New Appeal: Did the Superior Court Rules Committee act ultra vires in restricting time to apply for certiorari?

In this determination, O’S v Residential Institutions Redress Board & Ors, the Supreme Court granted O’S an extension of time to apply for leave and granted leave for a leapfrog appeal direct from the High Court. The two questions for appeal are:

1. Can a change in jurisprudence on s 8(2) of the Residential Institutions Redress Act 2002 (extending time to apply for redress) be grounds for an extension of time for leave to appeal?

2. Did the Superior Court Rules Committee act ultra vires, creating an impermissible restriction on the right of access to the Courts, by restricting the High Court’s discretion to extend time to apply for certiorari under Order 84 Rule 21(3)(b)(i) and (ii)?

 

Background

In 2008, O’S made an application to the Redress Board for treatment he received in an industrial school. Under s 8(1) of the 2002 Act, the statutory period to apply for redress expired in 2005. In 2012, the Board refused O’S’s application for an extension of time under s 8(2) of the 2002 Act. In 2014, O’S requested a consideration of that decision. Later that year, the Board replied that it had exhausted its statutory function. In 2015, O’S requested that the Board reconsider its decision in light of a Supreme Court decision on the Board’s overly narrow interpretation of s 8(2) of the 2002 Act.

In 2016, O’S applied to the High Court for judicial review of the Board’s 2012 decision to refuse an extension of time. In that application, O’S also sought a declaration against the Superior Courts Rules Committee and the Minister for Justice that Order 84 Rule 21(3)(b)(i) and (ii) are an impermissible restriction on the right of access to the Courts.

Order 84 Rule 21 states:

 

Notwithstanding sub-rule (1), the Court may, on an application for that purpose, extend the period within which an application for leave to apply for judicial review may be made, but the Court shall only extend such period if it is satisfied that:—
(3) (a) there is good and sufficient reason for doing so, and
(b) the circumstances that resulted in the failure to make the application for leave within the period mentioned in sub-rule (1) either—
(i) were outside the control of, or
(ii) could not reasonably have been anticipated by the applicant for such extension.
In 2017, the High Court (McDermott J) dismissed O’S’s application. O’S applied to the Supreme Court for leave for a leapfrog appeal.
Supreme Court
As there are ten similar cases which stand adjourned before the High Court, and as Order 84 has general application, the Court determined that O’S had met the constitutional requirement that an appeal raises a legal issue of general importance. And as the Redress Board is required to be dissolved once this case is finalised (plus the ten similar cases), and as an appeal to the Court of Appeal will not narrow the issues to be resolved, the case met the constitutional requirement of presenting exceptional circumstances warranting a leapfrog appeal from the High Court.
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New Appeal: Does the duty to make full disclosure when seeking leave for judicial review continue to have force as a legal principle?

In this determination, Shatter v Guerin, the Supreme Court granted Guerin leave to appeal the judgment of the Court of Appeal that he, Mr Seán Guerin SC, breached the then Minister Shatter’s right to fair procedure in the compilation of a report into handling of “allegations of grave deficiencies in the investigation and prosecution of crimes, in the County of Cavan and elsewhere, made by Sergeant Maurice McCabe”.

 

Background

In February 2014 the Government appointed Guerin to examine the handling of complaints by the Garda authorities and other public bodies, including the Department of Justice and Equality, of which Shatter was the minister. In May that year Guerin presented his report to the Taoiseach.

The report stated:

It is important to emphasise before embarking upon the review of individual incidents, that it is understood that the purpose of this review is not to make findings of fact or to determine any disputed question either of fact or law. Insofar as any views are expressed on factual matters, these are only facts as they appear from a review of the files that I have received. Any such expression is not an adjudication on any matter affecting the persons named or referred to in this report. It is possible that, with the benefit of an opportunity to interview or hear evidence from the individual members and officers of An Garda Síochána and civilians, including victims of crime, involved in these matters, a different view of the facts would emerge.

 

Later in the report, Guerin was critical of Shatter’s handling of Sergeant McCabe’s complaints.

On reading the report, the Taoiseach informed Shatter that he could no longer express confidence in him as minister. Shatter resigned.

In the High Court, Shatter instigated judicial review proceedings seeking any order of certiorari quashing Guerin’s findings relating to Shatter. One of Shatter’s grounds was a reasonable apprehension of bias: that Guerin “was a member of Professional Practice Committee which engaged in criticism of the applicant as Minister in respect of the Legal Services (Regulation) Bill 2011, which bill the applicant [Shatter] was centrally involved in promoting through the legislature”.

Dismissing Shatter’s application, Noonan J (here) stated:

158. It is clear from the evidence that the principle focus of these proceedings following their commencement was an attempt by the applicant to prevent the Commission investigating his role in relation to Sergeant McCabe’s complaints. That is now a fait accompli yet the applicant still seeks to curtail the statutory investigation by undermining the conclusions on which he says it is based. In that respect, I am of the view that the applicant seeks to mount a collateral attack on the Commission where a conscious decision was made not to join either the Commission or the Government in these proceedings. That cannot be permitted. It is a matter that goes to discretion as does the totally unwarranted allegation of bias publicly made against the respondent at the ex parte stage. Thus, even in the absence of the foregoing conclusions, I would exercise my discretion against granting relief.

 

The Court of Appeal agreed with the High Court’s finding that Shatter’s allegation of bias was unacceptable behaviour. But it allowed Shatter’s appeal (here, Ryan P) and upheld his complaint, stating:

103. My view, in summary, is that the appellant has established that he was a person whose constitutional rights were in jeopardy by reason of the conclusions that Mr. Guerin was proposing to include in his report, that the author was obliged to observe the rules of natural justice and in particular audi alteram partem, that there was in the circumstances breach of those rights because of the defective procedure that was adopted and that he is entitled to a declaration accordingly. I would therefore allow the appeal.

 

Supreme Court

Granting Guerin leave to appeal, the Supreme Court determined that he raised a point of law of public importance and that an appeal is in the public interest. The Court certified three questions:

a. Whether Mr. Shatter’s claim is justiciable in the circumstances in which and/or at the point in time at which, it was initiated.

b. The applicability and scope of fair procedures and constitutional issues to a task of the kind undertaken by Mr. Guerin, and the nature of requirements imposed thereby. Whether or not the judicial review amounted to a collateral attack on the decision to establish a Commission of Investigation, and, in particular, an attempt to have Mr. Shatter excluded from the Terms of Reference of such Commission.

c. Whether or not the duty to make full disclosure when seeking leave for judicial review continues to have force as a legal principle, and if so was it breached in this case by the allegation of bias against Mr Guerin.

YY v Minister for Justice & Equality: Supreme Court will review Minister’s decision to deport convicted terrorist

In this determination (YY v Minister for Justice & Equality), the Supreme Court granted YY leave for a leapfrog appeal from the High Court decision to allow his deportation to proceed, due to the exceptional circumstances of the case. YY was previously imprisoned for planning terrorist actsincluding in Ireland. But, if deported to his home state, he faces the risk of treatment contrary to Article 3 of the European Convention on Human Rights (prohibition of torture).

 

Background

YY is a native of “Country X”, which sentenced him, in his absence, to three life sentences and two death sentences for serious terrorist offences. In 1997, YY arrived in Ireland and applied for asylum under a false name. The Refugee Appeal Tribunal (RAT) granted him refugee status and travel documents.

In 2005, a French court sentenced YY to eight years imprisonment for preparing terrorist acts in Ireland, England, France, Spain and Andorra. France also refused to grant him refugee status. In light of this, the State revoked YY’s refugee status in 2011.

YY re-entered Ireland and applied again for refugee status or subsidiary protection. The Commissioner refused. On appeal, the RAT stated that “there was a personal, present, foreseeable and substantial risk of serious harm by the [Country X] authorities”, but rejected YY’s appeal on grounds of his offending behaviour.

In a 2009 case, the ECtHR prohibited the deportation of a Country X citizen on grounds that there was a real risk that that state’s authorities would breach his Article 3 rights. But, ordering YY’s deportation, the Minister cited up to date material showing that conditions in Country X have evolved.

In he High Court, Humphries J (here) held that that decision was within the range reasonably open to the Minister. Humphries dismissed YY’s judicial review challenge and refused to certify an appeal to the Court of Appeal.

YY applied to the Supreme Court for leave for a leapfrog appeal.

The Court determined that this case did raise issues of general interest and that the High Court refusal of an appeal to the CoA provided the exceptional circumstances to meet the constitutional threshold for a leapfrog appeal.

The Court approved the following questions for appeal:

(i) Where a Minister orders deportation of an individual and relies on country of origin material which is generally available to conclude that return of an applicant to a country would not be a breach of s.5 of the Refugee Act 1996, and/or that there are no substantial grounds for considering that there is a real risk that the applicant will be subjected to treatment contrary to Article 3 of the Convention, is the Minister required to notify the applicant of the said material and invite submissions upon it?;

(ii) If the Minister is under such an obligation, is it satisfied, or otherwise affected, by the fact that an applicant was provided with the reasons for the making of a deportation order, including the reference to the said material, and is entitled to apply for a revocation of that order (and did so)?;

(iii) Given that in comparable cases the ECtHR or other reputable national immigration authorities, or in the particular case, the Refugee Appeals Tribunal, have made findings that there is a real risk on substantial grounds, if a person in a comparable circumstance or the applicant in this case are returned to Country X that they will suffer a treatment which is a breach of Article 3 of the Convention, did the reasons provided by the Minister for (i) making the deportation order under s.3(1) and (ii), refusing to revoke the deportation order under s.3(11) of the 1999 Act, provide a sufficient lawful basis for the said decision?

New Appeal: Court grants “interests of justice” appeal from a High Court decision

In this determination (FG v The Child and Family Agency), the Supreme Court granted FG leave to appeal directly from the High Court, as the Court determined that the constitutional interests at stake and the interests of justice raised in the case met the constitutional threshold for an appeal. (This may be the first such appeal since the 33rd Amendment).

 

Background

The preliminary proceedings which led to this appeal are complex. In October 2014, the District Court placed FG’s three children in the CFA’s care and ordered that the CFA will determine FG’s access to her children. In February 2015, the Circuit Court rejected an appeal to those orders. The CFA decided to allow FG supervised access for a brief period on Christmas Day, Easter and on each child’s birthday.

In July 2015, FG applied for judicial review of the Circuit Court decision. By this stage she was representing herself. The High Court, Noonan J, dismissed that application, as it was not within the time period allowed for a judicial review application. FG did not apply to the court for an extension of time.

In January 2016, FG applied again to the High Court for judicial review. She informed the court that her solicitor and barrister had advised her, at the time of the Circuit Court decision, that she had six months to seek judicial review of the decision. Humphreys J adjourned the proceedings to allow FG to notify the CFA of the application and to apply again to the CFA for increased access.

In February 2016, the CFA notified FG by letter of its decision not to increase her access to her children.

At the adjourned date, Humphreys J granted FG an extension of time to appeal the care orders and leave to appeal the 2016 letter refusing increased access. Humphreys held that, as FG did not apply to Noonan J to extend the time for an application, it was open to him to grant an extension. And as FG was introducing new evidence (legal advice on time) and seeking other reliefs (review of letter) it was open to him to grant leave for a full hearing of the issues.

Humphreys held that FG had raised an arguable case that the Circuit Court order leaving access entirely at the CFA’s discretion was unlawful and that the 2016 letter was amenable to judicial review.

Humphreys also held that his decision on the extension of time was a final order which could not be challenged. The CFA appealed that decision to the Court of Appeal. The CoA allowed that appeal and amended Humphreys’ order so that all issues could be argued at trial.

The Court’s determination outlines the issues raised at the full hearing:

  1. It is clear from the judgment that counsel for the CFA made submissions on a broad range of issues, including an assertion that where a care order is in place, the court has no further function in regulating access. At the same time it was argued that the letter of the 27th February was not amenable to judicial review, and that the applicant had failed to exhaust her remedies in that she had not availed of the right to apply in the District Court for a variation of the care orders or variation of access. It was also argued that, having regard to the ruling of Noonan J. in refusing leave, the matter was res judicata and/or an abuse of process.

  1. In dismissing the application, Heneghan J. ruled that the applicant had not utilised the provisions of the Childcare Act which permit the District Court to review access. She agreed with the submission that the refusal to extend the access arrangement conveyed by the letter of the 27th February, 2016, did not constitute a decision amenable to judicial review. She also accepted the res judicata argument and held that the decision of Noonan J. was final.

 

The Supreme Court determined that the case met the constitutional threshold for an appeal under the interests of justice provision introduced under the 33rd Amendment to the Constitution. The issues certified are:

  1. whether Humphreys J was entitled to grant an extension of time and leave to seek judicial review, or whether the refusal by Noonan J to grant leave to seek judicial review rendered the matters raised by the applicant res judicata;
  2.  whether the letter of the 27th February, 2016, contained a decision amenable to judicial review; and,
  3. whether this Court should remit the matter for full hearing on the substantive issues identified by Humphreys J [FG had raised an arguable case that the Circuit Court order leaving access entirely at the CFA’s discretion was unlawful and that the 2016 letter was amenable to judicial review].

 

ED (Education) v Refugee Appeals Tribunal: Complete denial of education is persecution, but …

In this case, the Supreme Court held that “a complete denial of education” could constitute persecution for the purposes of s 2 of the Refugee Act 1996. However (here), Clarke J, writing for the five justices, allowed the State’s appeal against the High Court judgment by Hogan J (ED v The Refugee Appeals Tribunal [2011] 3 IR 736) that the Refugee Appeals Tribunal (RAT) “erred in law in its construction of what constitutes persecution” in the circumstances of this case.

In the High Court, Hogan J allowed ED’s appeal against the RAT’s refusal to grant refugee status. Hogan J held that as the RAT had found that there was a real risk that ED (a minor) would not receive even a basic education if deported to Serbia, it was bound by that evidence to find that that represented persecution under s 2 of the 1996 Act.

In the Supreme Court, Clarke J set out the grounds for allowing the State’s appeal:

1. Although the RAT found that there was some risk that ED “would not receive even a basic education, that risk was multi-factorial and could not be either exclusively or predominantly regarded as being due to state action” [6.17];
2. that the RAT’s finding was not unreasonable (judicial review standard) on the information available to it [6.20]; and,
3. on that basis, the trial judge was incorrect in his conclusions [6.21].

Denham CJ, O’Donnell, Laffoy and Charleton JJ concurred. Charleton J issued a concurring judgment (here) with observations relating, among other things, to whether denial of education can amount to persecution. Denham CJ, O’Donnell and Laffoy JJ concurred.

 

Background

In 2006, ED was born within the State to parents of Serbian Askhali ethnicity. The Askhali are regarded as Roma in Serbia. In 2009, the RAT refused ED’s application for refugee status. That decision was appealed by way of judicial review to the High Court. There it was claimed that ED would suffer persecution on a number of grounds if deported to Serbia. In 2011, Hogan J delivered judgment in the High Court allowing ED’s appeal on the sole ground that, as the RAT had found that there was a real risk that ED would not receive basic education if deported to Serbia, it was bound to find that this amounted to persecution or the purposes of s 2 of the 1996 Act. The State sought leave to appeal to the Supreme Court.

 

Appeal

The High Court certified a point of law of exceptional public importance for appeal to the Supreme Court (pre-33rd Amendment). The questions certified were:

(a) Whether discrimination against the group to which a child belongs giving rise to a risk that the child would not get a basic education if returned to his country of origin must be found to amount to persecution within the meaning of Section 2 of the Refugee Act, 1996?

(b) Whether the High Court on an application for judicial review can substitute its own assessment of whether the contended for infringements of basic civil liberties amounted to “persecution” within the meaning of Section 2 of the 1996 Act for that of the Tribunal Member?

(c) Whether the potential denial of a basic education is capable of constituting its sufficiently severe violation of basic human rights so as to amount in law to persecution?

On (a), Clarke distinguished between laws that directly prevented persons of a defined ethnicity from obtaining an education and circumstances which cold contribute to a person not obtaining an education. The first could constitute a denial of rights so fundamental as to meet the threshold of persecution [6.12].

On (b), Clarke J stated “a court’s function is to determine whether the facts, as found by the administrative body, can be sustained on judicial review principles. It is not normally the function of a court to make its own findings of fact except, …” [6.3].

On (c), Charleton J cautioned that a compete denial of education must be shown before it could be capable of constituting persecution [4, 5]. And, as Clarke J stated, it would also be necessary to show that the laws of the state in question directly (and solely) prevented that denial of education.

 

Court’s Observations

Both judgments pointed out that the Court’s jurisdiction was restricted to the legal issues of the case. But the Court expressed its concern that ED is a 10 year old child who was born and has lived his entire life within the State, and there are very real humanitarian concerns which the justices, speaking personally, wished that the relevant authorities would take into account.

McEnery v Garda Commissioner: Garda’s conviction for assault is not a self-evident reason for summary dismissal

In this judgment (here), the Supreme Court unanimously held that, for the purposes of Regulation 39 of the Garda Síochána (Discipline) Regulations 2007 (here), the fact that Garda Sergeant McEnery had been convicted of assault under s 2(1) of the Non-Fatal Offences Against the Person Act 1997 (here) was not a self-evident reason for the Commissioner to summarily dismiss her from the force. Natural and constitutional justice requires that the Commissioner give adequate reasons for decisions of that nature, which would enable the High Court to review the legality of such decisions.

Background

In 2011, Waterford Circuit Court convicted McEnery of assault contrary to s 2 of the 1997 Act. The trial judge sentenced her to four months imprisonment, suspended for six months. The Court of Criminal Appeal upheld that conviction.

Although McEnery had a clear disciplinary record otherwise and had received commendations on a number of occasions, the Garda Commissioner served her with notice of his intention to summarily dismiss her pursuant to Regulation 39 of the 2007 Regulations, on grounds that she was unfit for retention in the force. In accordance with Regulation 39, the Commissioner allowed McEnery the opportunity to submit reasons why she should not be dismissed.

McEnery submitted that other gardai had been convicted of assault but were allowed to remain in the force; that the Commissioner had not considered the full facts but had relied on the fact of conviction; and that if the Commissioner held an inquiry into her case, she could provide evidence that would affect the decision relating to her dismissal.

Subsequent to McEnery’s submission, the Commissioner informed her that he was not prepared to alter his decision and was proceeding to seek the Minister for Justice’s permission to dismiss her from the force.

McEnery issued judicial review proceedings seeking an order of certiorari quashing the Commissioner’s decision. She argued that the Circuit Court conviction did not absolve the Commissioner from conducting his own inquiry.

 

High Court

Kearns P (here) dismissed McEnery’s application. He held that, although summary dismissal power was unusual and exceptional, it is not for the courts to decide what behaviour warrants dismissal of a garda: that is a matter for the Commissioner and the Minister. McEnery appealed that decision to the Court of Appeal.

 

Court of Appeal

Overturning the High Court decision, the Court of Appeal (here) held that the plain wording of Regulation 39 require that the material facts and the breach of discipline both merit dismissal. The Supreme Court granted the Commissioner permission to appeal that decision (here).

 

Supreme Court

Laffoy J summarised the issues as:

(a) Whether the decision of the Commissioner as proposed in the Regulation 39 Notice of 24th December, 2012 and confirmed in the letter of 25th March, 2013 is ultra vires Regulation 39 by being in breach of the requirements of Regulation 39(2)(a) by reason of the reliance by the Commissioner solely on the conviction of Sgt. McEnery in the Circuit Court and the sentence imposed on her as material to the breach of discipline and of the failure of the Commissioner to consider any other facts which it is contended on behalf of Sgt. McEnery are material facts for the purpose of the proper application of Regulation 39(2)(a).

(b) Whether the decision of the Commissioner should be quashed on the ground that the Commissioner failed to give adequate reasons for his decision in accordance with either –

(i) the requirements of Regulation 39, or

(ii) the principles of natural and constitutional justice.

(c) Whether Sgt. McEnery has established that the decision of the Commissioner contravened natural and constitutional justice in treating Sgt. McEnery in a manner which is discriminatory and disproportionate in comparison to the treatment of other members of An Garda Síochána who have been convicted of assault.

On issue (a), Laffoy J rejected the Court of Appeal finding that the Commissioner must consider the material facts relating to the conviction and could not rely solely on the fact that McEnery was convicted of the offence. But she qualified that by stating:

it must not be overlooked that on an objective analysis of the gravity of the breach of discipline based on the nature of the offence which was the subject of the conviction, a relevant factor may be a comparison with the nature of a more or less serious offence of which the member might be charged and convicted or acquitted [44].

On issue (b), Laffoy J held that it would be utterly meaningless to provide a mechanism for an affected garda to make a submission if the Commissioner was not required to give consideration to any submission made and to give reasons for rejecting such submissions [62].

Allowing McEnery’s appeal, Laffoy J stated:

it cannot be said that the issue involved in this case is so self-evident and narrow that the mere fact of the decision discloses the reason. Accordingly, I consider that the decision of the Commissioner to dismiss Sgt. McEnery should be quashed on the ground of failure to give adequate reasons for the decision [65].

On issue (c), Laffoy J held that, on the facts presented, McEnery had not established that the Commissioner had treated her in a manner which was discriminatory in comparison to other cases.

 

Buckley v District Judge Hamill: Gardai have no discretionary power to postpone execution of a warrant where the whereabouts of the person is known

Here, the Supreme Court held that, it is a prerequisite of Order 26 rule 11 of the District Court Rules (re-issue of a warrant for the non-payment of a fine) that the warrant was not executed because the person could not be found. And the onus is on gardai to prove that the person could not be found. Aside from where an appeal has been lodged, and except in only limited circumstances, gardai have no discretionary power to postpone execution of a warrant if the whereabouts of the person is known; although a garda may make appropriate arrangements to execute a warrant at an arranged time. The power to imprison for non-payment of a fine lapses if the fine is paid.

Background

Bucley was the subject of 12 committal warrants for non-payment of fines relating to road traffic offences committed in 2007. The District Court Judge re-issued the warrants on two occasions, in 2008 and 2009.

Order 26 rule 11 of the District Court Rules (mirroring the language of s 33 of the Petty Sessions (Ireland) Act 1851) provides that where the person charged with executing the warrant:

is unable to find the person against whom the warrant has been issued or to discover where that person is or where he or she has goods, such person having the execution of the warrant shall return the warrant to the Court which issued the same (within such time as is fixed by the warrant or within a reasonable time, not exceeding six months where no time is so fixed) with a certificate (Form 26.4, Schedule B) endorsed thereon stating the reason why it has not been executed, and the Court may re-issue the said warrant, after examining any person on oath if the Court thinks fit so to do concerning the non-execution of the warrant, or may issue any other warrant for the same purpose from time to time as shall seem expedient.

On the first occasion of re-issue, Garda O’Keeffe certified that he did not execute the warrants as Buckley lodged an appeal, but he was seeking re-issue as she did not proceed. On the second occasion, Garda Rowland certified Buckley’s address, that she was aware of the existence of warrants and that her solicitor had given assurance of her surrender if the warrants were re-issued.

In January 2010, Buckley issued judicial review proceedings seeking an order of cetiorari against the District Judge’s decision to re-issue the warrants. The High Court refused Buckley’s application; she appealed to the Supreme Court.

Buckley argued that there is no discretion to postpone the execution of a warrant and no general power to re-issue a warrant. The Petty Sessions Act and Order 26 provide the only grounds for re-issue: the person could not be found. There is no record of any evidence before the District Court that Gardai made any enquiries about Buckley’s whereabouts. And as a matter of fair procedures, she should have been put on notice of the application for re-issue.

O’Malley J wrote the judgment for the three judge panel and followed the Supreme Court decision in Brennan v Windle [2003] 3 IR 494. In that case, Brennan was arrested for committal on foot of a re-issued warrant. In subsequent judicial review proceedings, the Court ordered his release as there was no record (or secondary evidence) that gardai certified that they were unable execute the first warrant. Hardiman J held that “[a] person who holds a warrant which has expired is not entitled, as of right, to have it reissued, but only on proof of particular matters”. Geoghegan J held that:

If the certificate, contrary to what is asserted, never existed, then the reissue of the warrant was invalid and the order should clearly be quashed. There is a clear requirement under the rules that there be a certificate before the judge, to whom the application for reissue is made, certifying the reasons.

Allowing Buckley’s appeal in this case, O’Malley J held:

  1. Apart from a case where an appeal has been lodged there is no statutory discretion to postpone execution where the whereabouts of the person are known, at the request of that person or otherwise (save perhaps for a limited period in exceptional circumstances). This does not, of course, mean that such warrants may not be executed by appropriate arrangement between the garda and the person concerned.
  2. It is, therefore, a prerequisite to the renewal of a warrant that it has not been executed because the person cannot be found. If the Court is not satisfied of that fact it should refuse to renew the warrants. Since that criterion was manifestly not satisfied in this case, it follows that the renewals were invalid.

MacMenamin J and Laffoy J concurred.

Sfar v Revenue Commissioners: applicant for mandamus must first call on the administrative body concerned to do its duty, and this must have been refused

Here, the Supreme Court confirmed the High Court finding that Sfar’s judicial review application was out of time and that the High Court was therefore correct to dismiss her action, as she had not applied for an extension of time. However, the Court overturned the High Court Judge’s finding that Sfar lacked candour in her submissions.

Background

Sfar is an employee of the Revenue Commissioners since 1978. She holds a BA Degree and an LLB. In 2004, Revenue issued a circular titled “Refund of Academic Fees Scheme” to its employees. To convert her LLB into a professional qualification, Sfar undertook a Bar Vocational Course with a private London college. In 2007, she applied, under the Refund scheme, for a refund of her course fees.

In March 2008, Revenue informed Sfar that the business case did not support her application. Sfar entered correspondence with Revenue seeking to have that decision reversed. Revenue issued two further refusals in 2008. In January 2009, the Assistant Secretary reviewed the case and issued a final refusal. Sfar continued to correspond with Revenue until February 2010, when Revenue stated that it had set out its final decision in January 2009 and requested she halt correspondence on the matter. In March 2010, the High Court granted Sfar leave to issue judicial review proceedings seeking an order of mandamus directing Revenue to review its decision.

In the High Court, MacMenemin J dismissed Sfar’s application on grounds of delay. Under Order 84, rules 18 -21 of the Rules of the Superior Courts, a judicial review application must be made within three months (six months for certiorari). MacMenamin J determined that Sfar’s grounds for action arose with Revenue’s decision in January 2009, therefore her application was out of time. MacMenamin J went on to find that Sfar had lacked candour in not outlining the full sequence of exchanges between herself and Revenue in her application. Sfar appealed the High Court decision to the Supreme Court.

Supreme Court

On appeal, Sfar argued that she could not apply for judicial review until she had exhausted alternative remedies, and, therefore, for the purposes of her application, Revenues final decision was February 2010.

Upholding the decision of the High Court, McKechnie J adopted the rule from Hogan & Morgan, Administrative Law in Ireland that for a cause of action to arise “the applicant for mandamus must first call on the administrative body concerned to do its duty, and this must have been refused” [21].Therefore, Sfar’s cause of action arose with Revenue’s decision of January 2009. Order 84 requires that an application for an order of mandamus must be moved promptly; but Sfar did not apply for judicial review within the prescribed three months.  Order 84 allows for an extension of time where the applicant shows “good reason”. McKechnie stated that “good reason” was best defined by Costello J in O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301, 315:

The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.

However, Sfar had not applied for leave to extend time to issue proceedings, therefore the High Court was correct to dismiss her application.

On the issue of lack of candour, McKechnie J overturned the decision of the High Court. He found that Sfar was prima facia justified in arguing that  her cause of action arose in 2010–even though that was incorrect.

Clarke J and Dunne J concurred.

Agrama v MJELR: “A colourful cast of characters, and some exotic locations”

Default_en-default_picture1-1Section 51 of the Criminal Justice Act 1994 (here), which has since been replaced, gave effect to the State’s obligation under the European Convention on Mutual Assistance in Criminal Matters to provide for the taking of evidence within the State on request by another state. This case concerned the exercise of the Minister’s discretion when such a request is received. O’Donnell J (here) held that:

35 In a case like this, which is an investigation case, this suggests that a minister must be satisfied that the request is from an appropriate body; that there are reasonable grounds for suspecting that an offence under the law of that country has been committed; and that an investigation is being carried out there. Even when such conditions are satisfied, the Minister has a discretion not to nominate a District Justice under section 51. Having regard to the objective of mutual assistance, it will be only on rare occasions that the Minister would refuse. Refusal would normally require compelling reasons. …

Background

In the words of O’Donnell J, this case involved a colourful cast of characters and some exotic locations. Agrama is an American business man who brought judicial review proceedings seeking to quash the Minister’s decision to appoint two District Court judges, under s 51 0f the 1994 Act, to take evidence from him after receiving a request from an Italian prosecutor.

The colourful cast includes former Italian Prime Minister Silvio Berlusconi, and the exotic locations referred to are Hong Kong and the Netherland Antilles. The Italian prosecutor was investigating fraud and money laundering through the purchase of television rights and their resale at a highly inflated price ($170 million per year) with the proceeds being channeled back to key individuals through Swiss bank accounts. And there was an Irish registered company connected to Agrama involved. The judgment has no more detail than that.

The Italian prosecutor wrote to the Minister seeking that evidence be taken from Agrama. The Minister appointed a District Court judge to do so. Agrama’s solicitors sought an adjournment, during which time they wrote to the Minister pointing out a number of inaccuracies in the prosecutor’s letter and requesting a revisit of the decision on grounds that the request was an abuse of process. The Minister conferred by letter with the prosecutor, who replied by a second letter addressing the objections made. The Minister’s next letter to Agrama did not address any of the alleged inaccuracies but confirmed the new court date and informed that, due to illness, a second judge had to be appointed to take Mr Agrama’s evidence.

S 51 of the 1994 Act

Previous cases have looked at aspects of s 51. In Salinas de Gortari v Smithwick [2000] 2 IR 553, McGuinness J in the High Court found that s 51 permitted a District Court judge to compel a witness to attend court but not to hold them in contempt for failure to answer questions, nor did it provide any penalty for refusal to give answers. And in Brady v Haughton [2006] 1 IR 1, Murray CJ in the Supreme Court held that s 51 did not involve the administration of justice. In such cases the judge was not conducting an inquiry or making a determination of facts: the judge is a persona designata performing an administrative function, and the function of the District Court is limited to issuing a summons, if needed.

Case History

The District Court judge took Agrama’s evidence in April 2008; he applied to the High Court for judicial review of the Minister’s decision, claiming that it was vitiated by misleading and inaccurate information which constituted an abuse of process. The proceedings did not run smoothly. In the High Court, Peart J issued an interim decision, but he did not issue the substantive judgment until January 2013, when he refused Angrama’s claim. Agrama appealed to the Supreme Court.

In the Supreme Court Agrama limited his appeal to one issue: that the Minister acted ultra vires in adopting an fixed policy and in not considering his representations.

O’Donnell J dismissed the appeal.

Two judgments this week on abuse of process

maxresdefaultH v H

This case could inspire a whole Gareth Brooks album. Not only did the Appellant crash his ex-wife’s wedding and prevent the ceremony, claiming that the High Court had granted him an extension of time to appeal their decree of divorce (5th of May 2015). But since their separation in 2001 he had also subjected his ex-wife to years of vexatious litigation that had brought the couple before the courts on 83 occasions, in the District Court, the Circuit Court and the High Court, and before the Supreme Court in two appeals this year.

In 2009 the Appellant issued High Court proceedings seeking, among other things, custody of the couple’s children. In 2011, MacMenamin J dismissed those proceedings and ordered that he does not issue any further proceedings in the High Court stating that the Circuit Court was the appropriate forum, as the parties had been before it on eight previous occasions. He lodged an appeal of that decision but did not prosecute it any further until a strike-out was imminent. Between that High Court decision and the appeal coming on the Court’s list on 1st of May 2015, the Appellant’s ex-wife had issued Circuit Court proceedings seeking a decree of divorce and had been granted that decree. But the Appellant claimed before the Court that he was not aware of that decree. And later, on the date of hearing, he claimed to have applied to the High Court for an extension of time to appeal the decree, and that that extension was granted. However there was no evidence before the Court to indicate that that was the case.

Charleton J (here) stated that, as final orders are less common in family proceedings, it is necessarily rare that the courts would issue an Isaac Wunder Order in such proceedings. However, this case had crossed that line.

Denham CJ and Dunne J concurred.

 

Carroll v Air Accident Investigation Unit

Carroll is an aircraft maintenance engineer and was formerly employed by SR Technics at Dublin Airport. In 2012, Peart J refused his High Court application for judicial review of the Air Investigation Investigatin Unit’s decision not to investigate a workplace accident which caused the death of an SR Technics employee and seeking an order of mandamus directing an investigation. The circumstances of the accident were that a basket containing the deceased came loose from its hoist while he was defrosting an aircraft. The aircraft was stationary, the engines were off and there were no crew members or passengers on board the aircraft. And the incident was investigated by the Health and Safety Authority. Carroll appealed that decision.

The Law

Under the Air Navigation Regulations 1997, the Investigation Unit must investigate every accident or serious incident which occurs with the operation of an aircraft after any person enters the aircraft with the purpose of flight until such persons disembark.

An applicant for judicial review must show: standing, a stateable case, a legal entitlement to the reliefs sought if successful, application was within time, and that judicial review is the appropriate procedure G v DPP [1994] 1 IR 374.

The Supreme Court

MacMenamin J (here) determined that the kernel of the case was whether the incident was one which came within the statutory remit of the Investigation Unit. And he held that it was not, and that Carroll failed show that he was entitled to the relief sought. Furthermore, Carroll had informed the Court that he now devotes much of his time to pursuing the interests of former SR Technics employees. And the Court was informed that the High Court had refused Carroll another judicial review application relating to the Investigation Unit’s refusal to investigate the unsafe situation in the airspace over Ukraine. But he had not appealed that decision.

The judgment goes on to mention the Court’s power to issue an Isaac Wunder Order against persons who issue vexatious proceedings. But as Carroll had not appealed the second High Court decision, MacMenamin J determined that he was not a vexatious litigant.

Clarke J and Laffoy J concurred.

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