High Court of Ireland Decisions

1. By Order of the High Court dated the 25th day of September, 1996, the Applicant was given liberty to apply by way of application for Judicial Review for the reliefs set out in the said Order on the grounds set forth in the Applicant's Statement grounding his application for Judicial Review.

2. These reliefs were;

3. The following are the uncontested, or agreed, facts;

4. While, in his Statement dated the 24th day of September 1996 grounding his application for Judicial Review, the Applicant relied on a variety of grounds upon which such relief was sought, it became apparent during the course of the hearing and was conceded by Counsel for the Applicant that the sole ground upon which the Applicant was relying in support of his application for Judicial Review was that the first named Respondent had failed to act judicially or to accord the Applicant a fair hearing or basic fairness of procedures when he determined that service of the said Summons be deemed to be good and when he abridged the time for the entry thereof. In this regard, Counsel for the Applicant specifically abandoned the allegation that, when making the said Order of the 11th day of July 1996, the first named Respondent had acted without jurisdiction. However, in the circumstance that the service of the said Summons and the entry thereof in the Court list did not comply with the provisions of Rule 47(1) of the District Court Rules of 1948; a fact which was conceded by Counsel for the Respondents, and the Applicant's Solicitor had challenged the propriety of hearing the said Summons, Counsel for the Applicant submitted that, before the first named Respondent could adjudicate on the issues as to whether or not service of the said Summons should be deemed to be good and/or whether or not the time for the entry thereof should be abridged, the first named Respondent was obliged by law to invite, entertain and consider any evidence or argument which might be offered by the Applicant with regard to those issues that, by his failure to do so the first named Respondent did not act judicially and did not accord the Applicant a fair hearing or basic fairness of procedures. In particular, Counsel for the Applicant argued that, before adjudicating on the issues as to whether or not service of the said Summons should be deemed good and/or the time for entry thereof should be abridged, the first named Respondent should have afforded the Applicant's Solicitor the opportunity to refer to any circumstances (such as delay in issuing the said Summons and any prejudice that might flow from such delay) which might suggest that it would be inappropriate to deem service of the said Summons to be good. Furthermore, Counsel for the Applicant submitted that, in the circumstance that the Applicant's said Solicitor had advised the first named Respondent that he appeared on behalf of the Applicant solely for the purpose of submitting that the said Summons was not properly before the Court and, in response to a specific question in that behalf by the first named Respondent, confirmed that his appearance was without prejudice, the first named Respondent misdirected himself in law in holding that the fact of the Applicant's Solicitor's appearance before the Court was sufficient to cure any defect in the service of the said Summons. In support of his submissions, Counsel for the Applicant referred to a decision of the Supreme Court given in a case of Damien Duff -v- District Justice Mangan, Judge John Gleeson and the Director of Public Prosecutions (1994 1 ILRM at page 91); a case which was concerned with the question of the validity of the Summonses issued under the Road Traffic Acts, in which the Court held that, while a District Judge was acting within jurisdiction in determining that he could hear the case without an enquiry as to the complaints and the Summons, he exceeded his jurisdiction in then proceeding to hear the case. In the course of the Judgment given by the Court in that case, Mrs Justice Denham said "The question (the validity of the Summonses) having been raised by the Defence herein, it was for the District Court to hear evidence and determine the issue" . So, in the instant case; the Applicant's Solicitor having raised the question as to whether or not the Summons against the Applicant was properly before the Court, Counsel for the Applicant argued that, before adjudicating on the Summons, it was incumbent upon the District Court Judge to hear evidence and argument with regard to that issue. Moreover, while acknowledging that, in a case of The D.P.P. -v- Clein (1983) ILRM at page 76, the Supreme Court affirmed an Order of Gannon J. in the High Court wherein he stated

5. For the Respondents, Counsel submitted that, in the District Court, the challenge by the Applicant's Solicitor to the validity of the Summons issued against the Applicant was limited to questioning the jurisdiction of the Court to hear the Summons. In particular, Counsel for the Respondents pointed to the fact that, in the District Court, the Solicitor for the Applicant had not raised any issue with regard to fair procedures and that there was no evidence to suggest that he had been deprived of the opportunity of cross-examining witnesses, of leading evidence on behalf of the Applicant or of making any submissions to the Court which he might have considered to be appropriate. Accordingly, in the circumstance that the Applicant had now abandoned any challenge to the jurisdiction of the District Court to hear the said Summons and that there was no evidence to suggest that the first named Respondent had inhibited the Applicant's Solicitor in any way in the conduct of his case on behalf of the Applicant, the Applicant was not entitled to the relief sought in these proceedings. Moreover, while it would appear that the first named Respondent's decision to deem service of the said Summons on the Applicant to be good appears to have been based solely on the premise that the Applicant's Solicitor's appearance before the Court was sufficient to cure any defect in the service thereof; thereby, by implication, applying the principle laid down by the Supreme Court in D.P.P. -v- Clein , Counsel for the Respondents submitted that the learned District Court Judge would also have been aware that, by virtue of the provisions of Rules 13 and 23 of the District Court Rules, 1948, he had a discretion to enlarge or abridge any of the times fixed by those rules for taking any step or doing any act in any proceedings or to deem any step taken or any act done to be sufficient even though not taken or done in the time prescribed by those rules and that non-compliance with any of those rules would not render any proceedings void and, accordingly, would have been aware that he was entitled to make the Orders which are impugned. In this regard, Counsel for the Respondents referred to an unreported decision of the High Court delivered on the 16th day of December, 1994 in a case of Fred Le Gear -v- Judge Joseph Mangan and The Director of Public Prosecutions ; a case in which the arguments advanced on behalf of the Applicant therein are almost identical to the arguments advanced on behalf of the Applicant in this case but were rejected by the Court. Counsel on behalf of the Respondents also submitted that, even in the event that the Applicant's claim herein was successful, it would avail him nothing because, in that event, it would be open to the D.P.P. to issue a fresh Summons and, as Certiorari is a discretionary relief which is only granted in the interests of justice, no such interest would be served by granting the reliefs sought in this case.

6. From the accounts of them included in the Affidavits respectively sworn herein by the Applicant and by Guard Vincent Muldoon, I would accept that, on a literal interpretation of them, the submissions made by the Applicant's Solicitor to the first named Respondent in the District Court amounted to a challenge to the Court's jurisdiction. Moreover, I think that it is clear that, at no stage, did the Applicant's Solicitor complain of any want of fairness on the part of the learned District Court Judge in the procedures which he followed. However, while there is no doubt but that the Court had jurisdiction to deal with the matter and the Applicant's Solicitor was in error to suggest otherwise, I think that it is equally clear that, whatever the legal implications might have been, the thrust of the Applicant's Solicitor's submissions to the Court was that it should not entertain the Summons which had been issued against the Applicant for the reason that the service thereof did not comply with the District Court Rules. Moreover, I think that it is clear from the ruling made by the learned District Court Judge that, however the Applicant's Solicitor may have expressed himself, he, the learned Judge, appreciated that the challenge was not to his jurisdiction but was to the service and entry of the Summons and it appears to me that he dealt with it on that basis. Accordingly, while it would appear that the Applicant's Solicitor misinterpreted the legal implications of the failure to comply with the provisions of the District Court Rules with regard to the service and entry of the said Summons, it seems to me, that the learned District Court Judge was in no doubt about the true nature of the challenge which was being made to the service and entry thereof. Furthermore, while I accept, as Counsel for the Respondents has submitted, that the learned District Court Judge would have been aware of his powers under the District Court Rules to enlarge or abridge times fixed by those Rules for doing any Act in any proceeding and that non-compliance with those Rules did not render any proceedings void, I think that it is quite obvious from the terms in which the learned District Court Judge made his ruling against the Applicant's Solicitor that, in so doing, he was not relying on his powers under the District Court Rules but rather on the fact that, in his view, the presence of the Applicant's Solicitor before him cured any defect in service. In other words, as Counsel for the Applicant submitted, when making his ruling, the learned District Court Judge was thinking of the decision of the Supreme Court in D.P.P. -v- Clein rather than the District Court Rules. That being so, it seems to me, that the learned District Court Judge was in error because, given that the Applicant's Solicitor's sole purpose for attending the District Court on behalf of the Applicant was to challenge the validity of the Summons which had been issued against him, I think that it follows that, in the light of the Judgment of Johnson J. in the case of McGirl -v- District Justice McArdle , hereinbefore referred to, the Judgment of the Supreme Court in D.P.P. -v- Clein has no application in this case. Furthermore, in the circumstance that the learned District Court Judge did not purport to rely on his powers under the District Court Rules when giving his ruling against the Applicant's Solicitor, neither do I think that the Judgment of Barron J. in Le Gear -v- Judge Joseph Mangan , also hereinbefore referred to, has any application in these proceedings because that case turned on the application of the District Court Rules.

7. In the light of the foregoing, I think that the learned District Court Judge was in error when he concluded that he was entitled to deem service of the said Summons good and to enlarge the time for the entry thereof purely on the basis of the Applicant's Solicitor's appearance in Court before him. In any event, it seems to me that, when the validity of the said Summons was challenged by the Applicant's Solicitor, an issue was raised which fell to be determined by the learned District Court Judge and, having regard to the decision of the Supreme Court in Duff -v- Mangan , he was not entitled to determine that issue without an enquiry with regard to all the circumstances under which the Applicant claimed that the Summons which had been issued against him should not be proceeded with. This the learned District Court Judge did not do and, accordingly, I think that he exceeded his jurisdiction in making the impugned Order.

8. While it may well be that, as a result of the Order which I propose to make in this case, the Director of Public Prosecutions will issue a fresh Summons against the Applicant thereby negativing the effect of my Order, it does not, in my view, follow, as Counsel for the Respondents has submitted, that these proceedings are of no avail to the Applicant because, of course, it is possible that the Director of Public Prosecutions may, despite my Order, decide not to proceed any further against the Applicant, in which event he will have achieved a considerable benefit. Accordingly, I reject the submission that the interests of justice would not be served by my granting the relief sought herein.

9. I do not consider that this an appropriate case for an Order for Prohibition. However, I will make an Order of Certiorari quashing the Order of the first named Respondent made on the 11th July, 1996.