Supreme Court of Ireland Decisions

1. These are two appeals in judicial review proceedings from orders made by the High Court striking out the proceedings as disclosing no reasonable cause of action and discharging prior orders giving leave to issue the proceedings. The appeals have been heard together in accordance with an order made by the learned President of the High Court on the 30th day of January 2001. The appeals raise similar issues for determination by this Court.

2. The first appeal, in the proceedings Toma Adam and Others v Minister for Justice, Equality and Law Reform and Others (referred to for convenience hereafter as the "Toma Adam proceedings"), arises from a judgment and order of O'Donovan J. made the 16th November 2000. The second appeal in the proceedings Florin Iordache v Minister for Justice, Equality and Law Reform and Others (the "Iordache proceedings" ) arises from a judgment and order of the learned President of the High Court dated the 30th January 2001.

3. In the Toma Adam proceedings the High Court (Kinlen J.) granted leave to apply for judicial review by order made the 24th January 2000. The Applicants were stated to be persons who apprehended that they would be deported from the State and they were given leave to seek the following reliefs:

4. At the time the Applicants had also sought an order of Mandamus compelling the second and third named Respondents to institute proceedings against Romania under the provisions of the European Convention on Human Rights, but the learned High Court judge refused leave for them to seek this relief.

5. On the 27th June 2000 the Respondents filed a statement of opposition. At the same time the Respondents by notice of motion sought the following orders:

6. Both the statement of opposition and the notice of motion were grounded on the affidavit of Michael Quinn, an Assistant Principal Officer in the Asylum Division of the Department of Justice, Equality and Law Reform, sworn on 26th June 2000.

7. Subsequent to the issue of the Respondents' notice of motion the solicitor for the Applicants, Mr Pendred, filed a replying affidavit sworn on the 21st July 2000. In addition, on dates between 6th September 2000 and 9th October 2000 each of nine Applicants swore affidavits in virtually the same terms setting out in each case that he/she had arrived in Ireland and claimed asylum on the basis that he/she was persecuted in his/her own country, Romania, that he/she suffered breaches of his/her human rights there, and that as a result of those breaches and the persecution that he/she had a well founded fear of persecution should he/she return to that country. There is no averment in any of the affidavits as to the details of the alleged breaches of human rights or persecution or of the foundation of the fears which the deponents suffers. Each deponent exhibits documents relevant to his/her application for asylum and the processing of his/her claim for asylum by the relevant authorities.

8. The Respondents' motion was heard by the High Court (O'Donovan J.) in October 2000. On 16th November 2000 O'Donovan J. delivered a reserved judgment and made the consequent orders.

9. For the reasons set out in his judgment the learned High Court judge held:

10. The Applicants have appealed against the judgment and order of the learned High Court judge on the following grounds:-

11. In these proceedings the Applicant was by order made by the High Court (Laffoy J.) on 5th May 2000 given leave to seek the following reliefs by way of an application for judicial review:

12. In addition Laffoy J. ordered that the efficacy of the deportation order which had been served on the Applicant should be stayed until the determination of his application for judicial review.

13. The Applicant's statement of grounds for judicial review was accompanied by an affidavit of his solicitor, Mr Pendred, in which he averred that the Applicant was a Romanian National who sought asylum and refugee status in this State

14. The bulk of Mr Pendred's affidavit sets out general accusations against the regime in Romania and what are basically legal submissions in connection with the European Convention on Human Rights. No specific details are given of the various abuses suffered by the Applicant.

15. On 4th August 2000 a statement of opposition was filed by the Respondents grounded on an affidavit of Noel Waters, Principal Officer in the Department of Justice, Equality and Law Reform, sworn on 31st July 2000. As in the Adam case the Respondents also issued a notice of motion dated 4th August 2000 seeking similar orders discharging the order granting leave and/or an order striking out or dismissing the Applicants proceedings on the grounds that they disclose no reasonable cause of action, were frivolous and/or vexatious and were doomed to fail.

16. With his affidavit Mr Waters exhibits a considerable amount of documentation concerning Mr Iordache's application for refugee status. From these documents a certain amount of the factual background concerning the Applicant can be ascertained. The Applicant arrived in Ireland in September of 1997. He is a Romanian National. He applied for refugee status on his arrival in Ireland. His application was processed by an officer of the Department of Justice, Equality and Law Reform and was refused on the 25th May 1999. Mr Iordache appealed against this refusal on 3rd June 1999. At this stage he had the assistance of his then solicitors Messrs James Watters and Company, who carried out considerable correspondence on his behalf with the asylum authorities. The various documents involved in the appeal proceedings were processed. The appeal was heard by Mr Eamonn Cahill B.L. on 25th November 1999. Mr Cahill issued a decision on the 21st December 1999.

17. From a perusal of the papers exhibited by Mr Noel Watters in his affidavit it appears that at both hearings Mr Iordache claimed that he had been persecuted for political reasons in Romania, in particular by the Mayor of the local town and his family. He also claimed that he was homosexual and was likely to be persecuted for his sexual orientation if he returned to Romania.

18. In his decision Mr Cahill stated:

19. Mr Iordache and his solicitor were notified of the decision on the appeal on the 20th January 1999. Through his solicitor Mr Iordache appealed to the Minister for Justice, Equality & Law reform to allow him to remain in Ireland on humanitarian grounds. It appears that this also was refused since a deportation order was made by the Minister on the 12th April 2000. The making of this deportation order was notified to the Applicant on the 28th April 2000 and his judicial review proceedings were issued, with Mr Pendred as solicitor, on 5th May 2000.

20. The Applicant himself swore an affidavit on 6th October 2000, subsequent to the issue of the Respondent's notice of motion and statement of opposition, in which he avers that he suffered persecution because he practised homosexuality and for political reasons. He goes on to state:

21. It would appear from this affidavit that the Applicant's major ground for fearing to return to Romania is that he will be persecuted for his homosexuality. This ground was not even mentioned in the original grounding affidavit of his application for judicial review which was sworn by Mr Pendred.

22. The Respondents motion came on for hearing before the learned President of the High Court on the 23rd January 2001. The President delivered his reserved judgment and made the consequent orders on the 30th January 2000. For the reasons set out in his judgment the learned President held that:

23. As a consequence of his judgment the learned President ordered that the Applicant's proceedings be struck out on the grounds that they disclose no reasonable cause of action and were frivolous and vexatious and also ordered the discharge of the order of the High Court dated the 5th day of May 2000. The learned President also directed that in the event of an appeal of his order to the Supreme Court that the same should be heard at the same time as the proceedings, Adam and Others v The Minister for Justice, Equality and Law Reform. The President also refused a stay on his order.

24. Two issues arose on the hearing of these appeals by this Court. The first was whether a judge of the High Court has jurisdiction to discharge the order of another judge of the High Court granting leave to an Applicant, on the basis of an ex parte application, to issue judicial review proceedings.

25. The second was whether, in both the Adam and the Iordache cases, the Applicants had in their original statement of grounds and affidavits made out a stateable or arguable case for the relief they sought by way of judicial review.

26. In their written submissions to this Court Counsel for both sides also dealt with issues concerning the status and effect of the European Convention on Human Rights in Irish law, but this aspect of the matter was not fully argued at the hearing before the Court.

27. Senior Counsel for the Applicants in the Adam proceedings, Mr Shipsey, submitted that the entire scheme of judicial review proceedings, as governed by Order 84 of the Rules of the Superior Courts was radically different from that of ordinary plenary proceedings. The approach of the Court in the case of Barry v Buckley [1981] IR 306 was not suitable for judicial review proceedings and was not applicable to them. In ordinary plenary proceedings the originating pleadings - plenary summons, statement of claim - were produced solely by the Plaintiff and as such were governed by Order 19 Rule 28 of the Rules of the Superior Courts which enabled the Court to order any pleading to be struck out on the ground that it disclosed no reasonable cause of action. This provided a necessary "filtering mechanism" whereby the Court could prevent cases with no rational basis coming to hearing.

28. In the case of judicial review, however, this "filtering mechanism" was already in place. Order 84 set out the necessity for the Applicant in judicial review proceedings to obtain leave from the High Court before his proceedings could be issued. Leave would not be granted in the first place if the proceedings were baseless, vexatious or frivolous. The test to be applied by the Court in granting leave had been set out by the Court in G v Director of Prosecutions [1994] 1 IR 374 . In his judgment in that case Finlay C.J. had set out the test as follows:

29. In the same case Denham J. had referred to the burden of proof in an application for leave to issue judicial review proceedings as follows:

30. Mr Shipsey conceded that the High Court had an inherent jurisdiction to set aside the grant of leave in judicial review proceedings where there had been material non-disclosure or other conduct which was akin to lack of bona fides on the part of the Applicant, and in this connection he referred to the judgment of Kelly J. in Adams v Director of Public Prosecutions (unreported High Court April 12th 2000). This, he said, was an exception to the general rule and there was no suggestion of lack of bona fides in connection with the present application. In his judgment in the instant case O'Donovan J. had accepted that the case was not covered by Order 19 Rule 28 but had held that the Court had a wide ranging inherent jurisdiction to set aside the grant of leave and, indeed, to strike out the entire proceedings. In so doing the learned trial judge had relied on the judgment of McCracken J. in Voluntary Purchasing v Insurco Limited [1995] 2 ILRM 145 . That case was not, however, a judicial review case and there had been no comparable filtering and evaluation procedure applied to it. It did not, therefore, provide an authority for the proposition that the Court had an inherent jurisdiction to set aside the leave already granted in judicial review proceedings. Indeed there was no authority for such a proposition.

31. Mr Shipsey also argued that, if this Court held that there was an inherent jurisdiction to set aside leave which had already been granted, this should be done only in extreme circumstances, where it was crystal clear that the application did not meet the test set out in G v DPP. Order 84 already provided a number of protections for public authorities who were likely to be subject to judicial review. The filtering process of seeking leave existed to prevent undue and unnecessary harrying of public authorities.

32. As far as the second issue was concerned, Mr Shipsey submitted that the application as set out in the pleadings met the tests set out in G v DPP . He referred to the decision of Keane J. (as he then was) in Irish Permanent Building Society v Caldwell [1979] ILRM 273 where the learned judge held that the jurisdiction to strike out proceedings ought not to be exercised in cases raising complex and novel issues of law. Mr Shipsey submitted that in the instant case important new issues of law were raised in regard to the relationship between Irish law, the Treaty of European Union, and the European Convention on Human Rights. He accepted that the averments of the Applicants solicitor, Mr Pendred, in his original grounding affidavit were somewhat bare, but submitted that the pleadings were open to amendment and that further affidavits could be filed.

33. Senior Counsel for Mr Iordache, Mr Horgan, adopted Mr Shipsey's arguments. He went on to refer to the judgment of Kelly J. in Landers v Garda Siochana Complaints Board [1997] 3 IR 347 where the learned judge had accepted that the Applicants' judicial review proceedings could be amended and that their departure from the procedure provided in Order 84 was not fatal to their claim in circumstances where the procedure actually adopted did not amount to abuse of process of the High Court. Kelly J. had held that an action should not be dismissed if the statement of claim admitted of an amendment which might save it. Mr Horgan submitted that undue obstacles should not be put in the way of an Applicant seeking leave to issue judicial review proceedings; amendments of the pleadings should be permitted and there was power to extend time where necessary. Counsel went on to argue that by virtue of its ratification of the Treaty of the European Union the State was estopped from asserting that the Irish Courts had no part in the enforcement of the provisions of the European Convention on Human Rights. The jurisprudence of the European Court of Justice together with the provisions of Title 1 of the of Treaty of the European Union contradicted the proposition that an argument on behalf of the Applicant that the State had violated his rights under the European Convention was doomed to failure before an Irish Court. It was open to an Irish Court to draw inspiration from the European Convention in order to determine whether an Applicants' right to fair procedures had been violated.

34. Senior Counsel for the Respondents in both cases, Mr O'Donnell, dealt first with the issue of the jurisdiction of the learned High Court Judges to discharge the leave to issue judicial review proceedings which had already been granted by the High Court. He submitted that the conclusions reached by O'Donovan J. and Morris P. in their judgments were justified by fundamental principle, as well as by the authorities referred to in the judgments. It had been suggested that where a Respondent in judicial review proceedings was aggrieved by the making of an order granting leave the correct remedy was to bring an appeal to this Court. In practice such an appeal would raise serious difficulty and would necessarily involve this Court considering arguments in evidence that had never been considered by the High Court. In such circumstances this Court would effectively be acting as a Court of first instance rather than a Court of appeal, a role which the Court had repeatedly and empathetically rejected.

35. Counsel for the Applicants had conceded that the High Court had jurisdiction to discharge the order giving leave where there was a lack of uberrima fides in the original ex parte application. Once the principle of inherent jurisdiction was accepted it must extend to other situations where the case made at the ex-parte stage could be shown , on application by the Respondent, to be unstateable, without basis, or vexatious. He agreed with Mr Shipsey that this course should only be taken in a very clear case but he was in no doubt that the jurisdiction existed.

36. The essential complaint made by the Applicants in the proceedings was that the Minister was obliged to take into account the provisions of the European Convention on Human Rights in exercising his powers in regard to Asylum seekers and refugees. It was common case that the Convention had not as yet been incorporated into domestic law in this state. Mr O'Donnell referred to the decision of this Court in In Re O'Láighleis [1960] IR 93 and to the judgment of Barrington J. in the more recent decision in the case of Doyle v Commissioner of An Garda Siochana [1991] 1 IR 249 . Barrington J. had stated (at page 263):-

37. Mr O'Donnell accepted that both this Court and the High Court had had recourse to Convention jurisprudence in, for example, constitutional proceedings, but such recourse to the Convention did not involve its enforcement by an Irish Court as was sought in the present proceedings.

38. As far as Mr Horgan's argument on the effect of Title 1 of the Treaty on European Union was concerned, Mr O'Donnell did not accept that Article F.2 of the Treaty had the effect of incorporating the European Convention into the domestic law of the State. In particular it could not do so in relation to an area of law such as immigration policy which fell outside the field of Community law.

39. Through their Counsel, the Applicants in both sets of proceedings argued that, once leave to issue judicial review proceedings has been granted, the High Court has no jurisdiction to discharge that leave. At the stage of the ex parte application for leave the necessary filtering procedure has taken place, and the Court has decided that the application has met the tests set out in G v DPP which I have quoted above. If the Respondent wishes to challenge this decision, the correct remedy is to appeal to this Court.

40. In the instant cases both O'Donovan J. in the Adam case and Morris P. in the Iordache case held that the High Court had an inherent jurisdiction to discharge the order giving leave and to strike out the proceedings. Both judges relied in the main on the decision of McCracken J. in Voluntary Purchasing v Insurco Limited [1995] 2 ILRM 145 , and in particular on the passage at page 147 of the report where the learned judge stated:-

41. Both Mr Shipsey and Mr Horgan correctly point out that Voluntary Purchasing v Insurco is not a judicial review case, and that the pleadings in that case had not been subjected to the filtering process of the application for leave. So far as I am aware they are also correct in saying that there is no specific Irish authority prior to the present cases which establishes that the High Court has jurisdiction to discharge an order for leave already given.

42. Even if it is true that the jurisdiction point has not specifically been argued and decided, there are, however, cases where the inherent jurisdiction of the Court to discharge leave has been assumed and put into effect. Mr Shipsey himself has referred to the judgment of Kelly J. in Adams v DPP (High Court unreported 12th April 2000), where the learned trial judge discharged the leave earlier granted by O'Neill J. as against the third named Respondent, described in the pleadings as "Her Majesty's Secretary of State for Home Affairs" . Mr Shipsey distinguished the Adams case as being a case where there was material nondisclosure or other conduct akin to a lack of bona fides on the part of the Applicant. He accepted that the Court had jurisdiction to discharge the leave in such circumstances.

43. In the first place, in my view, Kelly J's decision in the Adams case was by no means solely dependant on material nondisclosure or lack of bona fides . In his judgment he dealt in detail with the lack of any proper service of the proceedings and the nature of the proceedings themselves before turning to consider what he saw as lack of bona fides . Secondly, the Adams decision was under appeal at the time when the instant cases were heard before this Court. Judgment has now issued on the appeal (6th March 2001); this Court upheld the learned High Court judge. However, this Court dealt with the matter as being one where the Court lacked basic jurisdiction and where the case was unstateable; it did not deal, other than by a passing reference, to the matter of bona fides .

44. In the earlier case of Landers v The Garda Complaints Board [1997] 3 IR 347, which was also a judicial review case in origin, the third named Defendant applied to have the claim against him struck out, relying on the inherent jurisdiction of the Court. While the circumstances were not the same, and in the event Kelly J. refused to strike out the proceedings, it does not appear to have been suggested that the Court had no jurisdiction to strike out what were basically judicial review proceedings.

45. In their book Administrative Law in Ireland, Hogan and Morgan discussed this question at pages 708 to 709 under the heading "Appealing or setting aside the grant of leave" , as follows:-

46. In England the rules governing the application for leave to issue judicial review proceedings differ considerably from the Irish rules; nevertheless the issue of the discharging of leave once given has also arisen for consideration. In the most recent edition of Lewis: Judicial Remedies in Public Law, the author states at page 283 para 9-060:

47. In De Smith, Woolf and Jowell: Judicial Review of Administrative Action the question is dealt with at page 667 para 15.025 as follows:-

48. Both English authors refer to the case of R v Secretary of State for the Home Department (ex parte Chinoy) [1991] C.O.D. 381 . In that case the Applicant sought to judicially review the decision of the British Home Secretary to surrender him to the United States authorities. Leave was granted by Simon Brown J. and the Home Secretary subsequently sought to set aside that leave. His application was heard by two judges of the Queens Bench Division. In the course of his judgment Bingham L.J. referred to the argument made by Counsel on behalf of the Applicant, who had submitted that if there was any jurisdiction to set aside the order giving leave it was a jurisdiction which might only be exercised in the case of nondisclosure or in the case of new factual developments since the date of the grant of leave. The learned judge commented:-

49. In my view the learned trial judges in the instant cases, O'Donovan J. and Morris P. , were correct in deciding that this Court has a jurisdiction to set aside an order granting leave which has been made on the basis of an ex parte application. However, I would accept the submission of Mr Shipsey, with which Mr O'Donnell agrees, that this jurisdiction should only be exercised very sparingly and in a very plain case. The danger outlined by Bingham L.J. in the passage quoted above would be equally applicable in this jurisdiction. One could envisage the growth of a new list of applications to discharge leave to be added to the already lengthy list of applications for leave. Each application would probably require considerable argument - perhaps with further affidavits and/or discovery. Where leave was discharged, an appeal would lie to this Court. If that appeal succeeded, the matter would return to the High Court for full hearing followed, in all probability, by a further appeal to this Court. Such a procedure would result in a wasteful expenditure of Court time and an unnecessary expenditure in legal costs; it could be hardly said to serve the interests of justice. The exercise of the Court's inherent jurisdiction to discharge orders giving leave should, therefore, be used only in exceptional cases.

50. Should, then, the inherent jurisdiction be used in the instant cases? I would accept that Mr Shipsey is correct in referring the Court to the tests set out by the then Chief Justice in G v DPP and to the burden of proof as set out by Denham J. in the same case. The first test is whether the Applicants have "a sufficient interest in the matter". In the Adam proceedings it is established by the affidavit of Michael Quinn that quite a number of the listed Applicants either no longer have a proper interest in the proceedings because they have been permitted to remain in this country, or have not yet acquired such an interest, since their applications for refugee status have not yet been decided. Even if one considers the remaining Applicants, they have in common the fact that they are Romanian nationals; that they are now, one presumes, in this country; and that they do not wish to return to Romania. These simple facts do not go far enough to show, in the case of each Applicant, what is his or her specific "interest" in the proceedings. I would be in agreement with O'Donovan J. in this case in holding that it is a most unsuitable procedure to have the applications of a large number of Applicants grouped together in one set of pleadings, grounded on one non-specific affidavit, as they are here.

51. However, the most serious difficulties for the Applicants in both cases arise under tests (b) and (c) as set out in G v DPP - that the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review and that on those facts an arguable case in law could be made that the Applicant was entitled to the relief which he sought.

52. In the present cases the applications were initially grounded on the affidavits of Mr Pendred, Solicitor, which are couched in the most general terms. He avers that the Applicants are subject to persecution in Romania in various ways which reflect the wording of Articles of the ECHR. Subsequent to the granting of leave a number of further affidavits were sworn by individual Applicants. Again these were in very general terms, simply expressing a fear that if the Deponent is returned to Romania he or she will suffer persecution and abuse of his or her human rights. The affidavits exhibit in each case the documents relevant to the Applicants' application for refugee status and its rejection by the authorities. It is, it seems, left to the Court itself to peruse these documents and to extract from them what might be actual grounds for judicial review. This is in no way a satisfactory procedure. It cannot be too often said that judicial review is not a further appeal against a decision which the Applicant wishes to overturn. It is a review of the manner and method whereby that decision was reached to ascertain whether correct procedures were used which were intra vires the decision maker and in accordance with natural and constitutional justice, and, in some cases, whether the decision was "reasonable" in the sense defined in the Stardust and O'Keeffe decisions. In an application for leave to issue judicial review proceedings in regard to a decision made by a public authority the Applicant must set out on affidavit at least sufficient detail to establish the manner in which he claims the decision making procedure was flawed or in error.

53. In the instant cases I am not to be taken as saying that grounds for judicial review could not in any circumstances be made out by any or all of the Applicants. Coincidentally, very shortly after the hearing of the present appeals by this Court, a judgment of the English Court of Appeal in an asylum case was reported - R v Secretary of State for the Home Department, ex parte Turgut [2001] 1 All ER 719 . This case concerned a Turkish Kurd who had entered the United Kingdom illegally and claimed asylum. His claim was rejected by the Secretary of State and on appeal by the special adjudicator. After the Immigration Appeal Tribunal had refused him leave to appeal, Mr Turgut applied to the Secretary of State for exceptional leave to remain. This too was refused. The Applicant challenged these decisions on the grounds of irrationality and the judgments of Simon Brown L.J. and Schiemann L.J. (with both of whom Thorpe L.J. agreed) contain a most interesting and far reaching consideration of the approach of the Courts to the rationality or otherwise of decisions in asylum cases in the light of the European Convention on Human Rights. In that case some 1500 pages of specific evidence were submitted to the Court relating to the danger that the Applicant's human rights would be abused if he was returned to Turkey, and the challenge to the rationality of the Respondent's decision was fully pleaded.

54. On the pleadings in the instant cases, however, there is no way in which either this Court or the Court below could assess whether the facts support a stateable ground for the relief sought, because in neither the Adam proceedings nor the Iordache proceedings did the pleadings set out any specific evidence that the Minister had failed to have regard to the situation in Romania when considering the position of the Applicants. Nor was there any evidence that appropriate procedures had not been complied with or that there was any breach of the principles of natural or constitutional justice. It is not so much that the Applicants have not put forward a stateable case as that they have not put forward any case at all within the confines of judicial review proceedings.

55. For these reasons I would dismiss both appeals and affirm the orders of the learned High Court judges. In the circumstances it is unnecessary to consider such arguments as were made concerning the European Convention on Human Rights and the Treaty of European Union.

56. These two cases were heard together and, I am satisfied, raise issues so similar that they can be dealt with in a single judgment.

57. In the first set of proceedings there are 48 Applicants/Appellants. I shall refer to these for the sake of brevity as “Adam”. All of the Applicants are stated in the proceedings to be persons who apprehend being deported from the State. On the 24th January, 2000 the High Court (Kinlen J.) gave them leave to apply for judicial review. Specifically they were given leave to seek the following reliefs:-

58. The relief which Mr. Adam and others were given leave to seek comprised part only of the relief sought in the statement grounding their application for judicial review.

59. On the 5th May, 2000 Mr. Iordache was granted leave by the High Court (Laffoy J.) to seek the following reliefs by way of application for judicial review:-

60. Mr. Iordache’s claimed reliefs were identical to those claimed by Mr. Adam and others. Mr. Iordache was, however, granted leave to seek two reliefs which was refused to Mr. Toma and his fellow applicants.

61. On the 27th June, 2000 the Respondents issued, in the Adam proceedings, Notice of Motion seeking:-

62. At the same time as this Notice of Motion was issued, a Statement of Opposition was filed.

63. The Motion was heard on the 2nd October, 2000 by O’Donovan J. who delivered judgment on the 16th November, 2000. The learned judge held:-

64. The course of the Iordache proceedings was similar. The Respondents filed a Statement of Opposition and a similar Notice of Motion. This was heard by the learned President on the 23rd January, 2001 and he delivered a reserve judgment on the 30th January, 2001. He made similar findings in relation to points (i),(ii) and (iii) above and further held that the Applicant’s claim for an Order of Mandamus compelling the State to bring proceedings against Romania was doomed to fail because such an order would constitute an improper interference by the Court with functions entrusted to the Government under Article 29.4.1 of the Constitution.

65. The issues argued on the hearing of this appeal are as follow:-

66. This was by far the issue most emphasized on the hearing of the Appeal. It is argued for the Applicants that, save in very narrow circumstances, there was no jurisdiction in a judge of the High Court to set aside an order granting leave to apply for judicial review which had been granted by another judge of that Court. It was conceded that such a power existed in the case of demonstrated nondisclosure. It was further conceded in argument on behalf of the Applicants in Adam that there might be a power to grant an order discharging an injunction given at the leave stage. In general, however, it was contended that no such power existed. The power conferred by Article 19 of the Rules, it was submitted, was confined to plenary proceedings. This distinction was a justifiable one, it was said, because judicial review proceedings were already subject to a filter in the form of the need to apply to a judge of the High Court for leave. This, it was submitted, was a qualitative difference from plenary proceedings. It was further submitted that since the legislature has in some cases required applications for judicial review to be made on notice, the Court should not entertain an application to vacate leave in any other cases, because this would tend unwarrantedly to assimilate the majority of cases where no notice was required to the exceptional cases where it was. Moreover, it was contended, the relatively rapid disposal envisaged by Order 84 for judicial review cases removed the need for the existence of a jurisdiction such as is claimed by the Respondents.

67. It was submitted that a Respondent aggrieved by the very grant of leave had a remedy in the form of an appeal to this Court, but no other.

68. In my view, any order made ex parte must be regarded as an order of a provisional nature only. In certain types of proceedings, either the apparent requirements of justice or the requirements of its administration mean that a person will be affected in one way or another by an order made without notice to him and therefore without his having been heard. This state of affairs may, depending on the facts, constitute a grave injustice to the Defendant or Respondent. In the context of an injunction, only a very short time will normally elapse before the Defendant has some opportunity of putting his side of the case. In judicial review proceedings the time before this can occur will normally be much longer. This clearly has the scope to work an injustice at least in some cases.

69. Considerations such as those mentioned above led to the observations of McCracken J. in Voluntary Purchasing v. Insurco Limited [1995] 2 ILRM 145:-

70. On the present application, it was sought to distinguish the observations of McCracken J. on the basis that they were inapplicable to judicial review proceedings and were irrelevant to an application such as the present. In fact, however, the passage cited above was followed by Kelly J. in John Adams (Applicant) v. The Director of Public Prosecutions & Ors (High Court unreported 12th April 2000. This was a judicial review case and the learned judge applied precisely the same principles. He also referred to another case, Schmidt v. The Home Secretary of the Government of the United Kingdom & Ors. (High Court unreported Murphy J. 19th January, 1994) where a similar jurisdiction had been exercised.

71. The same view was taken in Northern Ireland in Re Savages Application [1991] NI 103. In that case, Carswell J. said:-

72. The last mentioned case was decided before the Rules of Court applicable in the United Kingdom changed to provide specifically for the type of application which is now made. That change followed a report of the English Law Reform Commission entitled Administrative Law: Judicial Review and Statutory Appeals (1994). At paragraph 9.4 of the report, describing the English practice as it then was the Commissioners said:-

73. The report cites a number of English cases where this step had been taken, in the inherent jurisdiction of the Court: see R.v. Home Secretary, ex parte Sholola [1992] COD 226 and R v. Home Secretary ex parte Chinois [1991] COD 381.

74. The amended English rules which followed the report of the Law Reform Commission was the first regulation by Rules of Court of the jurisdiction to set aside a grant of leave to seek judicial review. There had however, been a practise direction in the early 1970’s to regulate the inherent discretion of the UK Courts to set aside an order made ex parte: see Baker v. Noel (Practice Note) [1971] 1 WLR 803.

75. Accordingly it appears that both in this jurisdiction, and in the neighbouring jurisdictions (while their Rules of Court in relation to judicial review were virtually identical to those now obtaining here) the inherent jurisdiction to strike out an order giving leave to seek judicial review, was recognised. Indeed, even the Appellants in the present case do not seek wholly to deny the existence of the jurisdiction: both Mr. Shipsey S.C. and Mr. Horgan S.C. conceded it to exist in the case of bad faith and Mr. Shipsey, at any rate, in a case where an injunction had been granted at the leave stage. Towards the end of the argument I understood Counsel for both Appellants to emphasise an alternative approach: that the fact that the Applicants for judicial review had to go through a filtering process in the form of the ex parte application should put them in some respect in a stronger position than a Plaintiff faced with an application to dismiss his case as disclosing no reasonable form of action.

76. In my view, once it is accepted that the jurisdiction invoked here by the Respondents exists, it is difficult to justify any hard and fast restrictions on it. It was submitted that the Respondents here, being public authorities, are incapable of suffering the sort of loss that an individual or even a corporate Defendant might. The present case was contrasted with the circumstances obtaining in the leading case of Barry and Buckley [1981] IR 306, where Costello J. observed:-

77. It is certainly true that public authorities such as those who are the Respondents in the present cases cannot suffer certain types of damage which an individual or corporate Defendant can. They are immune to the risks of commercial disaster and mental distress. But I do not accept that, because of that characteristic, the orders granted have no affect upon them. The Applicants in the present case have secured a stay on the orders, actual or potential, for their deportation: the authorities are unable to discharge their functions in accordance with law. Moreover, I would accept the submission made on their behalf on the hearing of this appeal that the pendency of the proceedings is in itself an effect. In every case a grant of leave will give rise to the incurring of costs and to a certain generalised doubt or “chilling affect” in relation to the discharge of the functions in question. There is a public interest in the due and rapid discharge of public duties, including duties of enforcement, which includes but is not limited to an interest in those duties being discharged fairly.

78. I cannot accept the submission that, because the proceedings in question are judicial review proceedings, they would be rapidly disposed of with a comparatively slight degree of delay and interference with the discharge of statutory functions. Judicial review proceedings, especially in recent times, are not necessarily more rapid than any other form of proceedings and can be less so. In the Adam case, several months were apparently occupied simply in checking the up-to-date status of the 50 odd Applicants, a process which led to some 14 of them being struck out of the proceedings by consent. If the proceedings are not struck out at the present stage, there will predictably be a lengthy process of discovery, and considerable expense in the conduct of the opposition to the substantive application. For all these reasons, I consider that the grant of the leave to seek judicial review, especially when coupled with a stay, is quite sufficient to constitute the Respondents as parties affected by an order. This is in my view gives rise to the corollary that they must in a suitable case be entitled to attack the grant of leave.

79. The Appellants conceded in a course of argument that the Respondents were entitled to appeal against the grant of leave. I do not consider that this would have been an appropriate course, or indeed that it is necessarily open to the Respondents at all. If the Respondents had appealed against the orders granting leave, the hearing of the appeal would necessarily have involved this Court in considering arguments and perhaps evidence (that of the Respondents on Affidavit) which had never been considered by the High Court. This does not appear appropriate in an appellate court. In The State (Hughes) v. O’Hanrahan [1986] ILRM 218, McCarthy J. doubted whether any party other than the Applicants could appeal against an order ex parte, no doubt on the basis just indicated.

80. I do not consider that the hearing in the High Court of an application to strike out a grant of leave is in any sense an appeal from the judge who granted the original leave. On the contrary, it is a proceeding of an entirely different nature, being inter partes rather than ex parte. Moreover, as the existence of the present appeal demonstrates, the decision on such an application is itself subject to the right of appeal to this Court. On the hearing of such an appeal, unlike an appeal from the grant of an order ex parte, the Court is manifestly exercising an exclusively appellate jurisdiction in relation to an order of the High Court made after both parties have been heard.

81. It was frankly conceded by Mr. Horgan S.C. that his arguments based on the European Convention required him to establish as a preliminary that the decision of this Court in Doyle v. The Commissioner of the Garda Síochána [1999] 1 IR 249 was wrong. Specifically, he would have to circumvent the holding, at page 269 of the report:-

82. In my view, no argument was addressed to the Court on the hearing of this appeal which provided any basis for a departure from that recent and authoritative decision. In fact, no argument whatever was advanced for the proposition that Doyle was wrongly decided: that proposition was merely asserted.

83. In the circumstances there is no need to do more, on this aspect of the case, than respectfully to follow the decision of Barrington J. in Doyle. I wish to emphasise, however, that I am far from holding that the result of this case in any of its aspects would have been different had it been appropriate to consider

84. I turn now to the merits of the application: whether, indeed, either set of proceedings discloses a reasonable cause of action or whether the proceedings are frivolous or vexatious or doomed to fail.

85. Both sets of proceedings are extraordinary in their form. All of the applicants are persons who had been unsuccessful at each stage of the statutory procedures which they have gone through. That is, they have been found to have no personal fear of persecution. They do not challenge these decisions on any recognised judicial review basis but instead mount a challenge substantially based on the proposition that Romania is a country to which deportation should not be permitted. This, in turn, is based not on evidence in any recognisable form but merely on “Counsels advice”. In relation to the Adam proceedings, there is no reference to the individual circumstances of the respective applicants. These proceedings have correctly been stigmatised in argument to this Court as “single transferable proceedings’, that is to say proceedings to which any person faced with a prospect of deportation to Romania could subscribe. Mr. Iordache, whose proceedings are somewhat more specific to his individual circumstances in so far as he complains of the law of Romania relating to homosexual practices and of certain non-political disagreements he has had with people who hold or have held minor local office, are nevertheless both vague and contradictory. Although this Applicant was granted broader relief in the High Court than his compatriots in Adam his real position, as far as evidence goes, is indistinguishable. In no case has any serious effort been made to establish, as opposed to assert, what is alleged about the Romanian state. No applicant has made out a credible case that he or she has an individual fear of persecution. And no applicant has made out any case at all, even the barest, capable of sustaining an attack on the procedures which have led to their liability to deportation.

86. This situation is in dramatic contrast with that obtained in the well known case of Finnucane v. McMahon [1990] ILRM 505. There, the Plaintiff, who was a person whose extradition to Northern Ireland was sought, established by specific and detailed evidence that he and others in his position had already been subjected to brutal treatment at the hands of certain State authorities in the jurisdiction requesting his extradition and had a well founded fear of being again so subjected. Here, no demonstrated individual apprehension of any sort has been demonstrated or even (except for Mr. Iordache) sought to be demonstrated. The proceedings in part relate to complaints of a sort which are appropriate to a political rather than a legal forum. They are scarcely recognisable as legal proceedings at all and are totally deficient in their failure to provide any basis, even the vaguest, for challenging the decisions of the Irish authorities to which they relate.

87. Mr. Iordache has been given leave to seek an order compelling the Irish state to institute proceedings against Romania. I consider that no Court has jurisdiction to direct any such order to the executive. In the words of Article 29.4.1 of the Constitution:-

88. In my view, it would fly in the face of this unambiguous provision if the Courts were to take it upon themselves to issue a mandatory order to the State, the Government or the Attorney General directing the institution of proceedings under the Convention on Human Rights against another sovereign State. To do so would be very specifically to usurp a function which the Constitution reserves to the Government. Any such step would be gravely subversive of the constitutional separation of powers and it would be wrong of the Court to contemplate it.

89. The Applicants’ proceedings are of the baldest kind, without any basis in law or fact, and, with the exception of Mr. Iordache’s case, without any attempt to rely on proved individual circumstances either in relation to attacking the decisions taken in respect of the individual applicants or on the broader aspects of their claim. In my view they are all frivolous, vexatious and doomed to fail: indeed they are scarcely recognisable as legal proceedings at all.

90. So to hold is not to exclude the possibility that an applicant might, in proper proceedings, challenge a decision to deport him to a particular country. The very recent English case of R. v. Secretary of State for the Home Department , ex parte Turgut [2001] 1 AER 719 is an example of such proceedings. It is clear from the report that the proceedings were properly constituted as a challenge, on the basis of irrationality, to a decision of the Home Secretary that there were no substantial grounds for believing that the Applicant would be at real risk of ill treatment if returned to Turkey. The report also illustrates the painstaking assembling of a formidable body of evidence and the focusing of such evidence on the Applicant’s personal circumstances. In referring to this case I am not ignoring the somewhat different context of Turgut arising from differences between Irish and UK law. Nor am I holding that a case precisely modelled on that one would necessarily pass muster in this jurisdiction. Turgut’s application was unsuccessful in the event but it was a case pleaded in a recognisable legal form, directly focused on individual circumstances, and supported by evidence in a form acceptable to the English Court. In all these respects it is starkly in contrast with either of the present proceedings.

91. The Appellant’s final point in relation to these matters was that the Court should not strike out the proceedings if they were capable of being saved by amendment. In my view, nothing which could properly be described as amendment could save these proceedings. If, hypothetically, the applicants or any of them have any statable cause of action, it would require to be expressed in proceedings in which bear no resemblance whatever to those presently under consideration.

92. I would only add that I entirely agree with the observations of O’Donovan J. in the first of these cases in relation to the impropriety of the joinder in one set of proceedings of a large number of plaintiffs without any attempt to distinguish their individual circumstances or to show any basis on which they could all feature as applicants in a single action.

93. I would dismiss the appeal in each case and affirm the order of the learned High Court Judge.