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Zambra v. McNulty [2002] IEHC 21 (21st March, 2002)

THE HIGH COURT

Record No. 2001/757JR

BETWEEN

JOSEPH ZAMBRA

APPLICANT

AND

JUDGE McNULTY AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

JUDGMENT of Mr. Justice William M. McKechnie delivered the 21st day of March 2002

Part II of the Criminal Procedure Act, 1967, sets out the procedures which apply when an accused person stands charged before the District Court with an indictable offence or offences. Unless there is a plea of guilty or unless the charges are to be dealt with summarily, such a person must have on him served, what is described as a Book of Evidence and subject to any waiver, the presiding District Judge must conduct a preliminary examination and must make a decision thereon. Since the 1st October, 2001, (Criminal Justice Act 1999 (Part III) (Commencement) Order 2001: S.I. 193/2001) this part of the 1967 Act, in its essential form, has been repealed and in it’s place now stands new provisions as inserted by Sections 8-10, of the Criminal Justice Act, 1999. In order to cover the change over in this regime, Section 23, in the margin described as transitional, was enacted, which section in it’s material terms reads as follows:-

“23. - If, before the commencement of this Part, any steps have been taken under Part II of the Act of 1967 in relation to the prosecution of an accused person, the applicable provisions of the enactments amended or repealed by this Part shall continue to apply to all matters connected with or arising out of the prosecution of the accused, as if those enactments had not been so amended or repealed”.

1. So, Sections 5-20 inclusive, continue to apply but only if prior to the said commencement date “ any steps have been taken under Part II of the Act of 1967 in relation to the prosecution of an accused person”; otherwise the applicable provisions will be those as contained in the 1999 Act. It is the correct interpretation of this recited phrase which is the sole issue in this case.

On the 8th February, 2001, the applicant in the above entitled Judicial Review proceedings, appeared before Dublin District Court, No 46, on a charge of false imprisonment contrary to Section 15 of the Non-Fatal Offences Against the Person Act, 1997. He was remanded on bail and the case adjourned to the following day, namely the 9th February, 2001. On the 18th May, following two further remands, and whilst still awaiting a direction from the DPP as to how this charge should be proceeded with, the presiding District Judge as against the Director, marked on the case that “time was running”. On the next adjourned date, namely the 17th July, the applicant was charged with a no. of further offences, to wit - the unlawful killing of one Noel Heffernan contrary to common law, assaulting the said Mr. Heffernan causing him harm contrary to section 3 of the 1997 Act, and thirdly, allowing himself to be carried in a vehicle without the consent of the owner or other lawful authority contrary to section 112 of the Road Traffic Act, 1961 as amended. On that occasion the State Solicitor informed the District Judge that the DPP had issued a direction that all charges, including that originally preferred, were to proceed by way of indictment. Accordingly, the case was further adjourned to the 25th September, 2001, so that the required Book of Evidence could be served. On that date, as no such book was available, an enlargement of time for it’s service was sought and the accused further remanded to the 23rd October. On the said 23rd October the required Book was duly served and copies thereof furnished to the District Court.

On the service of this Book an issue arose as to whether, by virtue of the aforesaid section 23, the former provisions of the 1967 Act continued to apply or whether in the circumstances these had been superseded, and in relation to this case the new provisions of the 1999 Act were now in place. Having heard submissions from both parties the learned District Judge took the view, that “the steps ” envisaged by section 23 could not be purely procedural in nature, but rather had to be substantive in origin such as the service of a Book of Evidence. Being of the opinion that no such step, as described by him, had in fact taken place prior to the 1st October, 2001, he concluded that the 1999 Act applied which meant that the accused was not entitled to have in the District Court a preliminary examination under section 7 of the 1967 Act. He therefore made the Order which is the subject matter of this application.

Being dissatisfied with this ruling and the resulting return for trial, the applicant, by Order dated the 12th November, 2001, obtained leave from this Court to challenge the aforesaid decision and did so on the grounds therein specified. In essence an order of Certiorari was now sought to quash the decision of the 31st October 2001, with this court also being asked to remit the matter to the District Court so that a Preliminary Examination could be carried out under the 1967 Act. The grounds upon which this challenge was permitted were that the Respondent Judge erred in law in not conducting such a preliminary examination and that by not so doing he had no jurisdiction to send Mr. Zambra forward to the Circuit Court for trial on any of the aforesaid charges.

On behalf of the applicant it is now claimed that any one or more of the following, constitute the taking of a necessary step under section 23 and so as a result the formal procedure under the 1967 Act has been preserved. The first was the Judge’s decision made on the 18th day of May 2001 to “mark time as running” as against the D.P.P., the second was the communication through the State Solicitor on the 17th of July of the DPP’s direction as to the mode of trial of these charges, the third was the subsequent remand of the accused by the District Judge for the service of a Book of Evidence with the fourth and final suggested step being the 2nd remand, marked peremptorily, of the 25th of September 2001 when the service of the Book was still outstanding.

6. The first named Respondent quite correctly in my view, did not appear and was not represented in these judicial review proceedings with the result that the “ legitimus contradictor” was the DPP. On his behalf it was submitted that under Part II of the 1967 Act, the first act or event which could properly be described as the taking of a step under sections 5 - 20 inclusive, was the service of a Book of Evidence and not merely the existence of circumstances from which the next succeeding requirement was the service of such a Book. If this proposition was correct and was accepted by the Court, then that would be sufficient to dispose of the case but on the wider issue, if it had been necessary to consider when the procedures under Part II of the Act commenced, it would be the position of the DPP that the same co-incided with the commencement of the preliminary examination. That particular issue was discussed in The State (Hogan) -v- Carroll [1981] ILRM 25 and The State (Williams) -v- Kelleher [1983] IR 112, it being clear from such cases that a District Judge had no jurisdiction to commence or embark upon a preliminary examination unless and until the requirement for the service of a Book of Evidence had been satisfied. Since in fact no such Book was served in this case prior the 1st October 2001, the argument goes that no step was taken under the relevant Part II. Hence the applicability of the new procedures.

7. Part II of the 1967 Act which is headed “Preliminary Examination of Indictable Offences in the District Court”, has the following as its opening provisions:-

“5. - (1) Where an accused person is before the District Court charged with an indictable offence then, unless the case is being tried summarily or the accused pleads guilty, the justice shall conduct a preliminary examination of the charge in accordance with the provisions of this Part.

(2)References in any enactment to the preliminary investigation of an indictable offence shall be construed as references to the procedure set out in this Part

6. - (1) The prosecutor shall cause the following documents to be served on the accused-

(a) a statement of the charges against him,

(b) a copy of any sworn information in writing upon which the proceedings were initiated,

(c) a list of the witnesses whom it is proposed to call at the trial,

(d) a statement of the evidence that is to be given by each of them, and

(e) a list of exhibits (if any).

(2) Copies of the documents shall also be furnished to the Court.

(3) The accused shall have the right to inspect all exhibits.

(4) The prosecutor may cause to be served on the accused and furnished to the Court a further statement of the evidence to be given by any witness a statement of whose evidence has already been supplied.

7. - (1) The justice shall consider the documents and exhibits, any deposition or statement taken in accordance with this section and any submissions that may be made by or on behalf of the prosecutor or the accused

(2).............

(3).............

(4).............”

8. - (1) If the justice is of opinion that there is a sufficient case to put the accused on trial for the offence with which he has been charged, he shall send him forward for trial.

(2) If the justice is of opinion that there is a sufficient case to put the accused on trial for some indictable offence other than that charged, he shall cause him to be charged with that offence, proceed in accordance with section 7 (4), which shall have effect with the omission of the words “if he is sent forward for trial”, in paragraph (a), and, unless section 13 applies, send him forward for trial.

(3) Subsections (1) and (2) are subject to the provisions of section 2 of the Criminal Justice Act, 1951, which relates to minor offences.

(4) ...............

(5) If none of the foregoing provisions applies, the justice shall order the accused to be discharged as to the offence under examination. ”

(6) ...............”

8. In addition section 13 of the 1967 Act should also be noted. Under that section, which applies to all indictable offences except those specified in subsection (1), the District Court is given power to deal with an accused person who pleads guilty in a certain way. Subsection (2) as amended reads:-

“13 (2), If at any time the District Court ascertains that a person charged with an offence to which this section applies wishes to plead guilty and the Court is satisfied that he understands the nature of the offence and the facts alleged, the Court may -

(a) with the consent of the DPP, deal with the offence summarily, in which case the accused shall be liable to the penalties provided for by subsection (3), or

(b) if the accused signs a plea of guilty, send him forward for sentence with that plea to a court to which, if he had pleaded not guilty, he could lawfully have been sent forward for trial”.

2. And finally the jurisdiction of the Court under section 2 of the Criminal Justice Act, 1951 is not affected by the power given to a District Judge under this said section 13.

9. It is clear from section 5(1), that the District Court has no function with regard to the provisions of Part II of the 1967 Act, unless there is before that Court an accused person charged with an indictable offence. Whether that person appears as a result of an arrest, charge and caution or by way of summons is irrelevant, as indeed it is, even if his appearance should come about as a result of some illegal means. See Davitt P. in The State (Attorney General) -v- Fawsitt [1955] IR 39 at p 413 where, at the conclusion of the relevant passage the then President said “Even if he is brought there by an illegal process, the court’s jurisdiction is nonetheless effective.” That comment is of course general and is subject to the qualifications specified in Killeen -v- Director of Public Prosecutions [1997] 3 IR 218 and reaffirmed by the Supreme Court in The DPP (Ivers) -v- Murphy [1999] 1 IR 98. No issue in this regard arises in the present case as it is evident that the applicant at the relevant time was lawfully before the District Court and was so on charges of an indictable nature.

10. That being the position therefore then “unless the case is being tried summarily or the accused pleads guilty” (sec 5 (1)), or there is a waiver by him (sec 12), the judge must conduct a preliminary examination of the charge or charges in question. By the use of the word “shall” it is clear that where the facts and circumstances call upon the District Judge to do so, it is mandatory upon him to carry out such a preliminary examination, there being no discretion in this regard. The reference “to the case being tried summarily” is most probably a reference to section 2 of the Criminal Justice Act, 1951 though it should be noted that there are also comparable provisions in later statutes dealing with specific offences, an example of which is section 12 of the Criminal Law (Rape) Act 1981 as amended by section 16 of the amending Act of 1990. Under this section 2, as amended, inter alia, by section 19 of the 1967 Act and by section 21 (5) of the Criminal Law (Jurisdiction) Act 1976, the District Court may on certain conditions try summarily a person charged with any offence specified in the first schedule thereto. The conditions for summary trial are:-

“(i) That the Court is of opinion that the facts proved or alleged constitute a minor offence fit to be tried summarily, and

(ii) that the accused, on being informed by the Court of his right to be tried by jury, does not object to being tried summarily”.

3. In addition in the case of certain offences, sometimes only where the value of the property involved exceeds a certain amount, the DPP has to consent to such a trial (see p. 227 of Ryan and Magee, Irish Criminal Process). If in any given case these conditions should exist then Part II of the 1967 Act would not apply.

11. The other exception mentioned in section 5 (1) is where an accused person pleads guilty before the District Court. He can do so and avail of section 13 of the 1967 Act in relation to all indictable offences save for those set forth in section 13(1) of the Act. If he does, the District Court, again in certain circumstances, may deal with the offences in a summary way or alternatively can send the accused forward for sentence to the appropriate Court with the plea of guilty attached thereto. See subsection (2). Whichever course is taken, once he has so pleaded and has been sent forward, even if that plea should later be withdrawn, than, as with a case being tried summarily, the provisions of Part II of the 1967 Act would not apply. It should be noted that this section 13 has no effect on section 2 of the 1951 Act.

12. There is no dispute in this case but that had a Book of Evidence been served, prior to October 1st, that fact, for the purposes of section 23 of the 1999 Act would have constituted a step taken under Part II of the 1967 Act. Equally so there is no dispute but that in the absence of a Book, a District Judge cannot enter or embark upon a preliminary examination and a fortiori cannot of course make a decision thereon under section 8 of the Act. See The State (Shannon) -v- Ó hUadhaigh [1975] IR 98. In The State (Hogan) -v- Carroll , supra, Mr. Justice Henchy giving the Court’s judgment, made the position quite clear and confirmed with certainty that in the absence of a Book of Evidence the Judge has no jurisdiction to make a decision under section 8. In circumstances where the DPP indicates that no evidence will be offered by the prosecution, the correct order for the Judge to make, is not one under section 8 (5) which is to discharge the accused person on the merits of the case, but rather is one striking out the offences for want of prosecution. A similar view was also taken by the Supreme Court in The State (Williams), supra. Therefore there is no doubt but that prior to the 23rd October, 2001, the Respondent District Judge would have had no jurisdiction to commence a preliminary examination under section 7 or to make any Order in consequence thereof.

13. Apart from the service of a Book of Evidence there are also a very considerable number of other steps capable of being taken under Part II of the Act which were not so engaged in, in this case. For example:-

- the making of witness orders (section 9)

- the issuing of witness summonses (section 10)

- the service of additional documents upon an accused person (section 11)

- the waiver of a preliminary examination (section 12)

- the taking of further depositions (section 14)

- the inclusion of further counts on the indictment (section 18).

4. With the exception of section 12, all of the other matters herein mentioned would appear to be subsequent in point of time to the service of a Book of Evidence. In any event as I have said none of these were so taken.

14. The 1999 Act does not define or describe what would constitute “a step” for the purposes of section 23. The section itself does not seem to restrict the meaning of “any step” but it does circumscribe its scope by indicating that the same must be taken under Part II of the 1967 Act and must be in relation to the prosecution of an accused person. Otherwise the relevant words are unqualified. The step itself therefore, in my view, at least in a prima facie way, may be either procedural or substantive, may be taken at different times and may be taken by any party or by the Court itself. See paragraph 13 above. However any such step must be clear and perceivable, and when in existence must be capable of definite ascertainment. Otherwise great uncertainty and confusion would result. The section could have but did not specify an act, an event or a time by which one could determine, without doubt, when the new procedures would apply. It could have continued the repealed provisions in relation to all cases which were in being or had commenced on or prior to the relevant date. It could have identified the service of a Book of Evidence as the crucial event or the commencement of a hearing under section 7 or indeed the making by the District Judge of an Order under section 8. Other instances resulting in greater certainty could have been identified. The draftsmen however did not do so but instead chose the method above mentioned. It is that therefore which this court must deal with and must so construe.

15. In the first instance I am quite satisfied that the arrest, charge and caution of a person with an indictable offence and the bringing of that person before the District Court, howsoever achieved, are undoubtedly steps in the prosecution of an accused person but are not steps taken under Part II of the 1967 Act. Their legal justification stands apart from and outside this Act. In any event section 5 (1), as a necessary precondition for it’s operation is predicated on there being, before the District Court an accused person charged with an indictable offence. Secondly the power of a District Judge, at least in general, to transfer or adjourn the transaction of any business to another occasion or to another place within his or her District, is likewise in my view not based on the 1967 Act; see section 27 (3) of the Court of Justice Act, 1953, and Order 2 of the District Court Rules 1997 (SI 93/1997). Thirdly equally so with what type of indictable offence is capable of being tried summarily and in respect of those so capable what the qualifying conditions are; see, inter alia, section 2 of the 1951 Act. As appears from the above one such condition, in many instances is the consent of the D.P.P. When required, the giving of this consent is necessary so that the Court can decide whether or not such offences are triable in a summary manner. That requirement as to consent is sourced in general terms in the 1951 Act and in specific terms in other particular Statutes. It is not however in my view contained within Part II of the 1967 Act and the power to give or withhold such consent derives no independent existence from such part. This notwithstanding several references in Part II to section 2 of the 1951 Act. Section 8 of the 1967 Act simply applies the provisions of section 2 to the circumstances outlined in the preceding subsections (1) and (2). Section 13(5) simply preserves intact for the Court the jurisdiction which it has under the 1951 provision with section 19 comprising a straightforward amendment thereto. Section 20 in this context is not relevant. Accordingly, in my opinion the conditions which must exist before the District Court is capable of trying an indictable offence in a summary manner are not part of the 1967 Act, with the result that the decision itself on the part of the DPP as to consent could not be said to have been taken under the said Criminal Procedure Act.

16. However that consent and the communication of it plays an important role in the operation of the section 5(1). It will be recalled that the Judge must conduct a Preliminary Examination “ unless the case is being tried summarily or the accused pleads guilty”. Therefore a position must be taken on these two issues or more accurately on the first, there being no question in this case of the accused pleading guilty, before it is known whether the mandatory nature of the section takes affect. Several people may have an input into this process. The DPP, if consent is required to the case being tried summarily as well as the accused and the trial Judge. If there is a plea of guilty the main focus is on the accused and the Judge. But at all times a decision is required on whether to rule in or rule out the possibility of the indictable offence being tried summarily or the accused pleading guilty in respect thereof. It is only when that is made, that a District Judge knows with certainty the future course of such proceedings and whether a Preliminary Examination is or is not required. Equally so when made, the DPP will know whether a Book of Evidence is required and the accused, his rights in respect thereof.

17. That judicial decision in my view is one for the Trial Judge, under the 1967 Act and in the context of whether a case is to be tried summarily, is in my opinion a step taken under Part II of that 1967 Act and is one in relation of the prosecution of an accused person. It is, what ultimately invokes the operation of the essential provisions of Part II. It has or its making has the consequences of establishing rights and imposing duties. These not only on the DPP and the accused person, but also on the Court itself, it being now mandatory on the Judge to conduct a Preliminary Examination under section 7. It facilitates in a significant way the onward movement and direction of the prosecution of an accused person. I therefore have no doubt but that such a decision taken before the specified date has the effect of preserving for that accused the procedures available under the 1967 Act. This decision may take the form of a simple order, or more often I suspect, the form of the accused being remanded for the service of a Book of Evidence which certainly would indicate that the Court had come to a conclusion that the case would not be tried summarily. Whichever form such a decision may take, its existence in substance, is I am satisfied and as I have said, the taking of necessary step under section 23 of the 1999 Act.

18. In this case that decision was taken on the 17th of July 2001, well before the commencement date on and from which Part III of the 1999 Act came into effect. It follows therefore that in my view the order made by the learned District Judge, which is impugned in these proceedings, was made ultra vires the powers and jurisdiction vested upon him and accordingly is null and void and of no effect. This conclusion of the Court would be sufficient to dispose of this case but as other matters were canvassed in submissions it is only correct that I should express a view thereon. It should be said prior to so doing, that if the pre conditions which are specified in section 5 (1) were not in fact so stated and if as a result the section operated without the words “unless the case is being tried summarily or the accused pleads guilty”, then in such circumstances I could not of course have come to the conclusion which I have. This is because a statutory direction to hold a Preliminary Examination is not the same as and cannot be equated with the holding of the examination itself or the necessary preliminaries thereto.

19. In addition to the order of the District Court made on the 17th of July 2001, constituting a step for the purposes of section 23, there is in my view at least one further event which equally constitutes such a step, which event also happened prior to the service of the Book of Evidence. As I have said previously the adjournment of a case simpliciter, for example the adjournments of February through to May in the case, is not in my opinion a step under Part II of the 1967 Act. But an order enlarging the time for the service of a Book of Evidence, whether coupled with or without an adjournment for that purpose, is in my opinion such a step. In considering this matter I believe that I am also entitled to take into account, with Part II of the 1967 Act, the relevant Rules of Court which give effect to its provisions. Order 24 of the District Court Rules is in point. That order is headed “Summary Trial and Preliminary Examination of Indictable Offences”. Rule 10 (1) reads:-

“10. (1) The documents specified in section 6 (1) of the Act shall be in accordance with .... and shall be served personally upon the accused at the earliest opportunity, but, save with the leave of the Court, shall not be served later than thirty days after the first appearance of the accused before the District Court where the offence is not a scheduled offence or later than thirty days after the accused has elected for trial by jury where the offence is a scheduled offence. In this rule “scheduled offence” has the meaning assigned to it under section 2 of the Criminal Justice Act 1951”.

5. The thirty day period referred to in this case commenced on the 17th of July 2001. As of the next remand date of the 25th of September no Book of Evidence had in fact been served. An enlargement of time was therefore required and I must assume was therefore made. Consequently I believe that when this Rule is read with the 1967 Act, that enlargement of time also constitutes a step under the said section 23 of the 1999 Act.

20. As is clear from the above, the first event in point of time, which I have identified as constituting a qualifying step was the court’s decision made on the 17th of July 2001. The argument has also been made in these proceedings, that the Judge’s decision “to mark time as running” (18/5/01) and “to mark the case peremptorily against the DPP” (25/9/01) also constitutes a sufficient step, as does the decision of the DPP as to the mode of trial and it’s subsequent communication to the District Judge. In my view the various indications of the Trial Judge, whatever form they took, that time was becoming an increasing problem for the DPP could not be said to have been a step taken under the 1967 Act. This because a District Judge’s power and jurisdiction to deal with his list is quite independent of this Act. The second part of this argument is more troublesome. As previously stated the power of the DPP to consent is not based on the 1967 Act and therefore in itself is not sufficient for Sec 23. His position in this regard however and in particular it’s communication to the District Court, play an important role quite evidently in the operation of section 5. His decision as envisaged by and for the purposes of section 5, seems to be an affirmative one only namely one to consent. No decision is required if the indictable offence is not to be tried summarily. This would seem to follow from the wording of sub section 1 where a prosecution on indictment is contemplated “unless the case is being tried summarily or the accused pleads guilty”. So a formal decision is required only in one set of circumstances. The communication of the decision when made can be surrounded with great ambiguity. It can, in accordance with section 20 of the 1967 Act, be conveyed in writing or orally by the person prosecuting on the DPP’s behalf. There is however no specific time limit within which such a decision must be made or communication. There is therefore in my view the possibility of great uncertainty arising if the communication of the D.P.P. position was to constitute the taking of a step under section 23. And yet it is difficult to see why such a communication whenever made would not so satisfy the requirements of the section. It is only with a view to achieving greater certainty that I would be of the opinion that such communicated does not satisfy section 23. In any event, it is almost invariably the case that once so conveyed, the trial Judge, immediately following, remains the accused person for the service of the Book of Evidence. As this constitutes such a step the distinction as made for practical purposes should have no effect.

21. On this very point Judge James Paul McDonnell delivered a written judgement on the 28th of November 2001 in The DPP v Garret Lyons. The accused in that case was charged with simple possession (section 3 and section 27 of the Misuse of Drugs Act 1977 as amended) and with possession for sale and supply of cannabis resin (sections 15 and 27) of the same Act. These offences were indictable offences but triable similarly at the election of the DPP. The accused first appeared at Tallaght District Court on the 7th of June 2001 and again on the 5th of July and the 13th of September of that year. On all such dates the Trial Judge made an inquiry as to the wishes of the DPP with regard to the mode of trial of these said charges. On the date last mentioned the court was informed that the DPP had directed the trial upon indictment of both charges. The accused was remanded and the court extended the time for the service of the Book of Evidence until the 25th of October of that year, on which occasion the Book was duly served. On the resulting argument as to whether part II of the 1967 Act applied to or the new regime under the 1999 Act, the learned District Judge took the view, as expressed by him at paragraph 13 of his judgment that “ the following steps were taken in this instant case prior to the 1st day of October 2001 and that such steps constituted steps within the meaning of section 23 of the Act of 1999:-

(1) The enquiry by myself of the 7th of June 2001, the 5th of July 2001 and the 13th of September 2001 as to the determination by the Director of Public Prosecutions as to the mode of trial,

(2) The determination by the Director of Public prosecutions, on or before the 13th of September 2001, to direct that the accused be tried upon indictment, and

(3) the communication to the District Court by the State Solicitor of the determination by the Director of Public Prosecutions as to mode of trial on the 13th of September 2001.”

22. It seems to me with great respect, that the making of an inquiry by the Trial Judge is not sufficient for the purpose of section 23. If it were uncertainty would result and confusion would follow. If it were, the preservation of the old regime or the applicability of the new one could result form the operation of chance and be utterly unpredictable. Certainly one could not anticipate or specify when that would happen. When for example should a District Judge make such an inquiry? Should it be deferred pending the decision on further charges? Should it be repeated? How would one deal with different practices which District Judges are perfectly entitled to have and adopt? What would occur if such an inquiry was overlooked or not made at any time prior to the DPP’s decision being communicated to the Trial Judge? In my view to hold that an inquiry of the type described by the learned District Judge was sufficient, would potentially and in reality be to create a result that accused persons could be treated differently on no basis of discernibly different. That is save for a Judge’s practice. Therefore with respect I would not agree with this view.

23. In arriving at the above decision as to the correct interpretation of the phrase in question, I have not been referred to and have not been able to identify any similar context in which the relevant phrase has been previously used or judicially considered. It has been looked at however, in a different context. In O’Flynn v An Bord Gais Eireann [1982] ILRM p. 324 the Court dealt with the phrase “taking any other steps in the proceedings” as contained in section 5 of the Arbitration Act 1980. Though perhaps containing some similarity with the phrase in issue in this case, it is clear from the judgment of Finlay P. that the underlying rationale which motivated his decision stemmed from the legislative desire to give effect to contractual obligations entered into by parties to an arbitration agreement. His conclusions therefore must be considered in that light though nonetheless it is interesting to note that in his opinion such a step had to involve the jurisdiction of the Court. As with case law similarly no real assistance was available from Cross on Statutory Interpretations 3rd Edition, Craies and Maxwell.

24. In conclusion therefore I am satisfied that there are a number of steps prior to the service of a Book of Evidence and a fortiori prior to the Court commencing a Preliminary Examination under section 7, which are capable of constituting a step for the purposes of section 23 and thus capable of preserving the procedures under Part II of the 1967 Act. In this case the first such step occurred on the 17th of July 2001 when the learned District Judge made a determination on the operational preconditions contained section 5(1) of the 1967 Act, with the second such step being the Court’s decision of the 25th of September whereby inter alia an enlargement of time for the service of a Book of Evidence was granted.