdiction in statutory adjudication is very welcome to practitioners and parties seeking to avail of the unique efficiency inherent in adjudication under the Act. As a relevant tangent, it is posited that this certainty will also empower and facilitate adjudicators in dealing with jurisdictional challenges in a manner that will give effect to the purposes of the Act.

5. Heather Hill Management Company v An Bord Pleanála [2022] 2 ILRM 313; see paragraph 13 of Connaughton.

6. [2026] IEHC 5.

7. §35-36.

CALLING TIME:

INTERIM PROTECTION ORDERS,

DELAY, AND PROCEDURAL

FAIRNESS

The repeated extension of protection orders without determination runs the risk of upsetting the balance between protection and fairness that underpins their design.

Peter Paul Hughes BL

Section 10 of the Domestic Violence Act 2018 (the 2018 Act) provides for the making of a protection order as a short-term, emergency civil remedy.1 Its purpose is both clear and necessary: to afford immediate protection to an applicant where the Court is satisfied that there is an urgent risk, pending the determination of a substantive application for a safety order or barring order. By design, the protection order is ex parte, provisional, and temporary. It is, in conceptual terms, a holding measure, one that preserves safety without purporting to resolve the underlying dispute.

Its purpose is both clear and necessary: to afford immediate protection to an applicant where the Court is satisfied that there is an urgent risk, pending the determination of a substantive application for a safety order or barring order.

However, the lived reality of practice in the District Court has begun to diverge from that conceptual framework in a manner that is both subtle and significant. Practitioners will be familiar with the increasing frequency with which protection orders remain in force for extended periods, often spanning many months and, in some instances, exceeding a year, without the substantive application being determined. What is formally

temporary may, in practice, become the dominant legal framework governing the relationship between the parties. The interim order, rather than acting as a bridge to adjudication, begins to operate as the central organising feature of the dispute.

This article does not seek to question the necessity of protection orders, nor to diminish their importance in safeguarding individuals at risk. Rather, it examines the procedural and constitutional implications that arise when a mechanism expressly designed to operate on an interim basis begins, through the operation of delay and repetition, to assume a quasi-permanent function. The issue is not one of misuse, but of duration and effect.

Time, in this context, is not neutral. Interim measures derive their legitimacy not only from urgency, but from limitation. Where limitation falls away, the nature of the measure may shift. The central concern, therefore, is whether the practical operation of s.10 continues to reflect the balance between protection and fairness that underpins its design, or whether that balance is at risk of being altered by systemic delay.

The conceptual nature of interim relief

Interim relief occupies a distinctive and carefully circumscribed position within the legal system. It is neither final nor determinative; rather, it exists to regulate risk pending adjudication. Its legitimacy is grounded in necessity, but equally in restraint. The law tolerates departure from full procedural fairness only on the basis that such departure is temporary and proportionate, and that it will be followed by an opportunity for full engagement between the parties.

This dual foundation, urgency and limitation, is essential to the coherence of interim measures. Urgency justifies intervention without prior notice; limitation ensures that such intervention does not become a substitute for adjudication. If either element is compromised, the nature of the relief itself begins to change. What was intended as provisional may, over time, assume characteristics of finality, not through formal determination, but through practical effect.

Protection orders under s.10 must be understood within this framework. They are designed to respond to immediate risk and to provide a stabilising mechanism pending further hearing. Their legitimacy lies not in their duration, but in their temporary nature. It is the expectation of early reconsideration that anchors their constitutional and procedural acceptability.

Where that expectation is not fulfilled, a difficulty arises. The order remains formally interim, but its operation may begin to extend beyond what is conceptually justified. The longer the order persists without adversarial testing, the more difficult it becomes to maintain the distinction between interim regulation and substantive outcome. The shift is gradual, but its implications are significant.

The lived reality of practice in the District Court has begun to diverge from that conceptual framework in a manner that is both subtle and significant.

Section 10 in practice – drift rather than design

The structure of s.10 is deliberately open textured. It confers a broad discretion on the Court, reflecting the need for flexibility in circumstances of urgency. However, the exercise of that discretion does not occur in isolation; it is shaped by the practical realities of the court system in which it operates.

District Court lists are frequently congested, and family law proceedings often involve a multiplicity of interrelated issues. Applications for safety orders may be adjourned for reasons entirely unrelated to their merits, including the availability of legal representation, the need for further evidence, or the coordination of parallel proceedings. In such circumstances, the continuation of a protection order becomes a practical necessity, ensuring that some form of protection remains in place pending determination.

Yet, when viewed cumulatively, these adjournments may produce an outcome that was not intended by the statutory scheme. The interim phase becomes extended, not by design, but by default. The protection order, rather than functioning as a bridge to determination, becomes the operative framework governing the conduct of the parties over an extended period.

This phenomenon is not attributable to any individual decision. It arises from systemic conditions that affect the operation of the Court as a whole. However, its effect is to alter the practical significance of the order. What was intended as a temporary safeguard may, over time, come to define the reality of the dispute. The interim, in effect, becomes the environment within which the parties live and interact.

Ex parte relief and the limits of justification

The grant of ex parte relief represents a significant departure from the fundamental principle that both parties should be heard before a decision affecting their rights is made. This departure is justified by necessity, but it is also subject to inherent limits. The absence of the respondent from the initial hearing is tolerated only because it is understood to be temporary and because it is accompanied by safeguards designed to mitigate its effects.

The structure of s.10 is deliberately open textured. It confers a broad discretion on the Court, reflecting the need for flexibility in circumstances of urgency.

The safeguards traditionally associated with ex parte relief are well established. The applicant is under a duty of full and frank disclosure, ensuring that the Court is apprised of all relevant matters, including those that may be adverse to the application. In addition, there is an expectation that the matter will be revisited at an early inter partes hearing, at which the respondent will have an opportunity to challenge the evidence and present their own account. Where the opportunity for inter partes engagement is delayed, the justification for the initial departure from audi alteram partem becomes increasingly difficult to sustain. The respondent remains subject to restrictions imposed in their absence, without having had the opportunity to test the basis upon which those restrictions were imposed. Over time, this raises a question not of initial validity, but of continued justification. The longer the order remains untested, the more its operation may begin to strain the principles upon which it was granted.

The interaction with criminal law – section 33

The position is further complicated by the interaction between s.10 and s.33 of the 2018 Act. Breach of a protection order constitutes a criminal offence, regardless of whether the underlying civil application has been determined.¹ This introduces a layer of consequence that extends beyond the civil sphere and into the realm of criminal liability.

A respondent may therefore be exposed to criminal proceedings on the basis of an order that has not been subject to adversarial testing. While the criminal court is concerned with whether a breach has occurred, the existence of the underlying order inevitably forms part of the broader context in which those proceedings take place. The interim order, though civil in nature, becomes the foundation upon which criminal liability may arise.

This interaction creates a structural tension. The order is interim and provisional in form, but carries immediate and enforceable consequences of a serious nature. Where such an order remains in place for an extended period, the distinction between interim precaution and substantive regulation becomes increasingly attenuated. The longer the order persists, the more embedded its effects become, both in practical and legal terms.

The practical effects of prolonged interim regulation

The consequences of prolonged interim orders are not confined to legal classification. They are experienced in the lived reality of the parties. Patterns of communication, proximity, and conduct become structured around the terms of the order. Behaviour adapts accordingly, often in ways that extend beyond the immediate purpose of the order itself.

Over time, these patterns may become normalised. What began as a temporary restriction may come to be experienced as a settled condition. The absence of contact, the regulation of movement, and the imposition of boundaries may become embedded features of daily life. This has implications for the eventual determination of the dispute, as the Court must assess the matter against a background that has already been shaped by the interim arrangement.

In this sense, delay is not merely procedural. It plays an active role in shaping the context in which justice is administered. The interim order, while not formally determinative, may become functionally influential, affecting expectations, perceptions of reasonableness, and the practical realities to which any final order must respond.

Temporal proportionality and the passage of time

Proportionality is a central organising principle in the law of interim relief. However, it is not a static concept. It must be assessed in light of all relevant circumstances, including duration. A measure that is proportionate at the point of its making may require reassessment as time passes and its effects accumulate. This introduces the concept of temporal proportionality. The justification for an interim measure is not fixed; it must be sustained over time. The longer the measure remains in place, the greater the need for ongoing justification. The impact of the measure cannot be assessed solely by reference to its initial purpose, but must also take account of its duration and cumulative effect.

In the context of protection orders, this issue is particularly acute. Restrictions on communication and proximity, while justified in the short term, may become more burdensome when extended over months or years. Yet, in practice, the continuation of such orders may occur without explicit reconsideration of this temporal dimension. The order continues, but the justification for its continued operation may not always be examined with the same level of scrutiny as its initial grant.

Fair procedures and constitutional balance

The constitutional guarantee of fair procedures, as articulated in Re Haughey, 2 encompasses the right to be heard and to challenge adverse evidence. While these rights may be modified in circumstances of urgency, they are not extinguished. Their temporary suspension must be accompanied by a timely opportunity for engagement.

Where such engagement is delayed, the balance between urgency and fairness begins to shift. The longer a party remains subject to restrictions without the opportunity to contest them, the more acute the procedural concern becomes. What may be justified at the outset as a necessary response to risk may, over time, require closer scrutiny.

Article 40.3 of the Constitution protects personal rights, including aspects of autonomy and dignity. Protection orders, while protective in purpose, may nonetheless engage these rights in a meaningful way. Where restrictions persist without adversarial testing, questions may arise as to whether the balance struck remains proportionate in light of the duration of the order.

Case law and procedural balance

Although there is limited authority directly addressing prolonged protection orders, broader principles can be drawn from the jurisprudence on interim relief. In Okunade v Minister for Justice, 3 the Supreme Court emphasised the need to balance competing interests when granting interim relief. The broader principle is strongly grounded in Supreme Court, Court of Appeal, and High Court case law that interim measures are intended to preserve matters pending trial, not to predetermine substantive rights.

These principles are consistent with the approach in Campus Oil, 4 where interim relief was granted to preserve the status quo, not to resolve the dispute. The integrity of that distinction depends upon the availability of timely adjudication. Where an interim measure remains in place for an extended period without progression to hearing, there is a risk that it ceases to preserve the status quo and instead creates a new one.

Procedural silence and systemic consequence

Section 10 is notable for what it does not provide. Unlike other interim measures within the 2018 Act, it does not prescribe a timeframe for the hearing of the substantive application. This absence reflects a legislative preference for flexibility, but it also has consequences. In the absence of structured temporal guidance, the progression of cases becomes dependent on system capacity. While each adjournment may be justified, the cumulative effect may be significant. Duration becomes shaped more by circumstance than by principle, and the interim phase may extend beyond what was originally envisaged.

A legislative and comparative perspective

The contrast with interim barring orders is instructive. The 2018 Act requires that such applications be heard within a short timeframe, reflecting their intrusive nature and the need for early adjudication. This demonstrates that the legislature has, in certain contexts, recognised the importance of temporal discipline.

Although there is limited authority directly addressing prolonged protection orders, broader principles can be drawn from the jurisprudence on interim relief.

In England and Wales, non-molestation orders granted without notice are typically subject to early return dates.5 This ensures that the respondent has a prompt opportunity to be heard and reinforces the temporary nature of the order. While delays occur in all systems, the procedural design in such jurisdictions emphasises early reconsideration, thereby maintaining the connection between interim relief and substantive adjudication.

The risk of normalisation through interim orders

A further dimension arises from the risk of normalisation. Interim orders are, by their nature, intended to operate as temporary departures from ordinary interaction. However, where such orders remain in place over extended periods, there is a risk that what was exceptional becomes routine. This process of normalisation is subtle but significant. The absence of contact, the restriction on communication, and the behavioural boundaries imposed by the order may, over time, come to be regarded as the default position. The interim arrangement begins to acquire a degree of stability that was never intended.

This has implications for both the parties and the Court. Expectations may shift, and the factual context within which the substantive application is determined may be shaped by the interim reality. In that sense, the interim risks becoming indistinguishable from the intended final position.

Evidential consequences of delay

Delay may also have significant evidential consequences. The passage of time can affect the availability and reliability of evidence. Recollection may fade, and the immediacy of events may be lost. The Court is required to assess allegations at a temporal remove from the circumstances in which they arose. At the same time, the existence of the interim order may itself influence the evidential landscape. The fact that an order has been in place for an extended period may, consciously or otherwise, affect perceptions of risk or credibility. While courts approach such matters with care, the complexity of the evidential context is increased by delay.

Interim orders are, by their nature, intended to operate as temporary departures from ordinary interaction.

However, where such orders remain in place over extended periods, there is a risk that what was exceptional becomes routine.

The practitioner’s perspective – managing interim reality

From a practitioner’s perspective, prolonged interim orders present distinct challenges. Advising clients in circumstances where an interim measure has been in place for an extended period requires careful navigation. For respondents, the absence of a clear timeline for resolution may give rise to uncertainty and frustration. For applicants, the absence of final determination may prolong uncertainty, notwithstanding the existence of protection. Practitioners must therefore operate within a framework where the interim has become extended, balancing the need for progression with the realities of the system.

Towards procedural clarity – the role of practice and guidance

The issues identified do not necessarily require legislative amendment. Rather, they suggest the value of procedural clarity and guidance. Practice directions, listing priorities, and judicial case management may assist in promoting more consistent approaches to progression. Such measures need not impose rigid timelines, but may reinforce the expectation that interim measures remain temporary. The objective is not to constrain discretion, but to support it within a clearer procedural framework.

The risk of procedural inversion

A final consideration arises from what might be described as procedural inversion. Interim measures are intended to precede and facilitate adjudication. Their function is to preserve stability pending determination, not to substitute for it. However, where interim orders remain in place for extended periods without substantive hearing, there is a risk that this sequence is, in effect, reversed.

In such circumstances, the interim order becomes the primary operative reality, while the substantive hearing assumes a secondary position. The lived experience of the parties is shaped not by adjudication, but by the interim arrangement. The order, though formally provisional, begins to operate as the central mechanism through which the dispute is regulated. This inversion has implications for the integrity of the adjudicative process.

A court determining the substantive application does so against a background already structured by the interim order. Patterns of behaviour may have settled, expectations may have adjusted, and the context within which the dispute is assessed may have been materially influenced by time. Reasserting the proper sequence – interim relief followed by timely adjudication – is therefore not merely a matter of efficiency, but of principle. It ensures that the temporary remains temporary, and that the ultimate determination of rights occurs within the framework intended by law.

Conclusion – calling time, carefully

Protection orders are an essential component of the legal framework governing domestic violence. They provide immediate and necessary protection in circumstances of risk. However, where such orders are repeatedly extended without determination, they may assume a role that they were not designed to fulfil. The issue is not one of misuse, but of duration and effect.

Calling time, in this context, does not involve any retreat from the protective purpose of the legislation. Rather, it reflects the need to ensure that interim measures remain true to their nature. The question is not whether protection orders should exist – they must – but whether the temporary is being required to do more, and for longer, than intended.

References

1. Domestic Violence Act 2018, ss10 and 33.

2. Re Haughey [1971] I.R. 217 (SC).

3. Okunade v Minister for Justice, October 16, 2012 [2012] IESC49, [2012] 3 I.R. 152, [2013] 1 ILRM 1.

4. Campus Oil v Minister for Industry and Energy [1983] IESC 2.

5. Family Law Act 1996 (UK).

THE INHERENT

RIGHTS OF NATURE

An innovative piece of Spanish legislation could inspire a new approach to environmental law.

If, someday, you were to take the road from Murcía and venture south east, in a while, you will come over the hill and find below you the vast basin of the Mar Menor.

The Mar Menor (the minor sea) (the Mar) is a huge saltwater lagoon separated from the Mediterranean by the spidery barrier of La Manga. At least, spidery is how La Manga looks on the map. It’s this barrier of La Manga that gives the Mar its unique ecosystem. There are five entrance channels through La Manga to the Mar from the Mediterranean, only one of which is natural. On La Manga, there is room for some streets and clustered apartment blocks, each one of which, however, strikes a discordant note with the other. Originally, the land in the basin mostly had cereals, olive and almond trees, and was divided into small, family-owned farms. The agriculture suited the place and the amount of water available.

Developments

In the early 1970s, water was diverted onto the basin of the Mar from the river Tagus and everything changed. It became possible to grow vegetables and fruit, and to harvest them three, four, or even five times a year. Farms were sold or rented to corporations. The land was heavily artificially fertilised and the prolonged oppression of nitrates and phosphates began. Together with this, as part of the tourist boom, huge development was taking place around the shores of the Mar including La Manga, and brought with it the gift of human effluent. Algae didn’t flourish until one of the entrance channels to the Mar was widened and, with the accumulation of nitrates and phosphates, one in particular flourished – Caulerpa prolifera – which covered the lagoon in a few years, producing a huge alteration in the ecosystem.

Turlough O’Donnell SC

A campaign developed to save the Mar Menor, helped by a provision in the Spanish Constitution, which in effect provides that with 500,000 signatures a law may be proposed by the people.

The campaign was successful. Over 638,000 signatures were collected (during Covid) and a bill was duly presented to Parliament, which passed with almost all-party support (except for the extreme rightwing party, Vox) and is now Law 19/2022 of the Spanish Parliament (the Law). This law granted “legal personality” to the Mar, which became a “subject” of the law.

Landmark law

Law 19/2022 establishes a landmark precedent in Europe by recognising an ecosystem as a rightsbearing legal entity and affirming the capacity of citizens to participate directly in its defence.1

The Mar is given four principal, protective rights: she is to be protected, preserved, maintained or, where relevant, restored. Therefore, the Mar has the right to live and grow. Three bodies are set up to be guardians of the Mar and to deliver for her. They are:

■ the Committee of Representatives (which proposes actions for the Mar in consultation with the other bodies);

■ the Monitoring Commission (which monitors the

Mar and the Act’s implementation, and disseminates information taking into account the reports of the Scientific Committee); and,

■ the Scientific Committee, which consists of scientists and experts who must be independent, with recognised scientific prestige, and work unpaid – this Committee advises the Representative Committee and the Monitoring Committee.

A need for dialogue

My purpose in writing this is not just to suggest new laws, but immediate dialogue as well, leading to a profound change of approach to nature and, more importantly, leading to action.

It is not the purpose of this article to discuss how we might create law that would give legal personality to a lake, forest or river via our common law system. That would have to be done by statute. Already the capacity exists to create national parks, trusts, or corporate entities where land, for example, is vested, but these methods, while protecting valuable natural resources, do not achieve the impact of Law 19/2022, which is to recognise the inherent rights of nature.

The real benefit of the thinking evident in the Act and its preamble is in its contribution to legal thought, in the dialogue it opens up with the common law, and in its capacity to influence the common law.

Reference

1. Symons, A. Spain makes history by giving personhood status to salt-water lagoon, thanks to 600,000 citizens. Euronews.com. Published September 22, 2022.

Available from:

https://www.euronews.com/2022/09/22/spaingives-personhood-status-to-mar-menor-salt-water-lag oon-in-european-first