THE SUPREME COURT
[Appeal No. 2008/338]
[Appeal No. 2008]
[Appeal No. 2008/339]
Clarke C.J.
O'Donnell J.
Dunne J.
BETWEEN
PATRICK REEN
APPLICANT
AND
COLM MURPHY, DONAL BRENDAN O'CONNELL, MICHAEL O'CONNELL,
C.F. O'CONNELL AND KEVIN J. WHITE
RESPONDENTS
AND MARGARET LUCEY, IRELAND (THE ATTORNEY GENERAL), THE LAW SOCIETY OF IRELAND, THE BAR COUNCIL OF IRELAND, MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND DIRECTOR OF PUBLIC PROSECUTIONS
NOTICE PARTIES
Judgment of Ms. Justice Dunne delivered the 18th day of October, 2017
Judicial review proceedings were commenced by the appellant in this case (hereinafter referred to as Mr. Reen) on the 13th August, 2008 when an application for leave to apply by way of judicial review for a variety of reliefs against a number of parties was granted by the High Court (McMahon J.). Leave was granted to apply for judicial review for all the reliefs sought by Mr. Reen set out in his Statement to ground Application for Judicial Review and supported by an affidavit sworn by Mr. Reen on the 5th August, 2008.
Background
The starting point in relation to these proceedings could be said to have been the death of Mr. Reen's father, Jeremiah Reen, on the 15th January, 1965. Mr. Reen's father was approximately sixty four years of age when he died and Mr. Reen was eleven years of age at that time. Mr. Reen senior was survived by his wife, Hannah Reen, Patrick Reen, the appellant in these proceedings and by a daughter, Catherine Reen. The death of Mr. Reen senior must have been a traumatic event for all concerned particularly bearing in mind that Mr. Reen was just eleven years of age at the time concerned. Letters of administration to the personal estate of Mr. Reen senior were granted to his widow on the 1st September, 1965.
Unfortunately, many years after the death of Mr. Reen senior, issues arose in relation to the ownership of Reen's Bar, Bearings Cross, Bearings, County Cork. Mr. Reen in his affidavit grounding the application for judicial review stated that following the death of his father in January 1965, that "our livelihood was derived from a going concern that is a licensed premises with a sub-post office attached and two holdings of agricultural land". Mr. Reen went on in his affidavit to state that his late sister used to work in the family pub business from time to time and that she also worked periodically as a teacher over the years. Mr. Reen said that his mother gave to his sister the purchase cost of a house in Ballincollig, County Cork in the year 1976 and that his sister lived in that house from then onwards and worked in the family pub on a part-time basis in order to repay her debt to her late mother. Various other matters in relation to Mr. Reen's sister are described in the affidavit but it is not necessary to set those out in detail here. Suffice it to say that Ms. Reen formed a personal relationship with Donal Brendan O'Connell, a solicitor, (the second named respondent) and they lived together for a number of years in Ballincollig, County Cork in Ms. Reen's home. Hannah Reen died on the 7th February, 1985 at the age of seventy nine. Catherine Reen died at the age of fifty three on the 27th February, 2004 and Mr. O'Connell who features in these proceedings died on the 6th March, 2008 and was seventy six when he died.
Mr. Reen has made various observations as to the mental capacity of his mother, his sister and Mr. O'Connell. In the case of his mother, he pointed out that at the time of her death, it was noted in her death certificate that she suffered from senile dementia and had done so for some four years prior to the date of her death. In the case of his sister, he observed that her death certificate stated that the cause of death was due to alcoholic related liver failure – “longstanding and right basal pneumonia (two weeks)”. Finally, he observed that Mr. O'Connell was also stated on his death certificate to suffer from dementia. Subsequently in submissions, Mr. Reen pointed out that Mr. O'Connell had been a ward of court for a approximately four years prior to his death.
The essence of Mr. Reen's current complaints can be seen in further submissions of Mr. Reen furnished to this Court on the 19th May, 2017 in which he stated as follows:
"It was Mr. Colm Murphy business partner of Donal Brendan O'Connell who made my late sister's last will. (This is a conflict of interests as he was a business partner to her partner Donal Brendan O'Connell). In her will she left everything to her lifelong partner Mr. O'Connell, nothing to her only brother, the only member of her immediate family left. . . . The family property was not her property to donate in her will and this has been under dispute since 1993 after the death of our late mother Hannah Reen."
At various stages in the course of these proceedings, Mr. Reen has furnished written submissions in relation to this matter to the Court. In a letter of the 17th May, 2017, he pointed out that his late father had inherited the estate of his father who died in 1942 and that in turn his grandfather inherited his estate from Mr. Reen's great-grandfather, who founded the premises known as Reen's Public House, together with the two agricultural holdings mentioned previously in 1860. Thus as he sets out, the public house at the centre of these proceedings has been passed down from father to son for a number of generations. That came to an end in circumstances where ultimately the property was left to Mr. Reen's sister Catherine who then left the property by her will to Donal Brendan O'Connell. Thus, the question of inheritance is at the centre of these proceedings. Mr. Reen is strongly of the view that the property established by great grand father in 1860 should have been inherited by him in turn, like his father and grandfather.
Mr. Reen in the course of the various submissions before the Court has also referred to issues relating to the estates of other close relatives and has complaints to make in respect of those matters but those issues are not encompassed in these proceedings and for that reason I do not propose to refer to those again.
Other matters
Before looking at the proceedings before this Court in any detail it would be helpful to explain two further matters referred to by Mr. Reen in the course of his submissions and the papers herein. First, it appears that sometime in 1980 an arrangement was made by Hannah Reen, the mother of Mr. Reen, who reached a form of agreement in the office of Joseph Morrissey & Company of which Mr. Donal Brendan O'Connell was the principal, in the course of which agreement Catherine Reen agreed to discharge all claims against the estate and in this context I presume the estate referred to was the estate of the father, Jeremiah Reen, and a letter of undertaking was given to the Bank of Ireland to facilitate the borrowings necessary to implement the agreement. It was thereafter that Catherine Reen formed a personal relationship with Mr. O'Connell. Subsequently in 1983 an arrangement was made whereby Hannah Reen, Catherine Reen and Mr. Reen entered into a deed of transfer for the purpose of transferring to Patrick Reen the premises known as Reen's Public House together with the lands attached thereto at Bearings being the lands comprised in Folio 7164 of the County of Cork. Accordingly by virtue of that deed of transfer, Mr. Reen became the owner of Reen's Public House.
In the course of his affidavit grounding this application Mr. Reen has described the circumstances that pertained from 1980 or so onwards in relation to the treatment of his mother by his sister, his sister's behaviour and her relationship with Mr. O'Connell. Serious allegations are made by Mr. Reen in relation to the actions and behaviour of Mr. O'Connell.
These proceedings
It is now necessary to look at the nature of the relief sought by Mr. Reen in his statement to ground the application for judicial review filed on the 5th August, 2008. The relief sought at paragraph (d) is as follows:
(1) "An order of certiorari to quash the Order made by his Honour Judge Moran at Cork Circuit Court, Record No. E401/1989 on 21st November 1989:
(1) that the word 'FREEHOLDERS' on line 2 of paragraph 1 of the Endorsement of Claim in Plaintiff's Civil Bill be amended to read 'LEASEHOLDERS' and,
THE COURT DOTH DELCARE:
that the Plaintiff is the full owner of the lands comprised in Folio 260L of the Register County of Cork AND
THE COURT DOTH FURTHER ORDER:
(2) That the Defendant be and is thenceforth firmly enjoined and restrained from claiming ownership of the said lands or any part thereof or any share therein.
(3) That the Defendant be and is thenceforth firmly enjoined and restrained from interfering with the Plaintiff's affairs and particularly the contract for the letting of the said lands.
(4) That the Plaintiff do recover from the Defendant the costs of and incidental to this Application and Order when taxed and ascertained.
(5) Liberty to apply.
at the stage of granting leave herein should such leave be granted on this application
for Judicial Review and,
(2) An order of certiorari to quash the Order of the Circuit Court Record No. 601/93 dated 7th July 1993:-
THE COURT DOTH ORDER
(1) That the Plaintiff be and is hereby at liberty to amend her Civil Bill to read 'Equity'.
AND THE COURT DOTH DECLARE:
(1) That the Transfer herein the subject matter of these proceedings dated the 12th day of May 1983 as purported entered into between the Plaintiff herein and her mother the late Hannah Reen for the transfer by them to the Defendant of all that and those the premises known as Reens Public House together with all the said lands attached thereto at Bearings, in the County of Cork comprised in Folio 7164 of the County of Cork is void and of no force or effect.
AND THE COURT DOTH FURTHER ORDER
(1) That the said Transfer herein dated the 12th day of May 1983 be and is hereby set aside.
(2) That the Plaintiff do recover from the Defendant the costs of and incidental to this Application and Order when taxed and ascertained on the undertaking of the Plaintiff not to execute in respect of said costs save in the event of an Appeal.
At the stage of granting leave herein should such leave be granted on this application
for Judicial Review; and,
(3) An Order of certiorari to quash the Order of the High Court on Circuit Record No. 601/1993 affirming the Circuit Court order Record No. 601/93 dated 20th October 1994:
THE COURT DOTH ORDER:-
(1) That the said Appeal be and the same is hereby struck out.
(2) That the said Order of the Circuit Court be and the same is hereby affirmed, that is to say -
That the Registrar of Title do amend the Register to show the ownership of
Folio 7164 of the County of Cork as follows:
One third to Patrick Reen.
One third to Catherine Reen.
One third to the estate of the late Hannah Reen.
(a) AND THE COURT DOTH FURTHER ORDER:-
(1) That land Certificate EI607 be returned to the Solicitor for the Plaintiff.
(2) That the Plaintiff do recover from the Defendant the costs of the proceedings in the Circuit Court and on this Appeal when taxed and ascertained.
At the stage of granting leave herein should such leave be granted on this application
for Judicial Review; and,
(4) An Order compelling Mr. Michael O'Connell sole executor of the estate of the late Donal Brendan O'Connell to return the original Land Certificate for CK7164 incorporating Reens bar at the stage of granting leave herein should such leave be granted on this application for Judicial Review; and
(5) An Order for certiorari to quash the Order of the High Court Probate:- 'the District Probate Registry at Cork on the 28th July 1993 Letters of Administration of all the estate which devolves to and vests in the personal representative of Hannah Reen late of 179, Beech Park, Ballincollig, in the County of Cork. Widow deceased, who died on or about the 7th day of January 1985, at St. Mary's Orthopaedic Hospital, Cork in the said County INTESTATE, and had at the time of her death a fixed place of abode at 179, Beech Park, aforesaid within the District of Cork were granted by the Court to Catherine Reen of 179, Beech Park, Ballincollig, aforesaid, School Teacher, the lawful daughter she having been first sworn faithfully to administer the same.' Extracted by Joseph Morrissey & Co., Cork. Solicitor, sole practitioner and Principal Mr. Donal Brendan O'Connell: and
(6) An order compelling Michael O'Connell of Ard Na Leac, Ballinguilly, Ballincollig, County Cork sole executor of the estate of the late Donal Brendan O'Connell, to return all files, funds, assets and all property real and personal that had been under the control of the late Catherine Reen and all my ancestors that were former clients of the late Donal Brendan O'Connell former Solicitor; and
(7) An Order to set aside the sale of Folio CK7070 in the year 199 or an Order to grant the proceeds of the sale plus interest at a rate determined by this Honourable Court to revert to the estate of the sole survivor at the state of granting leave herein should such leave be granted on this application for Judicial Review: and
(8) An Order to set aside the sale of Folio CK260L in the year 1988 to the late Catherine Reen or an Order to grant the proceeds of the sale plus interest at a rate determined by this Honourable Court to revert to the sole survivor and all rents collected to date to revert to the sole survivor and the property contained in Folio CK 206L to revert to the sole survivor at the stage of granting leave herein should such leave be granted on this application for Judicial Review and,
(9) An order to return Folio CK 50008F to the sole survivor applicant (proceeds of the lands disposed plus interest at a rate determined by this Honourable Court and remaining lands in Folio CK50008F to be returned to the sole survivor) at the stage of granting leave herein should such leave be granted on this application for Judicial Review; and
(10) An order to set aside the sale of Folio Ck9845F in the year 1994 or an Order to grant the proceeds of the sale plus interest at a rate determined by this Honourable Court to revert to the estate of the sole survivor at the stage of granting leave herein should such leave be granted on this application for Judicial Review: and,
(11) An Order to set aside and Rule null and void the Will of the late Catherine Reen drafted by the former Solicitor Mr. Colm Murphy of Market Street, Kenmare, County Kerry on 11th February 1997 at the stage of granting leave herein should such leave be granted on this application for Judicial Review: and,
(12) An Order to set aside and Rule null and void the Will of the late Donal Brendan O'Connell at the stage of granting leave herein should such leave be granted on this application for Judicial Review; and,
(13) An Order declaring the sole executor Mr. Michael O'Connell unfit to act in the capacity of sole executor of the estate of the late Donal Brendan O'Connell and alternatively grant this Applicant absolute rights to the estate of the late Donal Brendan O'Connell; and,
(14) A Well Order for the disposal of the estate of the late Donal Brendan O'Connell Ard Na Leac, Ballinguilly, Ballincollig, County Cork, known assets to date:
(a) Folio CK22892; and
(b) Folio CK3746F; and
(c) Folio CK25288; and
(d) Folio 2321F in the County Kerry; and,
(e) Premises situate at the junction of South Mall and Father Mathew Street in Cork City known as 17A South Mall, Cork City; and
(f) Company No. 29979 Ballincollig Holdings Limited, Registered Office 17A south Mall, Cork City; and,
(g) All other assets comprising of the estate of the late Donal Brendan O'Connell yet to be identified in the Kinsale are of County Cork
and the proceeds from same granted to the applicant Mr. Patrick Reen by way of restitutional damages at the stage of granting leave herein should such leave be granted on this application for Judicial Review; and,
(15) An Order for costs when taxed and ascertained; and,
(16) Liberty to re-enter; and,
(17) An Order for damages made out against the estate of the late Donal Brendan O'Connell; and,
(18) An Order for punitive, aggravated and exemplary damages made out against The Law Society of Ireland; and,
(19) An Order compelling Mr. Kevin J. White Solicitor formally of Joseph Morrissey & Company 17A South Mall, Cork City now practising under the style of Eoin C. Daly & Co. of 38 South Mall, Cork City within 10 days from the date of the granting of this application, to complete the lodgement of the original transfer Deed dated 12th May 1983 (now retained in the Circuit Court office situated in the City of Cork in Circuit Court on High Record No. 60L/1993 of the deceased registered owner of the late Jermiah Reen with the Land Registry offices Cork Road, Waterford City, County Waterford under the supervision of The Law Society of Ireland and the Land Registry and in the event of non-compliance of this Order an Attachment and Committal Order against Mr. Kevin J. White until matters aforesaid are complete; and,
(20) An Order for punitive, aggravated, restitutional and exemplary damages made against Mr. Kevin J. White Solicitor; and,
(21) A Court ruling declaring the actions and transactions of the late Catherine Reen abnormal when acting in the capacity of donee; and,
(22) A Court ruling declaring the actions of the late Donal Brendan O'Connell abnormal when acting in the capacity of Solicitor for the transferees; and,
(23) A Court ruling declaring the actions of the late Hannah Reen abnormal when acting in the capacity of donor; and,
(24) A Court ruling declaring the actions of the late Nora Herlihy abnormal when acting in the capacity of donor; and,
(25) A Order prohibiting any person or persons engaging in any action or transaction concerning the estate and particularly Folio CK 7164 including the Liquor Licence last held in the name of the late Catherine Marie Reen, until he conclusion of this Judicial Review with the exception of this Applicant, next of kin, lawful brother and sole survivor; and,
(26) Any further Orders as may be urged by the Applicant during the hearing of these proceedings; and,
(27) Further or Orders as this Honourable Court shall deem fit and just in all the circumstances.
(28) Further or Orders as this Honourable Court shall deem fit and just in all the circumstances."
It would also be useful to set out the grounds upon which the relief referred to above is sought namely:
"(a) This Applicant made an application to the Masters Court in 1996 to set aside the Interlocutory Injunction granted against this Applicant in Court Order Record No. E401/1989 that prevented this Applicant from executing his legal obligation to admit my late aunt Nora Herlihy's original will to Court for Probate. On seven occasions I attended the Four Courts Masters List and on each of those occasions the case could not be heard because either the late Donal Brendan O'Connell or my sister the late Catherine Reen could not appear in Court claiming ill health reasons why.
(b) I discovered on 28th July 2008 a land registry attachment document for a permanent lodgement of Transfer Deeds that should have been lodged in the Land Registry in the year 1983 by Kevin J. White Solicitor formally of the office of Joseph Morrissey & Company of 17A South Mall, Cork City now practicing under the style of Eoin C. Daly of 38 South Mall, Cork City and note that all parties involved in the aforementioned transaction were of unsound mind.
(a) I require financial funding to finance my application to renew my Excise Licence application to the Circuit Court prior to September 2008 and if I fail to make said application prior to this coming September I will not be able to make any further application in the future or the Excise Licence asset extinguish.
(b) I require financial funding to reinstate the living quarters in my home that had been converted by my late sister to a lounge bar prior to her application for a new Excise Licence to the Circuit Court in 1993, for the purpose of enabling me to reside in my home.
(c) I require financial funding to finance the work and the material necessary for the purpose of reinstating the water supply necessary for the operation of the toilets and washing and sanitary facilities for the purpose of complying with the Health and Safety regulations that must be complete for the purpose of the Excise Licence application.
(d) I require financial funding to finance to service the central heating requirements for the purpose of complying with the Health and Safety regulations that must be complete for the purpose of the Excise Licence application.
(e) I require financial funding to finance the purchase of transport and associated transportation costs for the purpose of normal trading.
(g) I am the sole survivor and I am lawfully entitled to inherit my forbearer's estates both real and personal."
It would be appropriate to make a number of observations at the outset. It will be immediately apparent that insofar as relief by way of certiorari has been sought to quash decisions of the Circuit Court and the High Court on Circuit and insofar as an order has been sought to quash an order of the High Court Probate Registry seeking in effect to quash the letters of administration extracted by Catherine Reen to the estate of her mother, that the application for judicial review in respect of those matters is many, many years out of date. The order made in the Circuit Court proceedings described as E401/1989 was made on the 21st November, 1989. Mr. Reen, as is clear, was the Defendant in those proceedings. There was no appeal from the making of that order. The second order in respect of which an order of certiorari has been sought is the Circuit Court order in the proceedings bearing Record No. 601/1993 and that order was made on the 7th July, 1993. The third order of certiorari sought is in relation to the order of the High Court on circuit in the same proceedings and that order was made on the 20th October, 1994. Finally the order in relation to the letters of administration is sought in respect of the order of the High Court Probate at Cork made on the 28th July, 1993. Thus, as will be obvious, the application for judicial review in respect of all of the reliefs sought by Mr. Reen by way of certiorari is hopelessly out of time. Similarly, the position in respect of other reliefs sought by Mr. Reen is that the application for judicial review is also out of time. No application was made by Mr. Reen in the course of his statement to ground the application for judicial review for an extension of time in which to apply for the reliefs sought. Further there is nothing in his affidavit seeking to extend the time for making the application.
For the purpose of dealing with this appeal, it is not necessary for the Court to embark on a detailed consideration of the reliefs sought by Mr. Reen in the course of his application. Suffice it to say that apart from the issue in relation to time/delay it is important to bear in mind that the purpose of judicial review proceedings is not to embark on a further appeal or re-hearing of proceedings that have already been concluded. As was pointed out by Lynch J. in Gill v. Connellan [1988] ILRM 448 at page 454:
"An application for certiorari by way of judicial review is not to be regarded as a readily available alternative to an appeal by way of rehearing to the Circuit Court. The ordinary remedy for a person who is dissatisfied with a District Court decision is to appeal to the Circuit Court where a complete rehearing will take place. Alternatively if the facts of a case are not in issue but a point of law arises then an appeal by way of case stated to the High Court is appropriate."
Subsequently O'Hanlon J. in the case of State (Daly) v. Judge Ruane [1988] ILRM 117 observed:
"Relief by way of certiorari is only appropriate in a limited number of cases. Generally speaking it involves the applicant in showing that the inferior court or tribunal acted without jurisdiction, or in excess of jurisdiction, or in disregard of fair procedures, so that the applicant's rights to natural or constitutional justice were violated. Entitlement to the remedy may also arise where there is an error on the face of the record, or where an order has been obtained by collusion or fraud.
What must be stressed is that the certiorari procedure cannot be utilised to convert the High Court into a court of appeal from all decisions of the District Court, with the Court being required to embark upon a re-examination of the evidence given before the lower court and a re-assessment of all submissions made during the course of the hearings in the lower court."
Those observations seem to me to be particularly apposite in the context of this case insofar as orders are sought seeking to quash, first, a decision of the Circuit Court in relation in which there was no appeal and, second, a decision of the Circuit Court and the High Court on appeal in circumstances where the matter at issue was the subject of a full hearing in the Circuit Court and subsequently in the High Court on appeal. Absent from the statement of grounds and the affidavit of Mr. Reen is anything which sets out a basis for suggesting why the relevant orders should be quashed. The same applies to the letters of administration extracted by Catherine Reen to the estate of her late mother. It goes without saying that final orders cannot be quashed just because it is asserted that they were wrong. The most that can be said having regard to the papers before the Court is that Mr. Reen appears to contend that the proceedings should be set aside because his late mother suffered from dementia before she died in 1985, (which can have little bearing on proceedings that took place in 1993), the fact that his sister suffered from alcoholism for a number of years prior to her death in 2004 and that the late Mr. O'Connell who acted for Ms. Reen in the various matters referred to also suffered from dementia for a number of years prior to his death and was made a ward of court in 2004.
Mr. Reen in the course of his affidavit and in the submissions has referred to a number of matters in relation to the late Mr. O'Connell and alleges that he suffered from dementia for many years and that this was a "major contributory factor to his abnormal and erroneous actions and behaviour". Mr. Reen is critical of the actions of Mr. O'Connell who acted for Ms. Reen in the course of the proceedings at issue and appears to be suggesting that in so acting, his capacity to do so was affected by his dementia. There is no medical evidence before the Court in these proceedings to support Mr. Reen’s contentions. He relies principally on the Death Certificate to support his assertions. (Mr. Reen has also referred to details of other cases involving Mr. O’Connell to support his views but that is not the way to establish capacity or the lack of it in legal proceedings.) Whatever the concerns of Mr. Reen as to Mr. O’Connell’s capacity, it is not necessary to express any concluded view on these issues having regard to the fact that this appeal concerns the judgment and order of Herbert J. made herein on the 10th September, 2008 and those issues are not dealt with by Herbert J. I understand that there may be other proceedings extant in relation to the estate of Mr. Reen's late sister concerning the validity of her last will and testament and for that reason it would not be of assistance to make any further comment on the question of Mr. O’Connell’s capacity or indeed of Ms. Reen or that of her late mother.
Other matters relating to the application for judicial review
It will have been observed that in the statement of grounds seeking leave to apply for judicial review in this case a number of other parties were joined and relief was sought against them. Some were stated to be Respondents but many were joined as Notice Parties. Thus for example, an order was sought for "punitive, aggravated and exemplary damages made out against the Law Society of Ireland". The Law Society brought a motion before the High Court seeking to be removed as a party from the proceedings and in circumstances where no details were given of the basis for seeking such relief either in the statement of grounds or in the affidavit grounding the relief, the Law Society was removed as a notice party in the within proceedings by the judgment and order of the High Court (Herbert J.) of the 10th September, 2008. An appeal was brought by Mr. Reen in respect of that order but Mr. Reen confirmed to this Court at the hearing that the appeal in that regard was no longer being proceeded with. Other reliefs were sought against a number of other parties and Mr. Reen also confirmed that no relief was being sought against the State parties named in the proceedings. Finally and for completeness, I should refer to the position in respect of two solicitors, one of whom was joined as a respondent and one of whom was joined as a notice party. Kevin J. White, solicitor, was joined as a respondent and the relief sought against him related to "completing the lodgement of the original transfer deed dated the 12th May, 1983". That was the deed of transfer set aside in the Circuit Court proceedings in 1993 and affirmed by the order of the High Court in 1994. From the papers before the Court it appears that Mr. White did complete the transfer of Mr. Reen as the sole owner of the lands in Folio 7164 and the transaction was completed in April 1986. As is clear from the background set out above, that transfer was ultimately set aside. It is very difficult to understand in those circumstances why any relief was sought against Mr. White and furthermore it is impossible to understand why an order for attachment and committal against Mr. White was sought in the application for judicial review. Furthermore it is impossible to understand why Mr. Reen sought punitive, aggravated, restitutional and exemplary damages against Mr. White. However, despite the fact that Mr. White was joined as a respondent in the proceedings and was notified of the appeal from the order of the High Court made herein on the 10th September, 2008, and even though Mr. White furnished submissions on the appeal, it was confirmed by Mr. Reen at the hearing of this appeal that no relief was now being sought against Mr. White by way of these proceedings.
The final person to whom I wish to refer in this context is a solicitor who is named as a notice party, Margaret Lucey. Apart from being named as a notice party, there is no reference to Margaret Lucey at all in the course of the statement of grounds. It appears that the firm of Timothy Lucey & Company were the former solicitors of the Reen family prior to the involvement of Mr. O'Connell. The firm of Timothy Lucey & Company are not referred to at all in the statement of grounds but reference is made to the firm in the affidavit of Mr. Reen sworn to ground the affidavit for judicial review. While reference has been made to the firm in the course of the affidavit and particularly to the circumstances in which a number of files were transferred from the office of Timothy Lucey to the office of Joseph Morrissey & Company, Solicitors, where Mr. Donal Brendan O'Connell was the sole practitioner and principal, it does not appear that any relief of any kind was sought against Timothy Lucey & Company or Margaret Lucey of that firm and it is difficult to understand any basis why Margaret Lucey was joined as a notice party to these proceedings.
Whilst making those observations as to the scope of the application for judicial review in this case, I should mention that at the outset of the hearing before the Supreme Court on foot of the appeals by Mr. Reen, Mr. Reen confirmed that he was at this stage effectively only seeking relief against Colm Murphy and the O'Connell respondents. Finally, it should be noted that there was no appearance on behalf of Mr. Murphy. Ms. McKechnie appeared on behalf of the O'Connell respondents and Mr. McDowell, B.L. appeared on behalf of Margaret Lucey. Mr. Reen appeared for himself.
The judgment of the High Court
When the matter came before the High Court in September 2008, there was an application before the Court on behalf of the Law Society seeking an order to set aside the order granting leave to bring judicial review proceedings against the Law Society of Ireland on the grounds that the proceedings were scandalous, vexatious and disclosed no reasonable cause of action known to law. Counsel for Margaret Lucey also appeared, as did counsel for the DPP who was the sixth named notice party. It appears that the DPP was removed by consent from the proceedings at that stage. Mr. Reen in his submissions explained that his concerns related to the licensing of the public house which at that stage had apparently been closed for some five years. Mr. Reen indicated to the High Court that he was the owner of the entire estate but this was disputed by counsel who stated that he had a share of the estate and not the full estate. Apart from counsel for the Law Society, Counsel for Colm Murphy appeared as did counsel for the estate of the late Donal Brendan O'Connell and the other O'Connell respondents and for Kevin J. White and Margaret Lucey. The point was made on behalf of various of the respondents and notice parties that the proceedings were out of time and that there was prejudice by reason of the delay bearing in mind that several people involved in the issues raised had died in the interim.
Herbert J. concluded that the application was "completely out of time" and that there was no evidence to excuse the delay. Herbert J. commented: "You have a half share in the pub" and that "You are tenant in common with the beneficiary of your late sister's estate". Herbert J. dismissed the application for judicial review and stated that it was "an utterly unmeritorious claim". He released the Law Society from the proceedings. Accordingly, the Order of the High Court was that the Law Society be removed as Notice Party to the proceedings and the Law Society was awarded its costs of the application and it was further ordered that the Proceedings be dismissed.
Discussion and Conclusion
It is undoubtedly the case that Mr. Reen has a very strong sense of grievance in relation to the circumstances which have led to what he sees as his inheritance having gone out of his control. He is very upset by the fact that a family business first established by his great-grandfather in 1860 is no longer Reen family property. It would appear from the information provided to the Court by Mr. Reen that over a number of years, Mr. Reen was actively involved in running the public house but that changed as a result of differences that had arisen between Mr. Reen, and his late sister. As was previously described, Mr. Reen, his mother and his sister came to an arrangement whereby there was a deed of transfer of the folio comprising the public house in 1983 to Mr. Reen but unfortunately, differences arose between Mr. Reen and his late sister. Ultimately they became involved in litigation in 1989 in respect of property comprised in Folio 260L of the Register of the County of Cork in which a declaration was made that Catherine Reen was the full owner of those lands and Mr. Reen was enjoined from claiming ownership of those lands or any part thereof and was also enjoined from interfering with the affairs of his late sister and particularly in relation to the contract for the letting of those lands.
Subsequently, as explained previously, there was further litigation which resulted in the order of the Circuit Court in 1993 in which the deed of transfer in relation to Folio 7164 in respect of the public house was set aside, a decision which was upheld on appeal to the High Court. It is clear from the affidavit sworn by Mr. Reen and the submissions furnished by him that a major aspect of his sense of grievance relates to his opinion that during the years at issue his late sister was suffering from alcohol dependency and was thus, in his view, not capable of dealing with her legal obligations particularly her obligations as the administrator of the estate of his late father and mother. Further, as I mentioned previously, Mr. Reen is very critical of the role of the late Mr. O'Connell both in his capacity as a solicitor and as the partner of the late Catherine Reen. Indeed much of the material put before the Court by Mr. Reen relates to what is described by Mr. Reen at different stages as the abnormal behaviour of Mr. O'Connell and his “crazy” actions and erroneous actions. Mr. Reen stated that for many years Mr. O'Connell had suffered from dementia and that it was a major contributory factor to his abnormal and erroneous actions and behaviour.
While I have no doubt that Mr. Reen has a deep-seated grievance as to the matters outlined above, that of itself does not mean that he is entitled to issue proceedings seeking leave to apply for judicial review so many years after the events complained of, to take, for example, the relief sought by way of certiorari. Mr. Reen has sought to quash an order of the Circuit Court in 1989, a further order of the Circuit Court made on the 7th July, 1993 and an order of the High Court on circuit on appeal from the Circuit Court order made on the 20th October, 1994, together with an order quashing the decision on the 28th July, 1993 made at the District Court Probate Registry by which letters of administration of the estate of Hannah Reen were granted to Catherine Reen. No explanation was given by Mr. Reen for not bringing such applications within the period of time permitted for seeking such relief by way of judicial review. Not only was no explanation given, but no application was made when the application for judicial review was made seeking leave to extend the time. There is simply no explanation good, bad or indifferent explaining the delay. Order 84 of the Rules of the Superior Courts provides that:
"An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the Court considers that there is good reason for extending the period within which the application shall be made."
Not only has no extension of time been sought in this particular case but no good reason has been given as to why the period within which an application to extend time could be made. Thus, the position that the Court is left in is that insofar as a time limit of six months would have applied in relation to the applications for certiorari, no extension of time has been sought and no reason has been put forward as to why an extension should be granted, be it a good reason or otherwise.
Even if there had been an application to extend time it has to be borne in mind that it is hard to see how there could be any meaningful consideration of the matters raised by Mr. Reen in circumstances where the parties most involved in these matters are now long since deceased. His mother is dead as is his sister and so is Mr. O'Connell. Given that so many of the issues raised by Mr. Reen relate to the conduct particularly of his sister and Mr. O'Connell, it is difficult to see how any proceedings could be conducted fairly in circumstances where they are deceased.
Overall, I can see no basis upon which the decision of the High Court in this case could be demonstrated to have been in error. As I explained previously, the scope of judicial review proceedings is necessarily limited. Such proceedings are not suitable as a vehicle providing for a hearing on the merits. They are intended to provide a remedy in circumstances where an inferior court or tribunal has acted without jurisdiction, or in excess of jurisdiction or in breach of an applicant’s rights to natural or constitutional justice. Such proceedings are not intended to provide an alternative form of appeal from the District or the Circuit Court. In this case, Mr. Reen chose not to appeal a decision of the Circuit Court and in relation to the other set of proceedings, he did appeal and had a full rehearing on the merits, thus finally determining the issues in that case between the parties. In the absence of some fundamental flaw in the conduct of the various proceedings, no remedy by way of judicial review lies. It is not enough to assert that the decisions were wrong.
I have set out at some length details in relation to the sense of grievance felt by Mr. Reen in relation to the overall circumstances. I understand that he is deeply upset by the circumstances in which he no longer has full ownership of the premises known as Reen's Public Bar. I understand his concerns in relation to the circumstances of his late sister and the fact that she left her estate to her partner, the late Mr. O'Connell. I understand that Mr. Reen had issues about the role of Mr. O'Connell in relation to his actions as solicitor for Catherine Reen when she was acting as the administrator of the estate of his late mother. However, I reiterate the point that judicial review proceedings are not the appropriate vehicle for dealing with those concerns. It will be apparent from the history outlined above that a number of parties, originally joined in these proceedings but released or let go at different stages of the proceedings, should not have been parties to the proceedings at all. Mr. Reen has adopted a scattergun approach to his complaints. I have to say that looking at the statement of grounds applying for judicial review in a broad sense, it appears to me that many of the reliefs sought by Mr. Reen are simply misconceived and even if the order dismissing his application for judicial review on the ground of delay had not been made, the reliefs sought in these proceedings are so misconceived that it is inevitable that the application for judicial review would have been unsuccessful in any event. By way of example, I can see no basis at all in the papers furnished by Mr. Reen to explain why the orders of the Circuit Court and the High Court on appeal from the Circuit Court should have been set aside. If Mr. Reen was of the view that a different outcome to those proceedings would have been arrived at had the cases been conducted differently and had he shown that his sister was an alcoholic and that the conduct of the litigation on her behalf by Mr. O’Connell was “abnormal”, the time to have raised these issues was when those actions were before the relevant Courts. Judicial review proceedings do not and are not meant to provide a vehicle to re-open litigation long since concluded. Equally, had Mr. Reen been dissatisfied by the steps taken in relation to the administration of his late mother’s estate by his sister, the law provides a remedy for that. He could have sought to have the grant of letters of administration revoked. He did not do so.
In all the circumstances of this case, I am satisfied that the order of the High Court dismissing these proceedings was correctly made and therefore the appeal of Mr. Reen should, in my view, be dismissed.
