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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Flynn v. Minister for Justice, Equality and Law Reform & Anor [2003] IEHC 620 (30 April 2003)
URL: http://www.bailii.org/ie/cases/IEHC/2003/620.html
Cite as: [2003] IEHC 620
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[1999 No. 6037P]
THE HIGH COURT
Between:
WILLIAM GEORGE FLYNN
Plaintiff
AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM and MICHAEL CONNELLAN
Defendants.
Judgment of Mr. Justice Aindrias O Caoimh delivered the 30th April, 2003.
This matter comes before this court on a motion brought on behalf of the defendants for an order dismissing the plaintiff s proceedings pursuant to O. 19. r. 27 of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of the Court and further for an order pursuant to O. 19 r. 28 of the Rules for similar relief. The plaintiff caused a plenary summons to issue on the 10th June, 1999 in which he claim damages against the first defendant for claimed damages for slander, malice, breach of duty and malicious falsehood.
In his statement of claim the plaintiff pleads that he has been suffering from illness for the past four years and that he was unable to attend Letterkenny District Court on the 22nd April, 1998 and he pleads that out of respect for the court he instructed solicitors and counsel on Monday the 20th April, 1998 to inform the Court that because of his illness he would not be able to attend Court on Wednesday the 22nd April. He says that the application was supported by medical certificates. It is pleaded that the second defendant refused the application for an adjournment on the grounds that the plaintiffs illness was not truthful. It is alleged that the said defendant said that he was familiar with the plaintiff and his modus operandi and that he alleged that there was no medical evidence before the Court. It is further pleaded that on the following day the 21 st April, 1998 an application was made to the second defendant for a six month adjournment which was supported by two current medical certificates from the plaintiff's doctor disclosing the plaintiff s unfitness to attend court in the then near future. It is pleaded that out of malice and spite the second defendant disregarded the medical evidence and adjourned the action peremptorily to the 29"' May, 1998. It is further pleaded that the second defendant exceeded his powers as a judge of the District Court and acted maliciously towards the plaintiff and in so doing slandered the plaintiff and issued negligent misstatements and malicious falsehoods concerning the plaintiff s illness and concerning his character and reputation.
In his statement of claim it is pleaded that the plaintiff recognises that under the District Court rules the said defendant is protected by privilege in performing his duties as a judge but it is pleaded that where he exceeds his duty and acts maliciously he is no longer protected by privilege.
The claim against the first defendant (`the Minister') is pleaded to be on the basis that the second defendant is a servant and agent of the Minister and the Minister is responsible for the actions of the second defendant.
A full defence denying the plaintiff s claim has been filed on behalf of the defendants. In the defence it is pleaded inter alia that the proceedings disclose no known or reasonable cause of action against the first or second defendants and that such action is frivolous and vexatious and is bound to fail. It is further pleaded that the subject matter of these proceedings are identical to proceedings previously issued by the plaintiff in respect of which a successful application to dismiss same was granted by the High Court on the 2nd October, 2000 and in this regard the Defence signalled that the within application would be made.
The application to this court is grounded upon an affidavit of Valentine Cronin who is a District Court Clerk for District No. 1 including Lettterkenny. He says that on the 20th April, 1998 there was an unscheduled application for an adjournment made by a solicitor acting on instructions from the plaintiff to have the summons listed for the 22nd April, 1998 adjourned. He says that being unscheduled the court file was not before the Court. He refers to the fact that the reason for the adjournment was the plaintiff s medical condition but he says that no medical certificate was produced and as far as he recalls no mention was made of a medical certificate. It is stated that the application for the adjournment was objected to by Garda Inspector O'Brien representing the Director of Public Prosecutions. As Mr. Cleary, the plaintiff s solicitor at the time did not produce a medical certificate, the second defendant adjourned the application to the following day to enable a medical certificate to be produced.
Mr. Cronin states that he received a fax late on that same evening containing a medical certificate detailing the plaintiff's medical condition. On the following day counsel for the plaintiff indicated that the matter could be adjourned on consent to the 29th May, 1998. Mr. Cronin indicates that the application was not a peremptory adjournment application.
Much of Mr. Cronin's affidavit is devoted to argument and it is not proposed to repeat same herein.
The plaintiff has sworn a replying affidavit in which he describes that of Mr. Cronin as perjurous. He states that his barrister Mr. Peter Nolan informed him that he applied for an adjournment in accordance with the medical certificates and that the second defendant refused same. The plaintiff has sworn a second replying affidavit on the 1St May, 2002 in which he exhibits correspondence from his solicitor Patrick Enright dated the 23`d April, 1998 indicating that he received a letter from Mr. Donagh Cleary indicating that the adjournment to the 29th May, 1998 was on a peremptory basis.
A further affidavit has been sworn by the plaintiff in which he alleges that his solicitor and counsel were incompetent in representing him. He states that he did not speak to Mr. Nolan and only met him for a few moments in April, 1999 when he was introduced to him. The remainder of this affidavit relates to the plaintiff's perception of how these proceedings have been conducted and are argumentative in nature and do not address the essential gravamen of the defendants' motion herein.
A further affidavit has been sworn by Mr. Cronin exhibiting entries in the relevant Court Book, which was produced to me in open court, and I am satisfied that the photo copies of the entries accurately reflect the entries in the Book itself.
Submissions
On behalf of the defendants it is submitted by Mr. Patrick McEntee S.C. having traced the facts of the case as deposed to by Mr. Cronin that the prosecution against the plaintiff was further adjourned on the 29th May, 1998. It is submitted that the plaintiff's attitude is based upon a misapprehension of what the first defendant did. It is submitted that the initial adjournment was to ensure that the said defendant had proper control of the list. It is submitted that not only did he behave correctly but that he did so in a manner that showed sophistication and an appropriate concern for the duties of his office in the interests of the administration of justice.
Counsel submits that each of the actions taken by the plaintiff are frivolous and vexatious and are based on a misunderstanding of what the District Court judge did and why he did what he did. It is submitted that in neither set of proceedings is a reasonable cause of action disclosed.
Counsel refers to the fact that the District Court is a court of record and in this regard reference is made to s. 13 of the Courts Act, 1971 which provides:
"13.-The District Court shall be a court of record."
Counsel refers to the fact that historically a distinction was drawn between the District Court and the other courts. Counsel submits that any such distinction in principle with regard to the status of the District Court has now disappeared as it is a court of record and entitled to the same respect and protections as other courts under the Constitution.
With regard to the issue of privilege counsel refers to McCauley & Co. Ltd. v. Wyse-Power (1943) 77 I.L.T.R. 61 in which it was held by the High Court that a claim for damages against a Circuit Court judge was not maintainable in law. The Court held that the action was not maintainable and dismissed the action in accordance with the inherent jurisdiction of the Court. The action in question related to the actions of the defendant in the course of the exercise by him of his judicial duties. Martin Maguire, J. indicated in giving judgment that there was a long line of authority which established the proposition that no action should lie in such circumstances against a judge of a court of record. He held that it was better that an individual should suffer than that the course of justice should be hindered and altered by apprehensions on the part of a judge that his words might be made the subject of an action. This was generally called judicial privilege but it was really the privilege of the People. The People were entitled to have the opinion of a judge without fear of his words being challenged elsewhere. It was a salutary and beneficial privilege. If action were maintainable for a judicial act it was hard to see where matters would end.
Counsel refers to Tughan v. Craig [1918] 1 I.R. 245 in which it was held by Dodd J. in the Chancery Division that an action does not lie against a judge of a cour of record for anything done by him as a judge in a judicial proceeding. It was held that the privilege was not for the judge but for the sake of the public and the advancement of justice. It was held that an allegation of malice did not make the action maintainable. The privilege extended to words spoken as well as to things done.
This case involved an action against a judge for what he said in charging a jury.
At p. 255 Dodd J. stated, inter alia, as follows:
"The fourth question is: Does malice deprive a judge of the protection? The answer may be given to this also in the words of the books in Barnardiston v. Soame 6 State Trials 1063. It is laid down that "No action will lie against a judge for what he does judicially, though it should be laid falso malitose et scienter. They who are intrusted to judge ought to be free from vexation, that they may determine without fear; the law requires courage in a judge, and therefore provides security for the support of that courage." And if it be objected that this is an old authority, and from the State Trials, it has been adopted by all the eminent judges whose decisions I have already cited."
As the plaintiff chose to absent himself from part of the hearing he made no submissions in reply to those advanced on behalf of the defendants.
Conclusions
While the plaintiff's case is based on supposition and hearsay insofar as he was not present in court on the dates in question, the defendants' case is based in part on the evidence of Valentine Cronin who was in the District Court at the time and acting as District Court Clerk. In the light of the conflict of evidence the plaintiff indicated that he would avail of an adjournment to put the evidence of his solicitor before this court. This he failed to do. Accordingly, this court cannot prefer his evidence to that put forward on behalf of the defendants. However, it is possible to address this case in light of the submissions without having to resolve any conflict of evidence.
I am satisfied on the basis of the authorities cited by counsel for the defendants that the central issue that arises in this application is whether a judge of the District Court, now being a court of record, enjoys privilege from suit, including cases o alleged malice in the course of acting in a judicial proceeding. If this question is to be resolved in favour of the defendants, I am satisfied that it is not necessary to go further.
I am satisfied that the plaintiff cannot succeed in these proceedings in any claim against the second defendant for slander, malice, malicious falsehood or breach of duty. This defendant enjoys immunity from suit arising out of his actions and utterances as a judge of the District Court in the course of judicial proceedings. On this basis, even if the plaintiff could establish the facts which he alleges, and in this regard I do not accept that he could so establish, he cannot succeed in any event in his action for damages against the second defendant.
With regard to claim against the Minister, insofar as the claim is premised upon a contention that a judge of the District Court is a servant or agent of the Minister, I am satisfied that this is misconceived as a judge is independent in his judicial functions and the Minister is not answerable for same.
In all the circumstances I am satisfied that the defendants are entitled to the relief which they seek to have the plaintiff's claim dismissed and I will so order.