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Cite as: [2001] 3 IR 431, [2001] IEHC 73

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McCann v. Groarke [2001] IEHC 73 (3rd May, 2001)

THE HIGH COURT

JUDICIAL REVIEW

2001 No. 230 J.R.

BETWEEN

JOHN McCANN

APPLICANT

AND

HIS HONOUR, JUDGE RAYMOND GROARKE AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

Judgment of Mr Justice Herbert delivered the 3rd day of May 2001

1. In this case the Applicant for Judicial Review, John McCann, on the 18th of June 1999 pleaded guilty, at Drogheda District Court, to a charge of possession of a controlled drug and to another charge of possession for the purpose of selling or supplying to others. He was sentenced to two concurrent terms of imprisonment of one month and nine months. He immediately entered an appeal against both conviction and sentence, ( Attorney General (Lambe) -v- Fitzgerald , (1973) I.R. 195). This Appeal came on for hearing before the First Named Respondent sitting at Dundalk on the 5th of October 1999.

2. On that date, according to the Affidavit of Detective Garda M. MacFadden sworn on the 3rd of November 2000, she was spoken to by, “Mr Ronan Munro of Terence Lyons Company Solicitors”, who are the Solicitors for the Applicant. Mr Munro asks her if she would consent to the Appeal being adjourned to the March 2000 sittings of the Circuit Court in Dundalk to enable the Applicant to undergo urineanalysis testing with a view to establishing that he was no longer taking controlled drugs. The Appeal was duly adjourned by the First Named Respondent by Consent of the Parties, to the March 2000 sittings of the Court at Dundalk. Detective Garda MacFadden also avers that, “the Applicant was present in Court on the 5th of October 1999”, when she spoke to Mr Munro and also when the Appeal was adjourned to the March sitting of the Circuit Court in Dundalk. Mr Munro, I was informed by Counsel for the Applicant is in fact a member of Junior Bar who was instructed on the occasion by Terence Lyons and Company Solicitors, to appear for the Applicant.

3. The adjourned Appeal duly appeared in the Dundalk List of Cases for Tuesday the 21st of March 2000 at 10.30 a.m.. On the case being called there was no appearance by the Applicant or by any Solicitor on his behalf.

4. It is accepted by Mr Declan Fahy, Solicitor, of Terence Lyons and Company, in an Affidavit sworn by him on the 22nd of November 2000, that the date of the commencement of the March sitting of the Circuit Court at Dundalk, - namely, the 21st day of March 2000, - is to be found in the Iris Oifigiuil and in the Law Society of Ireland Directory for the year 2000. Neither the Applicant nor any representative of the Firm of Terence Lyons and Company sought a copy of the Court List or communicated in any way with the Office of the Circuit Court or with Detective Garda MacFadden the Prosecuting Officer, for the purposes of ascertaining, - if there was any doubt in the matter, - the date upon which the adjourned Appeal was to be mentioned or heard.

5. In the Affidavit of the Applicant sworn on the 8th of May 2000 he avers:-

“That in my absence my Appeal was struck out and the Order of the District Court of conviction and sentenced affirmed and a warrant duly issued.

6. Mr McCann was not in Court on the occasion and no basis for this averment is set out by him. He begs to refer to the Order of the Circuit Court made on the 21st of March 2000 when produced.

7. Mr Declan Fahy in his Affidavit sworn on the 22nd of November 2000 begs to refer, “ to certified copy Orders made on the 21st day of March 2000”, which he then exhibits in his Affidavit marked with the letter “C”. What are exhibited are Certified Copies of the “Conviction and Order” of the District Court on the 18th of June 1999 upon each of which someone has written the following legend:-

“Order was affirmed at Dundalk Circuit Court on 21st March 2000”.

8. No Order of the First Named Respondent or Certificate of the County Registrar to the District Court Clerk setting out the terms of the Order made by the First Named Respondent are exhibited on Affidavit or produced to the Court and no explanation is given for this failure.

9. Order 84 Rule 26 (2) of the Rules of the Superior Courts, 1986, provides as follows:-

“Where the relief sought is or includes an Order of Certiorari to remove any proceedings for the purpose of quashing them, the Applicant may not question the validity of any Order, warrant, committal, conviction, inquisition or record, unless before the hearing of the Motion or Summons he has lodged in the High Court a copy thereof verified by Affidavit or accounts for his failure to do so to the satisfaction of the Court hearing the Motion or Summons. If necessary, the Court may order that the person against whom an Order of Certiorari is to be directed to make a record of the judgment, conviction or decision complained of.”

10. In these circumstances the Applicant is not entitled to question the validity of any Order of the First Named Respondent allegedly made on the 21st March 2000. I have only hearsay evidence that any Order was made by the First Named Respondent on that date allegedly affirming the Conviction and Order of the District Court of 18th June 1999, and that is only if I assume that the hand written legend to which I have already referred, and which is not dated initialled or identified in any way, formed part of the original of the District Court Order at the time of Certification of the Copies offered to this Court as, “true copies of the original”. Notwithstanding this finding I propose to deal with the application on the assumption that the Order alleged was before the Court because of the importance of the issue raised.

11. Counsel for the Respondents submitted that the Applicant had entered into a recognisance to prosecute his appeal and attend in person at the sitting of the Circuit Court or any adjournment thereof until such appeal had been determined. The Applicant in his Affidavit sworn on the 8th of May 2000 simply avers that he was:-

“Not aware of its listing nor was I notified of its listing nor were my Solicitors Terence Lyons and Company Solicitors”.

12. This is simply not acceptable: the Applicant and his Solicitors were aware that the matter was adjourned at his request to the March 2000 sitting of the Circuit Court at Dundalk, and one or other of them could readily and should have ascertained the relevant day of that month upon which it was necessary for the Applicant to attend.

13. It is accepted by the Respondents in the Affidavit of Detective Garda MacFadden as being correct what is stated by Mr Fahy in his Affidavit, that the Circuit Court Office in Dundalk had a practice of sending a letter to “out of town Solicitors”, to inform them of the date for the appeal. Paragraph 7 of the Affidavit of Mr Fahy sworn on the 22nd of November 2000 is in the following terms:-

“I beg to refer to paragraph 11 of the Affidavit of Maureen MacFadden in which she states that it was the duty of this Deponent as Solicitor for the Applicant herein to attend at the March Session of the Dundalk Circuit Court in order to prosecute the Applicant’s Appeal even if such should entail a wait in Court for a number of days. I say that, having regard to the practice of the Dundalk Circuit Court in respect of out of town Solicitors and the experience of this Deponent that cases, adjourned to a particular session of the Circuit Court, are on occasion not reached in that Session and must be further adjourned to a subsequent Session, there was no such duty on this Deponent to attend the Court in the manner suggested. Furthermore, I say that, notwithstanding this, the duty of the Respondents to inform the Applicant herein and the Solicitor for the Applicant herein of the date for hearing of the Applicant’s Appeal had not been discharged.”

14. I totally reject this submission. In my judgment it was at all times the duty of the Applicant and therefor of his Solicitors to prosecute this Appeal and to take active measures to appraise themselves of the adjourned date for hearing in March 2000 and to be present on that date and on any other date to which the Court might have occasion to further adjourn the Appeal. The Circuit Court Office in Dundalk was under no duty whatsoever to assume the function of a watchdog for the Applicant or his Solicitors as regards the date of the Appeal.

15. In my judgment, an informal general practice of notification of this nature to what are termed, “out of town Solicitors”, of the, “for mention”, “call over” or hearing dates of matters listed before the Circuit Court sitting in Dundalk does not justify a legitimate expectation in such persons that such notice will always be given and in time and to the correct party so as to render any vigilance on their part unnecessary. In my judgment a voluntary laudable practice of this nature, even if its sole purpose and object was, “to allow for the effective and efficient administration of justice by the Court”, could not in itself reverse the role of the Appellant as the person whose obligation it is to do all things necessary to prosecute his Appeal and for this purpose to take active steps to ascertain the hearing date and to ensure his presence before the Court on that date.

16. In my judgment there was no failure to afford fair procedures in this case. The First Named Respondent was acting intra vires his powers in striking out this Appeal, (if that is in fact what he did), in default of appearance ( R. (McMonagle) -v- Donegal Justices , (1905) 2 I.R. 644; The State (Dunne) -v- Martin , (1982) I.R. 229 (Supreme Court) per Henchy, J.). If the Applicant was not heard on this occasion it was entirely due to his own failure to attend before the Court or alternatively or additionally due to his Solicitors failure to notify him of the adjourned date or to appear before the Court. In the absence of some compelling evidence which would establish that the decision of the First Named Respondent was in the circumstances irrational, unreasonable or tainted with bias, - and there is no such evidence to be found in this case, - the proper administration of justice must require that the Court has and utilises the power to strike out or to dismiss an appeal for default of appearance on the part of the Appellant or anyone on his behalf.

In R. -v- The Home Secretary , ex parte Al-Mehdawi, (1990) 1 AC 876 at 892, Lord Bridge of Harwich, (Lord Roskill, Lord Brandon of Oakbrook, Lord Oliver of Aylmerton and Lord Goff of Chiveley, concurring), held as follows:-

“It has traditionally been thought that a tribunal which denies natural justice to one of the parties before it deprives itself of jurisdiction. Whether this view is correct or not, a breach of the rules of natural justice, is certainly a sufficiently grave matter to entitle the party who complains of it to a remedy ex debito justitiae . But there are many familiar situations where one party to litigation will effectively lose the opportunity to have his case heard through the failure of his own legal advisors, but will be left with no remedy at all except against those legal advisors. I need only instance judgments signed in default, actions dismissed for want of prosecution and claims which are not made within a fixed time limit which the Tribunal has no power to extend. In each of these situations a litigant who wishes his case to be heard and who has fully instructed his Solicitor to take the necessary steps may never in fact be heard because of his Solicitor’s neglect and through no fault of his own. But in any of these cases it would surely be fanciful to say that there had been a breach of the audi alteram partem rule . Again, take the case of a County Court Action where a litigant fails to appear at the hearing because his Solicitor has neglected to inform him of the date and consequentially judgment is given against him. He can at best invite the Court in its discretion to set aside the judgment and it is likely to do so only on the terms that he should pay the costs thrown away. Yet, if it can be said that he has been denied natural justice he ought in principle be able to apply for Certiorari to quash the judgment which, if he is personally blameless, should be granted as a matter of course.
These considerations lead me to the conclusion that a party to the dispute who has lost the opportunity to have his case heard through the default of his own advisors to whom he has entrusted the conduct of the dispute on his behalf, cannot complain that he has been the victim of a procedural impropriety or that natural justice has been denied him at all events when the subject matter of the dispute raises issues of private law between citizens. Is there any principle which can be invoked to lead to a different conclusion is one of public law and where the decision taken is of an administrative character rather than the resolution of a lis inter partes?. I cannot discover any such principle and none has been suggested in the course of argument.” (page 898).

17. I do not consider that there is anything in our constitutional jurisprudence which would render the application of these principles inappropriate in the present and in similar cases of the type illustrated by Lord Bridge of Harwich. In my judgment there is no evidence offered by the Applicant in this case, upon whom the onus of proof lies, which would satisfy me on the balance of probabilities that the First Named Respondent failed to see that the Applicant was not subjected to a risk of injustice. The facts in the case of Nevin -v- District Judge Timothy Crowley and the Director of Public Prosecutions , (17th of February 2000: per Murray, J., unreported judgment available), to which I was referred by Counsel for the Applicant, were entirely different to those of the present case and that case is accordingly of no assistance to the Applicant.

18. I do not consider that the other authorities to which the Court was referred by Counsel for the Applicant, namely S. -v- S. ,( 1983) I.R. 68: The State (Healy) -v- Donoghue and Others , (1976) I.R. 325: Gutrani -v- The Minister for Justice , (1993) 2 I.R. 427: Sweeny -v- District Judge Brophy and the Director of Public Prosecutions , (1993) 2 I.R. 202, and The State (Abenglen Properties Limited) -v- The Right Honourable The Lord Mayor, Aldermen and Burgesses of Dublin , (1984) I.R. 381, advance the Applicant’s cause in this matter.

19. At paragraph 8 of his Affidavit sworn on the 8th of May 2000, Mr McCann avers that his Solicitors were making application to reinstate his Appeal before the Circuit Court at Dundalk on the 20th of June 2000, the next sessions there listed, or thereafter. It may well be that the First Named Respondent is now functus officio, but this might well depend upon the exact nature of the Order made by the First Named Respondent on the 21st of March 2000, ( The State (Dunne) -v- Martin , (1982) I.R. 229 at 231-3, per Henchy, J.). However this is not a matter with which this Court should be concerned on this application for Judicial Review. The fact that he may have another remedy is no bar to the Applicant seeking Judicial Review.

20. This Application is dismissed.