issue which arises in these cases is that of service of a summons of complaints
against an individual person by service on an agent of a company of which the
individual person is a member or director.
two matters related to the same facts and were intended to be heard together.
An issue arose with regard to the promptness of the second application and it
was agreed between the parties that, depending on the outcome of the first
application, the issue of promptness should be taken as a preliminary issue in
the second proceedings.
Notice of Motion dated the 12th of August the Applicant sought an Order for
Certiorari quashing and setting aside the decision of the Circuit Court Judge
dated the 9th of May 1998 wherein the learned Judge upheld Orders of the
District Court convicting the Applicant of certain offences under the Road
Traffic Acts. A further Order of Prohibition restraining the Director from
taking any further proceedings against the Applicant with respect to the events
of the subject matters of those Orders.
grounds on which leave was sought (and granted) by McCracken J. on the 29th of
July, 1998 was that the second named Respondent had no jurisdiction to hear the
appeal the subject matter of the proceedings in circumstances where the alleged
offence was not properly before the District Court. Specifically the Applicant
had not been properly served with summonses in relation to the alleged offences
and, accordingly, the alleged Orders of the District Court were made in excess
of jurisdiction and in breach of the rules of natural and constitutional
addition, the Applicant says that the delay in issuing and serving the District
Court Summonses (which he denies having been served) had the effect of denying
him his Constitutional Rights to an expeditious trial.
the summonses exhibited an error of law on their face in that they failed to
identify any statute or any other law alleged to have been breached. Moreover,
they were bad on their face in that the date of the application is outside the
six month limit which defect cannot be cured by the hand written reference to
an earlier date.
that the learned Circuit Court Judge erred in law and exceeded his jurisdiction
in taking into account the manner in which the Applicant had conducted his
defence in determining whether or not to uphold the District Court Order.
Applicant’s Grounding Affidavit filed the 27th of July, 1998 states that
on Sunday the 2nd of June, 1996 he was stopped by Garda James Downey who
informed him that he had exceeded the 60 mile speed limit applicable in that
driving from Kerry to Dublin he had purportedly travelled at 98 mph, 97 mph and
his Affidavit the Deponent says that he apologised and that he admitted that
the speed at which he was driving was excessive. He said that he supplied his
name and his private address and also his business address at Rimec Limited, at
Lower Rathmines Road in the City of Dublin.
says that the three District Court Summonses issued on the 7th of April 1997
were not personally served. He says these summonses were incorrectly served on
Patrick Reynolds at the business address of Rimec Limited.
District Court hearing on the 17th of June 1997 proceeded in his absence. The
Applicant was fined and disqualified him from driving for twelve months. The
Applicant said he was not at any time served with the summonses and had no
opportunity to be present at the hearing of the District Court in on that date.
relation to service the Deponent says that Patrick Reynolds was present at the
office of Rimec on the 7th of April 1997 and members of the Gardaí
purported to serve the summonses on him. The summonses were returned to the
District Clerk and correspondence insued between Mr Reynolds and the District
Applicant says that he did receive the Notice of Imposition of Penalty and
instructed his Solicitor to take necessary steps to enable him to appeal the
said decision of the District Court. The Circuit Court, with a small
variation, affirmed the decision of the District Court.
DPP also says that the Applicant is dis-entitled to relief by virtue of his
having to make application for leave to seek Judicial Review promptly, for
having appealed to the Circuit Court and for being guilty of lack of candour in
failing to say whether, when and where he became aware of the service of the
James Downey gave evidence of five attempts to serve the Summons, including
substituted service, in respect of the said summonses. Garda Downey had failed
to serve at the Applicant’s home address and at the business address from
which the summonses were returned unserved. On the 10th of March 1997 he
posted the summons to the Applicant again at the business address marking the
envelope “Private and Personal”. The summons was returned with a
compliment slip from the Company stating that “Michael O’Shea is
currently in Germany, on occasion he stays at the Berlin Mark Hotel” and
gave the address of that hotel.
Downey applied to the Court Clerk to issue a new summons in April 1997 which he
attempted to serve personally. In the presence of another Garda he asked the
receptionist for Mr O’Shea and was eventually told that he was not in.
Garda Downey then asked to speak to the Secretary of the Company and met
Patrick Reynolds who said that he was Chief Accountant. He then served the
summonses on Mr Reynolds.
a replying Affidavit the Applicant says that he was not in the Office, that he
was in Germany and that Patrick Reynolds was not his agent as is stated in the
Statutory Declaration as to service. The Applicant avers that he has no
knowledge of the identity of the person or persons who opened the letter marked
“Private & Confidential” in April 1997; that he has no
knowledge whatsoever of the identity of the person or persons who refused to
accept the previous letter nor any reason or reasons why it might have been
Reynolds gave evidence on the first day of the trial of the nature of his
consultancy work. He said he had authority to deal with third parties, was a
signatory to the cheque book and was effectively the interface with staff and
third parties with regard to supplies to the Company. He said that he also
dealt with the auditors and took in correspondence.
relation to the purported service of the summons he said he felt that he was
duped into doing something and wanted to get himself out of the situation. He
was miffed. He was peeved at the service, read the papers and sent them back
the following day.
Felix McEnroy S.C. for the Applicant said he would limit his questions to the
issue of lack of candour and relied on the
-v- Minister for Defence
in relation to a public wrong done to the Applicant in relation to the criminal
conviction against him in the absence of fair procedures.
Applicant says that he was not at any time served and that the reason why his
Affidavit did not deal with when he became aware of the summons was because he
was never asked. All he could offer to the Court was possible explanations as
to why he had not been served. In cross-examination he stated he would have no
way of establishing the name of the receptionist, that other managers might but
he had not asked them.
McEnroy S.C. submitted that the issue of agency in relation to criminal
matters was one that raised some disturbing issues. The definition in
act on behalf of another
was a contractual concept. In relation to notice
(Clarke & Roche) -v- DPP
aggregated service with notice. The lack of notice had a corrosive effect on
the Applicant with regard to the concept of fairness of proceedings. The issue
of a two year ban was neither local or limited for someone whose work required
extensive travel in Germany.
referred to the case of
which, in contrast to the present case, involved evasion and lack of candour.
However, even in those circumstances the Court took a view that, were there was
a risk of miscarriage of justice, the Applicant was entitled to relief. The
communities interest in prosecution was subsidiary to the right of an accused
to a fair trial.
Anthony Collins, Barrister at Law on behalf of the Director submitted that it
was not necessary to have notice.
Laten -v- Shires(1960)
2QB Parker LCJ, Ashworth and Hinchcliffe JJ is a case in point. There the
Defendant was charged with driving without due care and attention and a Notice
of Intended Prosecution was addressed to him and sent by registered post to his
home address. When the Notice arrived the Defendant had left for a holiday
abroad and the registered package was received and signed by a member of his
family or by a “nanny” in his employ. The Defendant first became
aware of the Notice when he opened the packet on his return which was more than
the requisite period after the date of the alleged offences. It was held that
the sending of the Notice by registered post to the Defendant’s address
within the relevant period of the alleged offence and its acceptance by a
person authorised to accept letters on his behalf was a compliance even where
the Notice did not reach the Defendant within the requisite period.
relation to the agency of Mr Reynolds,
-v- West London Investment Building Society
(1964) 2 ALLER 318 held that the words (any agent of the landlord duly
authorised) extended to the tenants servants who had no authority to act as
agent. The Court of Appeal nonetheless deemed that Notice had been validly
District Court has, of course, a discretion to secure the attendance of an
accused by warrant in the event of no appearance. In
-v- Roche and Kelly
(1989) ILRM 39 and 45 the Supreme Court, in a unanimous decision, interpreted
Rule 64 of the District Court Rules as follows:-
relation to natural and constitutional justice, the Applicant must show that he
had no Notice of the complaints the subject matter of the summonses. Neither
of the Applicant Affidavits deal with Notice despite the clear issues raised in
the Statement of Opposition.
the delay in bringing the application to quash the Orders two years after they
have made deprives the Applicant of relief. In any event, has no grounds
whatsoever been advanced that the Orders of conviction are a nullity.
have considered the issue of delay in initiating these proceedings and the
pursuing of an appeal in the Circuit Court of what is essentially a District
Court conviction where a statutory declaration of service was before the
Court has to consider also the interest of the community in prosecuting
offences, the assumption of proper procedures, the time and effort spent by the
Gardaí in effecting service, their very proper perception in the
circumstances of evasion of service, the vigorous appeal before the Circuit
Court and, indeed, the lack of candour in the Applicant’s Affidavits
regarding actual notice.
is clear also that in Judicial Review proceedings the standard is not that of a
criminal trial. Nonetheless this application arises from a criminal conviction
albeit under the Road Traffic Act but carry more than the monetary fine insofar
as it restricts the Applicant’s livelihood.
86 Rule 8 indicates a flexibility in the exercise of the power of extending the
time for Judicial Review (as recognised by the Supreme Court in
People (Director of Public Prosecutions) -v- Eamon Kelly
(1982) ILRM 1 at 3 et seq (per O’Higgins CJ)).
would, accordingly, extend the time for the Judicial Review application in the
second matter before the Court:
No.255JR, Michael O’Shea, Applicant and District Judge Mary Martin and
Director of Public Prosecutions, Respondents.
may very well have been that the Applicant could have argued against an
endorsement of his licence had he been present at the District Court and done
so successfully. The State say that that is now water under the bridge. In
any event it was an argument that could very well have been made at the Circuit
wording is, of course, appropriate to the mid nineteenth century, insofar as it
refers to family members and servants. While the category of persons to whom
such secondary service is proper is wider than those with a contract of service
as it includes any person in charge of a house or premises wherein the
Defendant usually resides as well as an agent who may not be a servant it is
clear that the relationship of those persons is directly with the Defendant.
There is no suggestion that a non-relative is included unless that non-relative
is an agent, clerk or servant or in charge of a residence of the Defendant.
would seem to be outside the contemplation of the Rule is a relationship
through a corporate body. Accordingly an agent, clerk or servant of a company
has no relationship to a Defendant who is a member or director or, indeed, an
agent, clerk or servant of the same company. The category of persons in charge
of a house or premises only relates to a house or premises wherein the
Defendant usually resides.
the protestations of the Applicant distancing himself and the Company from Mr
Reynolds and Mr Reynolds's own evidence, (which I prefer), that he was
intrinsically involved in the company (though not as an employee of the
company) he was not an agent of the Applicant. I accept, indeed, that he was
very much the agent of the company of which the Applicant was the managing
director. No evidence was given as to the share holding of the Applicant in
the several companies to which Mr Reynolds provided service. Even if that
evidence had pointed to the Applicant being the sole or majority or controlling
share holder the same problem would arise.
would seem to follow that the learned District Justice in exercising her
discretion correctly on the basis of the Statutory Declaration as to Service
had assumed, as she was entitled to do, that the summons had been properly
on a Company Secretary is good service on the Company. It is not good service
on a Director of the Company. While an argument could be made that service on
a Director, as agent of the Company (see Section 8 Companies Act, 1963 and
Statutory Instrument 123 of 1973) is service on the Company, the reverse cannot
be so. The Company is not an agent of the Director or member of the Company.
follows that if the Applicant was not properly served (despite the diligent and
very proper efforts of the Gardaí to effect same) then the matter cannot
have properly been before the District Court.
this is not the end of the matter. The State says that the Applicant is
estopped from raising this issue in view of the vigorous pursuance of his
appeal. He cannot properly say that he challenges service and yet purports to
appeal against conviction of sentence.
the circumstances it seems to me that rather than granting an Order of
Certiorari the appropriate remedy is to remit the matter back to the District
Court at Mountrath. It may very well be that the matter should be dealt with
by a Judge of that Court other than the trial Judge. In requesting such a
course of action, Mr McEnroy has very fairly stated to the Court that the
Applicant will not contest the issue of service.