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Cite as: [2008] IEHC 419

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Judgment Title: D. P. P. -v- Judge Reilly

Neutral Citation: [2008] IEHC 419

High Court Record Number: 2008 856/857/858/859 JR

Date of Delivery: 19 December 2008

Court: High Court

Composition of Court:

Judgment by: Cooke J.

Status of Judgment: Approved

Neutral Citation Number: [2008] IEHC 419

THE HIGH COURT

2008 856 JR
2008 857 JR
2008 858 JR
2008 859 JR

BETWEEN/

DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

DISTRICT JUDGE BRIDGET REILLY

RESPONDENT

AND

STEPHEN MOOREHOUSE, AMANDA GILBERT,
PATRICK DORAN, NATASHA O’CONNOR

NOTICE PARTIES

JUDGEMENT of Mr Justice Cooke delivered on 19th day of December, 2008.

1. In this application for judicial review the first essential issue raised is that of the entitlement of the applicant to obtain an extension of the time limits imposed by O. 84, r. 21 of the Rules of the Superior Courts. In respect of the primary relief sought, namely, an order of certiorari, the time limit is six months and for the order of mandamus sought in the alternative, the limit is three months. Those limits begin to run on the date upon which the grounds for the application first arise.

2. In all four of these cases the orders of certiorari are sought to quash orders made by the respondent on 23rd February, 2007, returning the notice parties for trial in the Circuit Court on a series of charges including, inter alia, theft, burglary, robbery and arson alleged to have been committed on 25th November, 2005, at Enniskerry, County Wicklow.

3. It is not disputed that the orders as made up in the District Court office following the hearing before the respondent were defective in that the attached schedule of charges referred to on the printed form had been left blank in each case. Thus, the orders for return for trial failed to identify the charges upon which the notice parties had been sent forward with the result that when the point was raised before the Circuit Judge at the outset of the trial on 15th May, 2007, he found that he had no jurisdiction to proceed.

4. The order of mandamus is sought in the alternative to direct the respondent to hear and determine an application made by the applicant to cure these defects by completing the omitted schedules of charges under the slip rule in O.12, r.17 of the District Court Rules 1997 so that the orders conform to the decisions as pronounced orally in court on 23rd February, 2007. This application had been made to the respondent by the applicant on 14th December, 2007, but, following objection on behalf of the notice parties as to her competence to apply the slip rule at that stage, the application had been adjourned.

5. The present application for judicial review was initiated on 18th July, 2008, and leave was granted on 21st July, 2008.

6. So far as concerns the order of certiorari, it is clear from the evidence and not disputed by the parties, that the grounds giving rise to the application first arose, at the latest, on 15th May, 2007, when the defect in the return for trial was raised before the Circuit Court. In that regard therefore, the issue before this court is whether the Director of Public Prosecutions can establish “good reason” for extending the time for the application notwithstanding the lapse of time from six months after 15th May, 2007, until mid-July, 2008. In other words, do the explanations offered by the applicant for this delay constitute “good reason” within the meaning of Order 84?

7. Similarly, the grounds for seeking an order of mandamus clearly arose on 14th December, 2007, when the respondent declined to apply the slip rule but indicated that the issue might be resolved by her stating a case under s.52 of the Courts (Supplemental Provisions) Act 1961 for the opinion of the High Court as to her jurisdiction to apply the slip rule in those circumstances. This arose because it had been argued on behalf of the notice parties at that hearing that the District Judge was functus officio in the matter once it had been transferred to the Circuit Court so that she had no jurisdiction to apply the slip rule of O.12, r.17.

8. While there appears to be some disagreement between the applicant and the notice parties as to precisely who suggested the case stated as an option, it is clear that as matters stand the application made by the Director of Public Prosecutions under the slip rule remains adjourned and is capable of being re-entered subject only to the further practical complication that, in the meantime, the District Court office has apparently lost the file.

9. Accordingly, so far as concerns the application for mandamus, the issue which arises is whether there is “good reason” to extend the time in favour of the Director of Public Prosecutions notwithstanding the lapse of time from three months after 14th December, 2007, until mid-July, 2008.

10. It is appropriate to deal first with the primary relief sought, the order of certiorari in respect of the orders for return for trial. The applicant claims he had good reason not to move to quash those orders of 23rd February, 2007, at any time between 15th May, 2007, and the commencement of the present proceeding on the following basis:

(a) First, it was reasonable for the applicant to first take time to ascertain the extent of the problem of defective orders emanating from the Bray District Court office. This arose because it apparently transpired that these cases were not alone and that some 35 similar cases had occurred in that office:
(b) Second, it was reasonable to seek first to have the defects rectified under the slip rule. It was emphasised that in some of the other cases this had been done successfully:
(c) Third, the further delay during the first half of 2008 in re-entering the application under the slip rule in order to pursue the case stated option cannot be laid at the door of the applicant because it was due to the mislaying of the file in the District Court offices and without the file the office was unable to re-list the cases.

11. The Court considers that these factors cannot be considered either individually or cumulatively to amount to “good reason” which would justify extending the time to apply for an order of certiorari.

12. It was or should have been immediately apparent following the hearing on 15th May, 2008, that the return for trial orders were defective and that no trial on the charges could proceed until the orders were made good or replaced. To the extent that quashing the defective orders was considered an appropriate remedy, the existence of other possible orders with the same defects was irrelevant. These cases had to be dealt with one way or another and would require individual applications to the High Court for appropriate orders whenever they were made and irrespective of the number of other cases to be dealt with.

13. It may well be that in the latter half of 2007 it was not unreasonable for the Director of Public Prosecutions to have considered that the correct and most efficient solution was the application of the slip rule. As the Court will indicate hereafter, that course was indeed the best solution. Moreover as Mr. Boyle, State Solicitor, in Case 2008 No. 857 JR (Moorehouse) states at para. 8 of his affidavit of 8th December, 2008, this is in fact what was done in two other cases (Murphy and Maples) where the two accused had taken the initiative to quash the defective orders on which they had been returned for trial. Although, ironically, those two cases encountered further procedural pitfalls of new defective orders, the fact that in November 2007, orders applying the slip rule to remedy the same defect had been made could be regarded as giving the applicant good reason for considering an order of certiorari as unnecessary or inappropriate.

14. Such an excuse was no longer tenable, however, after the hearing on 14th December, 2007. At that point it became clear that there was to be a contest as to whether recourse could be had to the slip rule with the likelihood of further delay in the formulation, agreement, lodging and eventual determination of a case stated.

15. At that point the six month time limit from 15th May, 2007, had already expired. In so far therefore as certiorari was considered to be an appropriate or necessary remedy there was an onus on the Director of Public Prosecutions to move promptly and to choose between that remedy and the slip rule option. If, as Mr Boyle states in that affidavit, the District Judge had been informed on 14th December, 2007, that the solution of a consultative case stated was opposed because the conditions of s. 52 of the 1961 Act were not met, then, if it was clear that the respondent doubted her jurisdiction to apply the slip rule, there appears to be no good reason why the Director of Public Prosecutions should not then have moved promptly to apply for leave to seek certiorari to quash the orders of 23rd February, 2007.

16. The further delay in the first half of 2008 is attributable to indecision as to what to do about the adjourned application under the slip rule and, as from 26th March, 2008, when it was decided to re-enter the application, to the difficulty posed by the loss of the District Court file.

17. However, as counsel for the notice party in Case No. 858 JR (Doran) correctly pointed out, so far as an application for an order of certiorari is concerned, the state or whereabouts of the District Court file was irrelevant. It was not needed. Indeed, it might well be argued that once it became apparent to the applicant in March, 2008 that the loss of the file was delaying and jeopardising the alternative solution, it became even more urgent to move promptly to seek judicial review.

18. The parties in their legal submissions have referred the Court to the relevant case law on the concept of “good reason” under O. 84. It is an objective test and the Court exercises a broad discretion in applying it. The factors which fall to be considered have been outlined in a non-exhaustive manner in cases such as De Roiste v. Minister for Defence [2001] I I.R.190.

19. So far as the conduct of the parties is concerned, there is clearly no aspect of the conduct of the notice parties which can be invoked to excuse the applicant’s delay. No conduct on their part impeded or delayed a prompt application by the Director of Public Prosecutions for judicial review by way of certiorari at any time after 15th May, 2007. On the other hand, the delay is largely due to indecision on the part of the applicant as to how to deal with the problem and a lack of diligence in getting to grips with it.

20. The Court accordingly finds that there is no good reason to extend the time under O. 84 so far as concerns the application for relief by way of an order of certiorari. In any event, as will be explained hereafter, the Court considers that it is inappropriate and unnecessary to quash the orders for return for trial which were, it is not disputed, correctly decided and orally pronounced in court on 23rd February, 2007.

21. As already pointed out, the three month time limit for an application for mandamus ran from 14th December, 2007, so that the delay to be explained is the four month lapse of time between mid-March, 2008 and the commencement of the present proceeding. However, unlike the position described above in relation to the application for certiorari, the position of the applicant and the notice parties is somewhat different in relation to the proceedings before the respondent on the application under the slip rule. The notice parties, as they were perfectly entitled to, opposed the Director of Public Prosecutions’s application upon the ground that the judge was functus officio and it seems that she too had doubts on that score.

22. It seems clear that while on 14th December, 2007, the respondent had not expressly refused to apply the slip rule, the possibility of stating a consultative case having been mooted (it is not clear by whom,) the only order made was to adjourn the application under O. 12, r. 17 with liberty to re-enter.

23. When, on or after 23rd March, 2007, it was decided to have the matter re-entered with a view to arguing against the case stated option and thus, presumably, to press for application of the slip rule, the Director of Public Prosecutions ran into the difficulty of the missing file. This can hardly be laid at the door of either the applicant or the notice parties.

24. In these circumstances, although the three month time limit for seeking leave to apply for mandamus has been exceeded to a substantial degree, the Court considers that the lapse of time until mid-July, 2008 is not so culpably inordinate on the part of the applicant as to warrant refusing him the necessary extension.

25. The Court considers that these are cases in which the District Court was and is entitled to apply O. 12, r. 17 to make good the defects in the orders made up on foot of the respondent’s decisions of 23rd February, 2007. It is not disputed that the orders as pronounced in Court on that day returned the notice parties for trial and that the charges as recited in the books of evidence correctly reflect the charges in respect of which the return was ordered. The printed forms as subsequently filled out in the office fail to reflect the full content of the order made by the judge by the omission of the charges from the attached schedule. This is not therefore a mistake in the exercise of the judicial function, it is an administrative or ministerial failure to transpose the full decision accurately.

26. The argument raised against the application of the slip rule to cure this failure is that the matter having been disposed of by the District Judge and transferred to the Circuit Court, it was no longer in the seisin of the District Judge such that she was functus officio and had no competence to apply Order 12, rule 17.

27. As is clear from the order of the Circuit Judge on 15th May, 2007, that court had no jurisdiction to entertain the cases as the sending forward of the cases had been ineffective. In that sense, the District Judge, by reason of the defective orders of return for trial, had failed to divest herself of seisin. Indeed, it is precisely for this reason that the facility of the slip rule exists, namely, to enable the court to rectify accidental errors and omissions in its orders which prevent its actual exercise of jurisdiction taking full and correct effect as the court intended and decided.

28. It was also submitted that the respondent could not in any event cure the defects in the present case by applying the slip rule because she could only have recourse to O. 12, r. 17 of the District Court Rules while assigned to and sitting in the Bray District court area and she is no longer so assigned and sitting. The judgments of the High Court and Supreme Court in the case of Creaven & Ors. v. The Criminal Assets Bureau & Ors. [2004] 4 IR 434 were invoked in support of the submission.

29. The Court does not consider these arguments well founded. It is true that a court can be considered functus officio and to have exhausted jurisdiction in a matter when a judgment or order has been made which finally disposes of the rights of the parties before it. This does not apply, however, to the situation in which the court itself finds or has it brought to its attention that the judgment or order passed or entered does not reflect or correctly state what the court actually intended and decided. In such cases the court has an inherent power, which the slip rule in the rules of court reflects, to remedy accidental errors and omissions in the order as drawn up.

30. The authorities on the power of a court to alter a judgment or order after a case has been concluded were considered in some detail in the judgments of McGuinness J. in the High Court and of the Supreme Court on appeal in the case of G.McG. v. D.W. (No.2) [2000] ILRM I 121 and [2000] 4 I.R. 1. (See in particular the authorities referred to by both courts as cited by Finlay C.J. in Belville Holdings v. Revenue Commrs. [1994] ILRM 29.) It clearly emerges from this case law that a court has power to make good accidental errors or omissions in orders so as to ensure that they correctly reflect the intended effect of the court’s judgment or decision and this is so even where the judgement or order is one finally disposing of the rights of the parties.

31. The Court accordingly considers that the slip rule of O. 12, r. 17 of the District Court Rules is properly applicable to remedy the defect in the orders made on 23rd February, 2007, by the respondent. It was the clear intention and decision of the respondent on that day that the respondents be returned for trial in the Circuit Court on the charges which were before the Court and that those charges be listed in the schedule of charges to be attached to the orders when made up. Due to the errors made in the office, that was not done and the schedule was omitted.

32. Finally, the Court considers that the point raised on the Creaven case is not an obstacle to that course. Recourse to the slip rule is not a judicial act in the sense of that case, namely, the exercise of a power of adjudication. The judicial act in that sense of the exercise of a statutory power of adjudication was in these cases the decision to order the return of the notice parties for trial in the Circuit Court. That power was correctly and validly exercised by the respondent in court on 23rd February, 2007. The problem is that the completion of the printed form giving effect to that order failed to fully and accurately transpose that decision because of the omission of the charges in the schedule. The making good of that mistake under the slip rule is a purely ministerial act of the judge in that it is a necessary and automatic step in reproducing correctly the content and effect of what was decided and pronounced in court.

33. As such, the application of the slip rule to the defective orders is ancillary to, consequential upon and therefore relates back to, the judicial act taken in court on 23rd February, 2007, and it completes that act as it was intended. It is the residual exercise of the jurisdiction exercised on that date and not something that could only be done if the respondent was again assigned to and sitting in Bray.

34. The Court will therefore allow the necessary extension of time and grant an order of mandamus directing the respondent to hear and determine the applicant’s application under O. 12, r. 17 of the District Court Rules 1997 to make good the omissions in the orders for return of the notice parties for trial in the Circuit Court.