Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Barry -v- Mr Justice Fergus Flood & Ors [2012] IEHC 199 (22 May 2012)
URL: http://www.bailii.org/ie/cases/IEHC/2012/H199.html
Cite as: [2012] IEHC 199
[New search] [Help]
Judgment Title: Barry -v- Mr Justice Fergus Flood & Ors Neutral Citation: 2012 IEHC 199 High Court Record Number: 2011 605JR Date of Delivery: 22/05/2012 Court: High Court Composition of Court: Judgment by: Hedigan J. Status of Judgment: Approved |
Neutral Citation Number: [2012] IEHC 199 THE HIGH COURT RECORD No. 2011/605 JR BETWEEN OLIVER BARRY APPLICANT AND
MR. JUSTICE FEARGUS FLOOD, HIS HONOUR JUDGE ALAN MAHON, HER HONOUR JUDGE MARY FAHERTY AND HIS HONOUR JUDGE GERALD KEYES IRELAND AND THE ATTORNEY GENERAL RESPONDENT'S THE HIGH COURT RECORD No. 2011/5073 P BETWEEN OLIVER BARRY APPLICANT AND
HIS HONOUR JUDGE ALAN MAHON, HER HONOUR JUDGE MARY FAHERTY AND HIS HONOUR JUDGE GERALD KEYES RESPONDENT'S Judgment of Mr. Justice Hedigan delivered the 22nd of May of 2012 1. The applicant resides at Hollystown Golf Club, Hollystown, Dublin 15. The respondent is the Tribunal of Inquiry established on 7th October, 1997, by Ministerial Order, to inquire urgently into and report to the Clerk of the Dáil, in relation to certain planning matters and payments matters of urgent public importance. 2. The respondent in this application seeks the following reliefs:-
2. An Order to set aside the said leave on the basis that the Applicant did not make a full and frank disclosure of all the material matters at the ex parte application for leave to apply for judicial review. 3. An Order to set aside the leave granted as the proceedings and reliefs claimed are out of time and I or are an abuse of process and/ or are frivolous and vexatious. 4. An Order pursuant to the inherent jurisdiction of the Court to set aside the said leave granted in the interests of justice and I or in the public interest. 5. An order determining this application as a linked application to the Judicial Review list with the Second to fourth named respondents Notice of Motion seeking similar relief in proceedings entitled the High Court Record No 2011 No. 5073 P between Oliver Barry applicant and Judge Alan P Mahon, Judge Mary Flaherty and Judge Gerald B Keyes being the Tribunal of Inquiry into Certain Planning Matters and Payments otherwise being plenary proceedings originally returnable in the Chancery List. 3.1 This motion dated the 29th July, 2011 is brought by the respondents seeking to set aside the ex parte leave granted by Peart J. on the 18 July, 2011. The respondent seeks to set aside the proceedings on the basis first, that the applicant did not make full and frank disclosure of material matters at the leave application, second that the reliefs claimed are out of time pursuant to Order 84 r 21(1) of the Rules of the Superior Courts, third the proceedings are an abuse of process and I or are frivolous and vexatious and should be set aside in the interests of justice and I or in the public interest. This motion is linked with earlier plenary proceedings dated the 12th July, 2011, in which the plaintiff (the applicant herein) sought identical reliefs regarding an order of certiorari quashing a decision made on the 7th March, 2011 by Judge Alan P. Mahon, refusing to vacate an earlier costs ruling dated the 15th October, 2004. The defendants in the plenary proceedings seek an order to dismiss the plaintiff's claim on the grounds of inordinate and inexcusable delay, want of prosecution and I or in the public interest. Mr. Justice Flood and the three Circuit Court judges who are the present members of the Tribunal of Inquiry into Certain Planning Matters and Payments ("the Planning Tribunal'') are sued as respondents in the judicial review proceedings. Only the present members of the Planning Tribunal are joined in the plenary proceedings. 3.2 The applicant seeks the following relief's in the judicial review proceedings:
(b) If Certiorari is granted :- (i) the applicant seeks a declaration that the findings made by the first named respondent in the Second Interim Report published on the 26th September, 2002 were made ultra vires and in breach of fair procedures. (ii) A Declaration that the decision of the respondent refusing the applicant his costs was ultra vires and in breach of fair procedures. (iii) A Declaration that section 6(1) of the Tribunals of Inquiry (Evidence) Amendment Act 1979, as amended by section 3 of the Tribunals of Inquiry (Evidence) Amendment Act 1997 is unconstitutional. (iv) A Declaration that the applicant is entitled to costs as claimed. (c) Damages. (d) If necessary an extension of time to bring the within proceedings. (e) An Order that the proceedings be determined by plenary hearing. Respondents Submissions
4.3 Order 84 r. 21(1) RSC provides that leave to apply for judicial review shall be made promptly and in any event three months from the date when grounds for the application first arose or six months where the relief sought is certiorari, unless the Court considers that there is "good reason" for extending the period within which the application shall be made. In De Roiste v. Minister for Defence [2001] 1 IR 1 Fennelly J. held as follows at 2:-
4.4 On the 26th September, 2002 the Second Interim Report of the Planning Tribunal determined that the applicant had made a corrupt payment of £35,000 to Mr. Ray Burke in May 1989. On the 15th October, 2004 the second named respondent refused the applicant's application for costs. He did so on the basis that the applicant had obstructed and hindered the Tribunal. On the 7th March, 2011 the second named respondent refused to revisit this costs decision. The respondents submit that the applicant's cause of action and complaint referable to the ruling on costs commenced and started to run on the 15th October, 2004. A three month declaratory relief or six month (certiorari) time limit has long since expired. The six month time limit would have expired on the 14th April2005. 4.5 In the applicant's affidavit filed on the 18th July, 2011 grounding the application for leave, the Second Interim Report of the Planning Tribunal published on the 26th September, 2002 is described at paragraphs 19 to 24. The affidavit refers to the substantial costs incurred by Mr. Barry in legal representations before the Tribunal. That however is referred to generally in the affidavit. A reason advanced to explain the costs refusal is found in the replying affidavit of Oliver Barry filed on the 4th November 2011 in paragraph 57 as follows:-
4.6 The decision of the second named respondent refusing the applicant his costs is described at paragraph 24 of the applicant's verifying affidavit filed on the 18th July, 2011. The explanation given for the delay in instituting judicial review proceedings on the 18th July 2011 is described in paragraphs 25 and 30 of the affidavit. The applicant was aware of a challenge by another party and the applicant resolved to await the outcome of that challenge. This is understood to refer to the subsequent challenge instituted by way of plenary proceeding in Murphy v Flood concerning the refusal of costs to those plaintiffs made by the Tribunal on the 9th November, 2004. The applicant further states that he did not believe it would be possible to negotiate a contingency arrangement with his legal representatives and he was not otherwise in a position to fund a legal challenge. This is the only explanation given in the verifying affidavit filed on the 181h July, 2012 for the delay regarding the declaratory reliefs applied for if the applicant is successful in his application for certiorari. The affidavit would appear sworn on the basis that there is no requirement to give any explanation for delay as the leave application has been made within a six month period from the 7th March, 2011. Amongst the grounds of relief sought in the statement required to ground application for judicial review at paragraph D (vii) is the following: "If necessary, an extension of time to bring the within proceedings". The nearest to a general explanation given is in paragraph 30 of the verifying affidavit where the applicant states:-
The exhibit SG6 to the second affidavit of Susan Gilvarry filed on the 14th November, 2011 includes the text of the draft plenary summons and the draft engrossed plenary summons. The draft engrossed plenary summons claims an order setting aside the decision and order of the first named defendant dated the 15th October, 2004 wherein he refused the plaintiff his costs before the Tribunal. The second named respondent in rejecting the applicant's application to revisit the costs decision of the 15th October, 2004 referred to the practice of issuing a plenary summons challenging his decision and allowing it to abide the outcome of similar proceedings. No such steps were taken by the applicant notwithstanding the advice received and the draft plenary summons prepared. The draft engrossed plenary summons which was furnished to the applicant on the 8th December, 2004, as referred to in paragraph 48 of his replying affidavit, would have been sufficient for the purposes of indicating a similar challenge to the plenary proceedings already instituted by plenary summons in Murphy v Flood on the 20th April, 2004. In the circumstances, the applicant has slept on his rights. 4.7 Notwithstanding the financial difficulties mentioned, the issuing and serving of a plenary summons to abide the outcome of a known legal challenge in December 2004/January 2005 would have protected his interests and would have entailed minimal costs consequences. The applicant decided not to issue those plenary proceedings having taken legal advice and discussed the matter with his family. When the respondents' notice of motion in the recent plenary proceedings was issued, the only facts brought to the respondent's notice were the facts referred to in the applicant's grounding and verifying affidavit sworn on the 18th July, 2011 in which there was no reference to the plenary proceedings. In circumstances where the applicant has taken no steps to prosecute the plenary proceedings and instead has instituted judicial review proceedings which repeat the relief sought in the plenary proceedings, the said plenary proceedings should be struck out with the usual cost consequences. 4.8 The duty to disclose at the ex-parte stage requires the utmost good faith of an applicant. There has to be material disclosure at the ex parte application and this material disclosure of material facts must be deposed to in the grounding affidavit. In his replying affidavit filed on the 4th November, 2012 the applicant states in paragraph 63 that Mr. Justice Peart was informed verbally by counsel of the existence of the plenary proceedings and the motion which the respondents instituted to have those plenary proceedings struck out. Having regard to the obligation of utmost good faith and candour that applies to any applicant for ex parte relief in judicial review proceedings, the existence of the plenary proceedings should have been clearly stated in the grounding affidavit. The applicant failed in his Grounding affidavit to depose to the fact that the respondents had already issued a motion to dismiss the plenary proceedings when the ex parte leave was sought. It is respectfully submitted that this was a material non-disclosure and that this should be taken into account when this Court is exercising its discretionary powers. 4.9 The Second Interim Report published on the 26th September, 2002 and the original costs ruling of the 15th October, 2004 concerned matters long concluded within the relevant statutory provisions of the Tribunal of Inquiry (Evidence) Acts. Matters are concluded and the Tribunal deals with other matters within its terms of reference. The work of the Tribunal otherwise would be prejudiced. It is submitted that the applicant has slept on his rights and having done so is bound by his conduct. Applicants Submissions
1. The materiality of the facts not disclosed. 2. The extent to which it may be said that the plaintiff is culpable in respect of a failure to disclose..." Secondly the Court must look at the culpability of the applicant in failing to disclose and whether it was a deliberate misleading or an innocent omission. It was clearly an innocent omission that this fact was not contained in the affidavit of the applicant as it was revealed to the Court by Counsel at the leave stage. 5.2 Order 84 Rule 21 of the Superior Court Rules, provides that leave to apply for judicial review shall be made promptly and in any event three months from the date when grounds for the application first arose or six months where the relief sought is certiorari, unless the court considers that there is "good reason" for extending the period within which the application shall be made. The decision the applicant seeks to challenge in D (i) of his Statement of Grounds, was made on the 7th March, 2011. It is submitted that this was a further decision on the part of the respondent, subsequent to their decision on the 15th October, 2004. The respondent accepts that the applicant is within time from the 7th March, 2011 decision. The respondents now seek to argue that the decision of the 15th October, 2004 cannot be challenged as it is "concluded" and may be regarded as a "past or closed legal dealing". They were entitled to rely on this when they were asked to reconsider the initial costs refusal decision in July-September 2010. Instead, and quite appropriately as there had been a change of circumstances with the decision of the Supreme Court in Murphy & Ors v. Flood [2010] IESC 21, they invited legal submissions, from the applicant. The applicant made extensive legal submissions. The respondent then issued a decision on the 7th March, 2011. It was a reasoned decision coming 4 months after the applicant's legal submissions. It outlined 6 reasons as to why the respondent was refusing to reconsider the applicant's costs application. The 7th March, 2011 decision came some 8 months after the applicant had first written to the respondent asking them to reconsider his costs application in light of the decision in Murphy v Flood & Ors. It is submitted that the March decision was a new decision. It was entirely different in wording and nature to the decision issued by the respondent on the 15th October, 2004. The applicant sought leave to challenge this decision on the 18th July, 2011. This is clearly within the 6 month time limit as defined in the Rules. 5.3 The respondents in their Notice of Motion maintain that the time ran from the 15th October, 2004 and there has been a lengthy delay on the part of the applicant. The applicant answers by outlining the history of the case to date. On 12th July, 2000 the applicant was told by Counsel for the Tribunal that he would be called to give evidence in mid-July 2000 (i.e. three or four days later). An impression was conveyed that he would conclude his evidence by the end of July or shortly thereafter. He engaged solicitors along with Senior and Junior Counsel to attend the Tribunal hearings. He was called as a witness in December of 2000. He gave evidence for approximately 14 days from then until February 2001. In 2000, when he became involved in the Tribunal, he was drawing an annual salary of €50,000 from his golf course enterprise. In 2002 he earned a total of €103,095 from the golf course and a concert promotion; in 2003 he earned €50,000 from the golf club. His legal fees from his involvement with the Tribunal ultimately cost him €611,000 by December 2002. He had no other savings or cash reserves. By 2004, the year in which the cost refusal decision was issued his financial situation was that he earned €46,000. He had a short term loan of €220,000 and had to increase his overdraft from €60,000 to €250,000. He had a further loan of €575,000 with Ulster Bank. All these facilities were to be reviewed at the end of 2004. By the time the costs decision came on 15th October, 2004 he was not in a financial position to acquire further borrowings to fund a legal challenge against the October decision. He was advised that a leave application would cost about €20,000 and a full hearing in the region of €100,000. In addition to that he had been advised that it was likely that he would not succeed and could be faced with the Tribunal's costs as well. However once the Supreme Court decision of Murphy v Flood & Ors issued in April 2010 the applicant had a much stronger case and he was also able to secure Counsel on a contingency basis subsequent to the 7th March, 2011 decision. To debar the applicant from taking these proceedings because of a delay that was principally because of his financial inability to take the proceedings in 2004, which was almost entirely as a result of the legal costs he incurred through his engagement with the Tribunal, would be unfair, unjust and inequitable. His ability to fund the challenge was undermined by the manner in which the respondent itself conducted its affairs as a result of which he incurred substantial legal costs. 5.4 In light of the Murphy v Flood & Ors decision the applicant argues that he now has a very strong case that the costs refusal made against him by the respondent on 15th October, 2004 was made ultra vires. It is submitted that the procedure of judicial review is there to protect against public authorities acting in excess of jurisdiction and it would be unfair to prevent the applicant from now seeking redress from such a wrong because he failed to take a case at an earlier opportunity due to the fact that jurisprudence was against him and his financial situation was strained. It is submitted that for these reasons, the balance of justice lies with allowing the applicant's case to proceed to substantive hearing. 5.5 The respondent contends that the applicant wishes to challenge the finding that he had made a corrupt payment in the sum of £35,000 to Mr. Ray Burke contained in the Second Interim Report of the Tribunal. The applicant does in fact dispute this finding but is not challenging it in these proceedings. He is only seeking to rely on Murphy v Flood & Ors to argue that the respondent is not entitled to make a finding of obstruction and hindrance against him in the Second Interim Report. The Supreme Court found that the findings of obstruction and hindrance in the Second Interim Report were ultra vires in that they were outside the Terms of Reference of the Tribunal and any legislation governing the Tribunal and amounted to a finding of criminal conduct. In response to the respondent's submission regarding the failure to prosecute the Plenary Summons, the applicant is prepared to agree that the Plenary Summons be struck out but submits that costs should not be awarded against him. The respondents argue that the applicant could have issued a Plenary Summons in December 2004/January 2005 and that this would have had minimal costs implications. This is contested. At paragraph 50 of his replying affidavit the applicant states that he was given legal advice that issuing a Plenary Summons would likely have been met with an application for dismissal for want of prosecution if he did not file a Statement of Claim, and if he did file a Statement of Claim it would have proceeded to full trial. There was also always the possibility that his case would be fast tracked with the Murphy v Flood & Ors case. It was not likely that the applicant could issue a Plenary Summons and sit on his hands with no costs implications. 5.6 The principles applicable to applications to set aside leave are as follows
(ii) The leave procedure was intended to provide a filtering process; (iii) The applicant for the order to set aside carries a heavier burden than the original applicant for leave and has to show that leave should not be granted; (iv) The applicant at leave stage has a "low threshold" to meet and a "light" burden of proof and only has to show an arguable case; (v) The test for the applicant at leave stage is as laid out in G v Director of Prosecutions [1994} 1 IR 374: (a) has sufficient interest; (b) The facts on the affidavit if proved support a stateable ground; (c) The facts make an arguable case in law; (d) The application was made in the 6 month time limit; (e) The only effective remedy is through judicial review.
(b) He has a stateable case in that the facts averred to, if proved, were capable of demonstrating the respondent's costs refusal order was made ultra vires and in breach of fair procedures; (c) There is an arguable case, following Murphy v. Flood & Ors that the respondents acted ultra vires in (1) Making a finding of obstruction and hindrance; (2) basing the costs refusal decision on that finding and on the substantive findings of the Second Interim report. (d) The application was made within time; (e) Judicial review is the appropriate remedy in the case. Decision of the Court
6.2 The approach of the Courts to an application to set aside leave obtained has been set out in the following passage of Bingham L.J in R v Secretary of State for the Home Department, ex parte Chinoy (1992) 4 Admin. LR 7 [1992] COD 381, approved by the Supreme Court in both Adam and Iordache case and in Gordon v. Director of Public Prosecutions [2002] 2 IR 369. Bingham L. J stated as follows;-
I would however, wish to emphasise that the procedure to set aside is one that should be invoked very sparingly. It would be an entirely unfortunate development if the grant of leave ex parte were to be followed by applications to set aside inter partes which would then be followed, if the leave were not set aside, by a full hearing. The only purpose would be to increase costs and lengthen delays, both of which would be regrettable results. I stress therefore that the procedure is one to be invoked very sparingly and it is an order which the court will only grant in a very plain case. I am, however, satisfied, as I have indicated, that the court does have discretion to grant such an order if satisfied that it is a proper order in all the circumstances."
6.4 The relevant circumstances surrounding this case are not in dispute. The order for costs in question was made against the applicant on the 15th October, 2004. In making this order the chairman of the Tribunal relied upon a finding that the applicant had obstructed and hindered the work of the Tribunal. The applicant took the advice of solicitor and counsel and decided not to issue proceedings challenging this costs decision by the Tribunal. His decision was based upon the impecuniosity caused by the cost of his legal representation and his being advised it was unlikely he would succeed. He was aware that another party subjected to a costs order based on the same grounds of obstruction and hindrance had issued proceedings challenging the legality of that decision. 6.5 These other proceedings resulted in a decision of the Supreme Court delivered on 21st April, 2010. See Murphy v Flood. In this judgment the Supreme Court held that the same decision made on the same basis as in the applicants case was ultra vires the Tribunal. As a result of this decision the applicant resolved that he would ask the Tribunal to revisit and change its order for costs against him. He did this in writing on the 22nd July 2010. The Tribunal invited the applicant to make submissions. He did so and these were considered by the Tribunal. It gave its decision on the 7th March 2011 and refused to reconsider the order made in 2004. 6.6 The applicant resolved to challenge this decision and on the 7th June 2011 issued a plenary summons. On the 13th June 2011 an appearance was entered to this by the respondents who further on the 12th July 2011 issued a motion to dismiss those proceedings on grounds of delay and want of prosecution. The applicant responded to this by applying on 18th July 2011 for leave to seek the relief herein. This was granted ex parte. On the 29th July 2011 the respondents issued this motion to set aside that leave. The grounds for this motion are
(ii) Long delay. (iii) Proceedings an abuse of process, frivolous and vexatious. (iv) The interests of justice and the public interest. (v) Non disclosure. 6.8 (ii) Long delay,
(iv) The interests of justice and the public interest. 6.9 It is undisputable that the delay regarding the 2004 decision is very great and far outside that which would normally allow for an extension of time in judicial review proceedings. The test is a well known one and concisely described by Hardiman J. in BTF v. Director of Public Prosecutions [2005] 2 IR 559 at para 16;
6.10 I have to bear in mind that this application is one to set aside a leave granted. It is not the substantive hearing. Neither side has yet had the opportunity to deploy the full arsenal of weaponry they may wish to bring forth. I am therefore dealing with arguability rather than determining substantive issues. The real reason proffered by the applicant for the lengthy delay involved is his impecuniosity at the time, caused moreover he claims by his poorly structured appearances at the tribunal. He claims he was advised that any challenge to the 2004 costs decision would be unlikely to succeed. He says that he could not afford to take the chance. I can accept the arguability of those reasons as possibly excusing the undoubtedly inordinate delay. Whether they do or not is a matter for the substantive hearing.. 6.11 Even were these reasons to be found wanting in excusing the inordinate delay, the court would have to direct its inquiry into questioning where the balance of justice lay. In this case at this early stage in the proceedings it is possible to identify the real ground under this heading and consider if it is arguable. Does the apparent illegality of the 2004 decision make it a nullity. If it does, is it an injustice that such a decision could cost the applicant over €600,000 and leave him financially ruined as he claims. This certainly seems arguable. The balance of justice at this stage of the proceedings would appear to be in favour of the applicant. 6.12 A further consideration for the court is the merits of the applicants case. In GK v. Minister for Justice Equality and Law Reform [2002] 2 IR 418 the Supreme Court in considering an extension of time pursuant to s. 5 (2) (a) Illegal Immigrants (Trafficking) Act 2000 Hardiman J. observed that;
6.13 For all those reasons, although the delay period requiring justification at the substantive hearing stage is clearly inordinate, the questions of excusability and location of the balance of justice seem to me very arguable ones indeed. The facts of this case are extremely unusual. Perhaps therefore the courts attitude to extending time which normally looks at weeks or months rather than years might well be somewhat different. That is a matter to be decided at the substantive hearing. The application to set aside the leave granted is refused.
|