The Gazette 1992

GAZETTE

JULY/AUGUST 1992

Similarly in C.W. Shipping Co. Ltd. - v- Limerick Harbour Commissioners (1989), if the matter had fallen for decision on the failure to give reasons point, it would have been referred back to the respondent for further consideration. 51 In Anheuser Busch Inc. -v- The Controller of Patents, Designs and Trade Marks (1987), mandamus was granted to the applicant directing the respondent to state in writing the grounds of his decision. The Court, therefore, has a number of options open to it where it finds that a decision has not been explained or adequately explained. Even where it quashes the decision in question, since the adoption of the 1986 Rules of the Superior Courts, it may remit the matter back to the deciding tribunal with a direction to reconsider it and reach a decision in accordance with the findings of the court, by virtue of 0.84 r.26 (4). Where reasons are inadequate or where some, but not all, of the stated reasons are " b a d" in law the consequences are less clear. There is a line of British authority characterising a failure to give adequate reasons as an error of law per se, thus leading to the quashing of the decisions concerned, see Alexander Machinery (Dudley) Ltd. - v- Cabtree (1974). 53 A contrary view is that inadequacy of reasoning will invalidate the decision concerned if, and only if, the inadequacy manifests such an error of law; a view finding powerful expression in R. -v- Immigration Appeal Tribunal ex parte Khan (1983). 54 Such an error of law will be manifested where, for example, the given reasons are so inadequate or threadbare as to suggest that the decision was irrational or where they make clear that a tribunal has considered an entirely irrelevant factor or suggest that a relevant factor has been ignored by it. The decision and reasoning of Barron J in State (Daly) -v- The Minister for Agriculture (1987) is closer to the second view, inferring as it does a lack of good reason from the Minister's silence and quashing his decision on that ground. The Supreme Court decision in Creedon

number of listed buildings. The Secretary of State was obliged to give "reasons" for his decisions in terms almost identical to the equivalent Irish provisions and he purported to do so in a decision letter which incorporated the Inspector's report and set out the Secretary's own thinking in some detail, going on to grant the planning permission sought and imposing a number of conditions on the grant. The reasons given were challenged as being inadequate and it was argued that the decision was thereby invalidated. Having cited the Judgment of Megaw j in Re Poyser and Mills Arbitration (1964) and the three criteria set out therein - that reasons be proper, intelligible and adequate - Lord Bridge ( delivering the leading judgment) refused to proffer a general statement of the degree of particularity required by an obligation to give reasons. He went on to reject any attempt to set an abstract standard of adequacy by the Court: "The alleged deficiency will only afford a ground for quashing the decison if the court is satisfied that the interests of the applicant have been substantially prejudiced by it.... the adequacy of reasons is not to be judged by reference to some abstract standard. There are in truth not two separate questions: (1) were the reasons adequate? (2) if not, were the interests of the applicant substantially prejudiced thereby? The single indivisible question, in my opinion, which the Court must ask itself whenever a planning decision is challenged on the ground of a failure to give reasons, is whether the interests of the applicant have been substantially prejudiced by the deficiency of the reasons given". 49 The burden was on the applicant to establish such prejudice whether by establishing that the stated reasons did not disclose how a necessary issue of law was resolved or how a disputed issue of fact was decided. In general, continued Lord Bridge: "It is for the applicant to satisfy the Court that the lacuna in the stated reasons is such as to raise a substantial doubt as to whether the decision was based on relevant grounds and was otherwise free from any flaw in the decision making

process which would afford a ground for quashing the decision".

In the event, the House unanimously held that the Secretary of State had adequately explained his decision, though only after examining his decision letter in great detail and closely comparing and contrasting it with the inspector's report, scrutiny notably absent from the Supreme Court's decision in O'Keefe where the inspector had recommended against the granting of planning

permission for an equally controversial development.

Reasons under review

Once an obligation to give reasons is recognised in respect of any given decision - whether derived from statute or from the common law - what will be the consequences of a failure to comply or to comply adequately with that obligation? Where no reasons are given, the decision cannot stand as given. Such a complete failure to give reasons led in The State (Creedon) -v- The Criminal Injuries Compensation Tribunal (1988) and State (Daly) -v- The Minister for Agriculture (1987) to the challenged decisions being quashed. In contrast, in International Fishing Vessels Ltd -v- The Minister for the Marine (1989) Blayney J, though clearly of the opinion that he had jurisdiction to quash the respondent's decision for refusal to give reasons, instead gave a declaration to the effect that the Minister was obliged to give his reasons. This, Blayney J held, was in the circumstances a better alternative: is prepared to give his reasons if directed by the Court to do so. If I were to quash the existing decision, the practical result would be that the Minister would have to consider the application again and would no doubt once more refuse to grant the licences, this time giving reasons for his decision, and if the applicant wished to attack that decision, new proceedings would be necessary." 50 "particularly as the Minister has indicated through his Counsel that he

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