THE HIGH COURT
		                                                         JUDICIAL REVIEW
			1998 No. 304JR
BETWEEN 
MICHAEL O’SHEA
			APPLICANT
AND 
DIRECTOR OF PUBLIC PROSECUTIONS AND
 HIS HONOUR JUDGE ANTHONY KENNEDY 
			RESPONDENTS
The High Court 
			1999 No.255JR
BETWEEN
MICHAEL O’SHEA
			APPLICANT
AND
JUDGE MARY MARTIN AND 
THE DIRECTOR OF PUBLIC PROSECUTIONS
			RESPONDENTS
JUDGMENT of Mr. Justice Roderick Murphy delivered the 30th day of November, 2000.
ISSUE
	The 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.
These 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. 
By 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.
The 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 justice.  

APPLICANT’S CASE
The Applicant says that the effect of  the defective service of the District Court Summonses was to deny the Applicant the benefit of having a two stage hearing.  
In 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.  
Two other grounds were included in the Statement of Grounds dated the 21st of July, 1998.  
Firstly, 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.  
Secondly, 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.
The 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 114 mph.  
In 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.
He says that four months later he moved to Germany and stayed in Berlin for eleven months up to the 1st of September 1997 on an almost full-time basis.  
He 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.   
The 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.
In 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 Court Clerk.
The Applicant says that the said service was defective in that Mr Reynolds was not an agent, clerk or servant of the Applicant contrary to what was stated in the statutory declaration of service.  
The 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.
RESPONDENT’S CASE
A Statement of Opposition was filed by the DPP on the grounds that:-
(a)	the Applicant is dis-entitled to the reliefs sought, cannot impugn the service of the Summonses by virtue of having opted to challenge the convictions imposed on him by way of appeal to the Circuit Court; 
(b)    	the Summonses were served in accordance with law;
(c)	the Applicant has failed to provide any adequate evidential basis upon which to claim that the Summonses were not served in accordance with law and
(d)	that the Applicant was at all material times aware of the pending prosecution and of the service of the summonses upon him at his place of business.
The 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 Summonses.
Garda 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.
Garda 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.
FURTHER EVIDENCE
In 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 refused.
He says that Patrick Reynolds was a consultant to the Company with whom he had practically no dealings.  He was at no time employed by the Company.
Mr 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.  
In 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.
In relation to the Applicant, Mr Anthony Collins, Barrister at Law, for the DPP said he did not want to cross-exam and, accordingly, that Mr O’Shea should not be allowed to give evidence.
Mr Felix McEnroy S.C. for the Applicant said he would limit his questions to the issue of lack of candour and relied on the State(Fury) -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.
The Court allowed the Applicant to be examined on this issue only.
The 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.
APPLICANT’S LEGAL SUBMISSIONS
Mr McEnroy S.C. submitted that the issue of agency  in relation to criminal matters was one that raised some disturbing issues.  The definition in Bowstead, of authority to act on behalf of  another was a contractual concept.  In relation to notice State (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.
Counsel referred to the case of Edward Noel Kelly 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.  
RESPONDENTS’ LEGAL SUBMISSIONS
Mr 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.
Counsel says that insofar as the Applicant had appealed to the Circuit Court he is estopped from pursuing his remedy in this Court.  

RULES RELATING TO SERVICE
The District Court Rules provide for service at a business address.  It further states that:-
“it shall be prima facie evidence for all purpose of the mode, time and place of service as set out (in a Statutory Declaration)”

The Applicant cannot go behind such Declaration.
In relation to the agency of Mr Reynolds, Price -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 served.  
The District Court has, of course, a discretion to secure the attendance of an accused by warrant in the event of no appearance.  In DPP -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:-
“ a District Justice before whom a person has been summonsed...is entitled, according to his or her discretion, upon it been satisfactorily established that such person was duly served with a summons but has not appeared, either to proceed to hear and determine the charge contained in the summons in the absence of the accused or if he or she shall so decide, to adjourn the hearing of the summons to a later date and to secure the attendance of the accused by warrant or otherwise.”  

In 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.  
Finally 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.
Decision
I 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 District Court.
This 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.
It 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.  
Order 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 the People (Director of Public Prosecutions) -v- Eamon Kelly (1982) ILRM 1 at 3 et seq (per O’Higgins CJ)).  
I would, accordingly, extend the time for the Judicial Review application in the second matter before the Court: 1999 No.255JR,  Michael O’Shea, Applicant and District Judge Mary Martin and Director of Public Prosecutions, Respondents.
	
It 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 Court hearing.
Order 47, Rule 2 (a) of  the District Court Rules, states:-
“A summons may be served on a Defendant to whom it is directed by delivering to him a copy thereof  issued for service or by leaving such copy for him at his last or most usual place of abode, or at his office, shop, factory, home or place of business with the husband or wife of the Defendant or with the child or other relative (residing with the Defendant)... or with any agent, clerk or servant of the Defendant, or with the person in charge of the house or premises wherein the Defendant usually resides, provided that any person (other than the Defendant himself) with whom such copy is left for the Defendant is not under sixteen years of age and is not the Complainant.
This rule follows Section 12(3) of the Petty Sessions (Irl) Act, 1851 (14 & 15 vict., see 93).
The 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.
What 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.
This would appear to me to be the difficulty with regard to the service in this case.
Notwithstanding 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.
It 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 served.  
Service 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.
It 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.  
However, 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.
In 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.