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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Gaultier v Four Judges of the Court of Appeal & Ors (Approved) [2025] IEHC 334 (30 May 2025)
URL: http://www.bailii.org/ie/cases/IEHC/2025/2025IEHC334.html
Cite as: [2025] IEHC 334

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THE HIGH COURT

[2025 No. 29 IA]

[2025] IEHC 334

 

BETWEEN

ARNAUD GAULTIER

APPLICANT

AND

 

FOUR JUDGES OF THE COURT OF APPEAL, IRELAND and THE ATTORNEY GENERAL

 

 

PROPOSED RESPONDENTS

 

 

JUDGMENT of Ms. Justice Mary Rose Gearty delivered on the 30th of May, 2025

1.      Introduction

1.1  The proposed Respondents include four Judges of the Court of Appeal.  The Applicant seeks the relief of Quo Warranto against the four Judges.  His stated basis for this remedy is that they have infringed, knowingly, his constitutional right to his good name which infringement is incompatible with their oath of office.  Quo Warranto is a very rarely used remedy, which requires an official to show the authority on which she purports to act.  The Applicant submits that the remedy can also be used to ensure that those who breach the oath they took on appointment can be removed from office. 

1.2  This Court has no authority to remove any judges of the Court of Appeal.  The Applicant argues that he does not seek to review the decisions of these Judges, but seeks to depose them due to their bad faith in respect of an interpretation they took of an email he sent to an opposing party in litigation.  He argues that there is no process available to him to challenge their finding and that there is no effective remedy for mala fides in the judiciary.  He submits that the quo warranto remedy is the appropriate remedy to use.

1.3  The Applicant has not established any legal basis on which this Court can review a decision of the Court of Appeal on its facts or depose judges due to their decisions or their conduct, which is what this Court is invited to do, albeit characterised as a quo warranto application.  The Applicant is not entitled to be granted leave to judicially review the proposed Respondents.  Impeachment of a judge is a matter for the Oireachtas and complaints in respect of judicial conduct may be made to the Judicial Council.  There is no evidence of fraud which would justify any kind of enquiry into the case.

 

2.      Quo Warranto

2.1  Quo warranto literally means "by what authority?" and is a challenge to the appointment of the judge rather than an argument in respect of a decision made by that judge.  The remedy of quo warranto is described by Collins and O'Reilly, in their text Civil Proceedings and the State, as a civil proceeding lying against a person who claims or usurps any office or privilege of a public nature, directing them to show by what authority they support their claim to that position (see the 3rd edition, 2019, at paragraph 5.65).

2.2  In R. (Moore) v Moriarty [1915] 2 IR the court considered quo warranto to be an appropriate procedure to use in cases where the ground of challenge was the lack of qualification for office of the person appointed, but the remedy has been rarely invoked, as set out by Browne in The Law of Local Government (2nd ed, 2020) at paragraph 6-546. 

2.3  The Law Reform Commission's 1979 Working Paper ('The Problem of Remedies') recommended that the remedy of quo warranto be abolished and reiterated that view in its 2004 Report on Judicial Review Procedure, writing at paragraph 5.14:

"The Commission is satisfied that the remedy of quo warranto no longer serves any purpose and should any cases arise in future which would formerly have been dealt with by way of quo warranto, the extant remedies of declaration and injunction would be sufficient to remedy the complaint.  The Commission therefore reiterates the recommendation in its 1979 Working Paper on Judicial Review that the remedy of quo warranto be abolished."

2.4  In Glynn v Roscommon County Council (1959) 93 ILTR 149, many years earlier, commenting on a rate collector who did not have the required educational qualifications for one in his position, the Court ruled that the plaintiff was entitled to seek declarations to that effect, which was more convenient than proceeding by quo warranto.

2.5  The Applicant did not direct my attention to any law or case relevant to the process other than the Quo Warranto Act of 1798, in which a particular defence to such a challenge was described: in short, when a challenge is made by way of quo warranto against an office holder, it is a defence if he was appointed more than 6 years before the challenge. 

2.6  It is perhaps unnecessary to point out that, in this case, the Judges in question were publicly appointed by the Government, which appointments were published in Iris Oifigiúil, they have each taken an oath in public and they perform their functions in public.  There has been no evidence to suggest that these judges were not appointed in accordance with law.  The Applicant in oral submissions accepted that he was not seeking proof of the appointment of the Judges but was submitting that because of their conduct in the Court of Appeal, they have infringed his rights and thereby, to use his words, vacated their office. I take this to mean that the Applicant submits not only that I have lawful authority to remove another judge from office but that even in the absence of my deciding to do so, they have already vacated their office even without an order to that effect.  No authority is cited to support this proposition, nor does the Applicant explain how this could be consistent with the Constitution. 

2.7  While the remedy of quo warranto may still exist, as the Applicant submits, it is neither useful nor relevant in this context.  Rather than waste time on what is, essentially, an obsolete remedy, and one on which the Applicant expressly does not rely insofar as quo warranto relates only to the manner of appointment, the remainder of this judgment deals with the core claim.  That claim is that the High Court may intervene in a case where it is claimed that judges have acted mala fides and a related challenge to the Judicial Council Act 2019 on the basis that there is no effective process whereby a judge can be removed. 

 

3.       Challenging the Validity of a Judicial Tribunal: EU Law

3.1  The Applicant asked me to consider the recently delivered opinion of Advocate General Spielman, delivered on 10 April 2025 in Case C-225/22 'R' S.A. v AW 'T'.  There, the Applicant argued that, due to irregularities in connection with their appointment as judges in the Chamber of Extraordinary Control and Public Affairs, a Polish court did not constitute a tribunal established by law within the meaning of EU law. The case involves consideration of the legal status of the decisions of courts which are irregularly constituted and the possibility of reviewing the decisions of such courts.  The Advocate General's opinion confirms that the validity of judicial appointments is a matter of EU concern and a justiciable issue. At para 52, he concludes that "the second subparagraph of Article 19(1) TEU must be interpreted as meaning that a national court must be able to verify whether a higher court meets the requirement of an independent and impartial tribunal previously established by law, for the purposes of that provision, in circumstances in which there may be doubts as to whether that requirement has been met."

3.2  There is no need for me to consider the effect of the S.A. decision on the current facts as the Applicant himself concedes that it is not the validity of the appointments of the Judges that is challenged but their conduct which, he argues, has vitiated their appointments.  He expressly does not challenge the validity of their original appointments, nor could he, given the nature of that process.  The case, therefore, has no application to these facts. 

 

4.      The Core Challenge

4.1  In this application, the decisions made by the first four Respondents are criticised on their merits throughout the pleadings.  The oral submissions made confirm that the Applicant seeks, in his words, "not to review but to set aside their decision by reason of the actions of the Court of Appeal Judges; to set it aside because it is invalid.  They have infringed, knowingly, my constitutional right to my good name and infringed their oath of office."  He later restated his argument in these terms: "when there is a flagrant abuse of constitutional rights, my contention is that the Judge then leaves office". [These notes are from my contemporaneous note of the oral submissions made by the Applicant].

4.2  The challenge,  essentially, is to a particular finding of fact and the submission amounted to an argument that this finding was so at odds with the facts, so unfair in substance and in form (he submits that he was not allowed to make verbal submissions on the point he raises) and so damaging to him, that the judges in question are no longer entitled to sit as judges.   This argument is the core of the case and is expressed in two ways:  one, that the judges have vacated their office and two, that their conduct allows me to remove them.

4.3  It is more accurate to characterise this application as one to set aside the judges' findings and various subsequent rulings and to remove them, rather than an application for quo warranto in respect of the Judges.  The arguments are all directed at decisions which followed court hearings, including at least one which did not involve this Applicant at all but rather, was an exchange which he happened to hear in a court. 

4.4  The separation of powers is a fundamental constitutional norm.  The only body with power to impeach or remove a judge is the Oireachtas, as set out in Article 35.4. 1:

A judge of the Supreme Court, the Court of Appeal, or the High Court shall not be removed from office except for stated misbehaviour or incapacity, and then only upon resolutions passed by Dáil Éireann and by Seanad Éireann calling for his removal.

4.5  The Applicant's submissions invite me to ignore this express constitutional provision on the removal of judges from office. In respect of his submissions on judicial conduct, in any case, if a court rules against a litigant, the remedy is to appeal that decision and not to seek to undermine it in another court.  This Court has no jurisdiction to consider these arguments. As regards what he saw in another case, the Applicant has no standing to ask me to review a decision in a case to which he was not a party, on the basis of an exchange in court which he happened to witness.  In addition to the constitutional imperatives in support of judicial independence and the separation of powers, there is no statutory or constitutional provision, nor any common law authority which supports the proposition that if a litigant disagrees with a judge's finding, his remedy is to apply for that judge to be deposed or removed.  And, finally, the Applicant is entitled to complain to the Judicial Council if he alleges judicial misconduct and this is examined further, below.

 

5.      Challenging a Decision of the Superior Courts

5.1  The Applicant challenges a decision delivered on the 29th of April 2024 in which he was the losing party. The specific complaint he makes is of interpretation of a phrase in an email, the relevant part of which email was set out in the judgment.  The Applicant has already sought to explain the email in writing, which explanation was available to the Court of Appeal and which explanation was rejected by them.  He has also sought to raise the issue twice with different members of that Court.

5.2  In the judgment of which the Applicant complains, Gaultier & anor v. Reilly & others [2024] IECA 103, the Court set out that email and, having done so, concluded that:-

 "..it is perfectly clear from this email that the appellant is wrongfully threatening the second named respondent to either settle or incur further legal costs in circumstances where the appellant has put his own assets into his wife's name so as to render at naught any costs orders that will inevitably be made against him." 

5.3  The Applicant relies on the judgment of Dunne J. in Desmond v Moriarty [2012] IEHC 202, saying that the effect of that judgment is that the High Court can review or overturn a decision of an appellate court.  Dunne J. said something quite different:  she held that it was difficult to ascertain if judicial review could ever lie against a judge of the superior courts.  At most, she did not rule it out, but it was clear from the context and her carefully worded view in this regard that such a remedy would only lie in a case of fraud.

5.4  Dunne J. commented that a court must be shown to have been deceived into making the impugned order.  There is no such evidence here.  Here, the Court made a comment in its judgment, which was based on the Applicant's own words.  The effect of the Desmond judgment was to accept that the review of a superior court judge's decision might be possible, but only where there is evidence of a fraud which would affect the final decision.  As noted, there is no such evidence here.  The Applicant does not deny the email, simply disagrees with the Court's interpretation of that email.   

5.5  Fennelly J. considered the same issue in the Supreme Court in Kenny v. Trinity College Dublin [2008] 2 IR 40. There, the plaintiff applied for an order overturning a refusal of his application for leave to issue judicial review on the basis that McKechnie J. in the High Court was misled by fraud on the part of Trinity. The Supreme Court accepted that there is a right to maintain an action to set aside a judgment which has been obtained by fraud. Fennelly J. noted at para. 49 of the judgment that:-

"The jurisdiction to set aside judgments on the ground of fraud must be seen against the background of the important principle of res judicata and of the public policy which discourages endless litigation expressed in the maxim: interest rei publicae ut sit finis litum".

5.6  This is an application in which the Applicant has already made applications in the Court of Appeal and has been refused the relief he seeks. In particular, he has sought that they revisit their decision. On the 20th of May, the Applicant made such an application, and he conceded that he may not have been very respectful to the panel, to use his words, but urged on me that judges should welcome vigorous criticism.  The panel refused to hear him and made an award of costs against him. He submits: "it is this situation which is unacceptable.  It shows a feeling of immunity and disrespect for everything judges should stand for. This sense of immunity that I am in here to stop".

5.7  I disagree with the premise of this argument.  The Applicant has made a statement by email, which he has never denied but he disagrees with the interpretation of that email set out in a judgment of the Court of Appeal.  There is no lawful basis on which an applicant can be heard endlessly on a point that has been decided.  This does not equate with immunity.  Even on a complicated, nuanced argument (and that does not appear to be the case here, but that is not a matter for me to decide) every case must come to an end.  There is no access to justice for other litigants if some applicants continually revisit the same decisions again and again, particularly if there can be no financial consequences for them, as appears to be this Applicant's stated position in the email of 13th May, 2024. That email was the subject of the comment (set out above) about which the Applicant now complains.  At its height, the Applicant urges me to reconsider facts and interpretations already considered by the Court of Appeal.  That is not my function.

5.8  On 14th January 2025, another of the proposed Respondents was asked to revisit this decision.  In this regard, the Applicant submits "I asked him to vindicate my good name, and he refused".  He argues that he was not seeking the recusal of that judge but wanted a chance to address the issue.  Again, this was not a requirement of fairness in the circumstances of the case:  the issue had been decided.  If he wants to appeal that decision of the Court of Appeal, his remedy is to apply to the Supreme Court.  He is now asking this Court to decide how "the infringement" of his rights is compatible with the Judges holding judicial office.  But I have no jurisdiction to remove them, even if he had provided evidence of an infringement of his rights.  His case was heard, and he disagrees with the result and, in particular, with one passage in the judgment.

5.9  There is no evidence of fraud in this case such as to justify a review of the authorities which permit the review of the superior courts on the basis of a fraud. The Applicant criticises the appointment of a judge by reference to family members and on the basis of an apprenticeship served with another judge. There is no logical basis for these criticisms which are simply stated as if they could affect the capacity or validity of the appointments made.  Not only is there no logic to this argument, the Applicant himself accepts that he is not challenging the validity of their appointment but criticising much later conduct. 

5.10      This is an application to revisit the substances of a case that has been heard by a panel of the Court of Appeal.  The Applicant has made an argument in respect of a word being incorrectly transcribed into a decision but nowhere addresses the insurmountable problem for this application:  in the event that he wants to challenge this finding, he must appeal it.  This Court has no jurisdiction to embark on a review of decisions of the superior courts. As I explained to the Applicant when he first made this application, before papers were filed, I have no such jurisdiction:  Supreme Court in Grehan v. Blackhall [1995] 3 IR 208. 

5.11      In line with A.G. v A Judge of the District Court [2023] IECA 311, there being an allegation, but no evidence, of mala fides, the Judges are not named in this judgment.  An adverse decision and a refusal to hear the case again do not amount to mala fides.

 

6.      Constitutional Rights: Limitations on the Vindication of Rights

6.1  The Applicant argues that the right to one's good name is paramount under the Constitution (pursuant to Article 40.3.2).  He attempts to distinguish the personal rights set out in Article 40.3.2 from the unspecified rights in Article 40.3.1, submitting that the unspecified rights need only be protected and vindicated "as far as practicable" but not the specified rights.  He argues that in Article 40.3.2, only the verb "protect" is limited by the phrases "by its laws" and "as best it may", suggesting that the vindication of specified rights is wholly unlimited and must take precedence over every other right or duty.

6.2  Insofar as it is helpful to indicate a view on a proposition which is unsupported by any legal authority, the hierarchical interpretation urged on the Court by the Applicant ignores the words, "in particular" with which Article 40.3.2 begins. This makes both provisions subject to the same limitation:  rights, whether specified or unspecified, must be protected as far as practicable, not at all costs and with no regard to other constitutional rights.  These comments are not part of the reasons for this decision because, as noted, this Court has no jurisdiction to review the decision made or any of its terms.

 

7.      List of Remedies - No Jurisdictional Basis

7.1  The Applicant seeks further orders which are paraphrased here from his pleadings: declarations in respect of the same Judges stating, on the basis of their decisions against him and failure to permit him to reargue this point, that they are in contempt of their oath of office; declarations of unconstitutionality in respect of the delivery of electronic judgments;  declarations in respect of the named Respondents asking whether or not they have committed an offence; orders compelling the Judges to purge their contempt; orders compelling them to vindicate his good name; orders compelling the proposed Respondents to hear his application to review their decision made in April of 2024;  an order setting aside all decisions and orders of the first three Respondents issued on the 24th of October; a similar order in respect of the fourth named Respondent, and an order in respect of the third named Respondent due to what is described as his temporary incapacity.  There is no lawful basis on which I could make any of these orders.  No argument is suggested in respect of the unconstitutionality of electronic delivery of judgments and there is no evidence relied upon in respect of the submission that one Respondent was in any way incapacitated.

7.2  There is no material in the pleadings to support the allegations inherent in all these applications other than the assertions of the Applicant. His case rests on his interpretation of an email, which interpretation has been rejected by the judges in question in a reasoned judgment which the Applicant is free to appeal if he disagrees with the decision or any part of it.   More fundamentally, of course, these are remedies that I cannot grant.

 

8.      The Role of the Judicial Council

8.1  The Applicant argues that it is not for the Courts to decide upon their own immunity by way of judge-made rule and that any such decision should be deemed unconstitutional. He submits that all legal precedents of the Irish Courts since the commencement of 1937 Constitution which limit judicial accountability should be set aside.  Leaving aside that this proposition is novel and is unsupported by any legal authority or even logical argument as to why this position should be adopted, it is contrary to the valid and important policy reasons to maintain the immunity of judges from suit and to protect their independence.  The argument also ignores the line of authority confirming judicial immunity from suit that pre-dates the Constitution. 

8.2  A relevant quotation is set out in full in one of the cases cited by the Applicant: Lord Tenterden C.J. in Garnett v. Ferrand [1827] 6 B. & C. 611, justified judicial immunity from suit, at page 625, as follows:

"This freedom from action and question at the suit of an individual is given by the law to the judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may be free in thought and independent in judgment, as all who are to administer justice ought to be."

8.3  There is no support for the Applicant's proposition that the common law should be ignored and the various cases he relies upon do not address the same issues.  In Kemmy v. Attorney General [2009] IEHC 178, McMahon J. rejected an argument that a criminal trial judge should be personally liable in damages for a decision made which was later overturned by the Court of Appeal.  This case does not assist the Applicant. 

8.4  If a litigant complains of misconduct by a judge, that is the business of the Judicial Council.  In this respect, the Court was asked to declare that the Judicial Council Act of 2019 is unconstitutional as it forces members of the public to initiate judicial review proceedings at huge cost, to use the Applicant's words, as the sole effective remedy against a judge who infringes their rights in delivering that decision.  This is a case in which the Applicant has represented himself throughout and has not been required to pay any legal costs so his reference to huge costs can only refer to those whom he seeks to add as respondents and the costs in terms of the use of the courts' limited resources. 

8.5  The proposition that the Act of 2019 forces complainants to use judicial review is the opposite of that statute's effect.  The Act of 2019 provides a remedy for any person who complains about a judge.  The remedy is free of charge.  There is nothing in these papers to indicate that there has not been an effective remedy for this Applicant.  As is clear from this judgment, his case has received consideration by the Court of Appeal, and he has a right of appeal from that decision.

8.6  It is entirely appropriate that a mechanism such as that set out in the Act of 2019 exists to ensure that litigants are treated fairly by the courts and to provide a remedy where a judge is guilty of misconduct. However, it would make a nonsense of that legislation if litigants were permitted to relitigate their cases by way of a complaint to the Judicial Council merely because they disagreed with the decision made in an individual case.  The Act of 2019 provides a remedy to ensure that judges are held to account if guilty of misconduct.

8.7  The Applicant notes that in Smith v. Cisco [2023] IECA 186, the Court of Appeal has held that making a complaint to the Judicial Council against a judge is not sufficient ground for that judge's recusal.  For the reasons set out in Smith v. Cisco, it is obvious that no judicial system could function if the mere fact of complaint was capable of constituting sufficient grounds to ensure that a judge had to recuse herself. 

8.8  The Applicant argues that the admissibility criteria under the Act are so stringent that only one out of 235 complaints was deemed admissible in 2023.  This suggests that he has not read the Council's report in full.  The report states that of the complaints received in 2023 "a significant majority of the complaints during the period were made by litigants, almost all of whom had represented themselves in court proceedings. Those complaints were pursued under the mistaken belief that the complaints procedure was a form of appeal against an adverse decision, and that if a complaint was upheld, it would lead to the overturning of the decision with which the complainant disagreed. 132 complaints (67% of the total received) fell into this category and were found inadmissible on that basis."

8.9  The report explains that a significant number of complaints involved "a misunderstanding of the court's decision, or a lack of knowledge or familiarity with the courts system or understanding of the role of the judge in a case. In addition, some disappointed litigants complained that they considered that the judge had favoured the other side, or that their case had not been listened to. In each complaint, it was considered (including where appropriate after resort to the Digital Audio Recording) that the complaints were inadmissible, as failing to disclose any stateable case of judicial misconduct."

8.10      Finally, the report notes that multiple complaints were made by the same small number of complainants.  This category of complaint comprised almost 25% of the total number of 232 complaints received in 2023.  Having read these explanations, it is not surprising that only one complaint was deemed admissible in that it was not an attempt to re-argue a case, or to persuade the Council that the judge was biased against the complainant because he lost the case, or a repetition of a similar complaint by the same complainant. 

8.11      The Applicant's third submission in this respect is that a complaint under the Act of 2019 is no longer considered after the retirement of the judge in question.  This is a sensible restriction on the grounds of efficacy but is not relevant to his case as all the Judges in question are serving judges. 

8.12      The Applicant submits that there can be no judicial immunity if it is not specifically provided for in the Constitution.  However, he does not explain how such a proposition can co-exist with the constitutional provisions in respect of the removal of judges from office, which is the remedy he seeks.  Judicial immunity from suit, which is a different matter, is well established and is supported by the Constitutional provisions which guarantee judicial independence.

9.      Conclusions

9.1  The Applicant's characterisation of the application as an attempt to use the remedy of quo warranto is misleading. Ironically, after a judgment which criticised the Applicant for making repeated, vexatious applications to relitigate matters which had already been decided against him, the Applicant has taken a sentence from that judgment and, having been unable to persuade any of the Judges who wrote the judgment to revisit it or rephrase the sentence, he has taken this case, seeking to persuade another judge in another court that he should have been allowed to argue the meaning of the phrase again, not only to change that decision but to remove the relevant Judges from office.  He is not entitled to leave to seek to remove any judge or to review a decision of the Court of Appeal. 

9.2  The Applicant is not entitled to make repeated applications in the same case.  He is entitled to raise these issues in the Supreme Court by way of appeal.  He is also entitled to complain about the conduct of any individual judge.

9.3  No litigant has an untrammelled and infinite right of access to the courts.  The principle of finality in litigation is an important protection of the resources of the courts which allows other litigants to exercise their rights of access to justice.  

9.4  The Applicant has not satisfied me that he has arguable grounds for leave to seek any reliefs:  G. v. D.P.P. [1994] 1 I.R. 374. I can see no prospect of success for him. He provides no support for the proposition that this Court has jurisdiction to grant the reliefs sought.  While the Applicant uses the word misconduct repeatedly, his evidence falls far short of that serious state of affairs but, as noted, I have no jurisdiction to hear the application in any event. I refuse leave to pursue a judicial review claim for quo warranto.  Similarly, leave to seek any of the other reliefs set out in the pleadings is refused. 

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