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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Donegal County Council v Quinn & anor (Approved) [2025] IESC 19 (13 May 2025)
URL: http://www.bailii.org/ie/cases/IESC/2025/2025IESC19CharletonJ.html
Cite as: [2025] IESC 19

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An Chúirt Uachtarach

The Supreme Court

 

Supreme Court appeal number: S:AP:IE:2024:000145

[2025] IESC 19

High Court record number: 2022/586 SS

[2024] IEHC 160

 

O'Donnell CJ

Charleton J

Murray J

Collins J

Donnelly J

 

 

 

Between

 

Donegal County Council

Prosecutor/Appellant

 

 - and -

 

 Conor Quinn

Accused/Respondent

 

- and –

 

The Attorney General

Notice Party

 

 

 

Judgment of Mr Justice Peter Charleton delivered on 13 May 2025

 

1. Can a firm of solicitors apply to a clerk of the District Court to issue a summons on behalf of a body authorised to prosecute an offence? It is ingrained in the practice of solicitors' firms to issue proceedings in civil matters and, where acting on behalf of a party entitled to prosecute, to issue summonses to initiate criminal litigation. Section 1 of the Courts (No 3) Act, 1986, as substituted by section 49 of the Civil Liability and Courts Act 2004, provides for the issuing of a summons in criminal proceedings "by or on behalf of the Attorney General, the Director of Public Prosecutions, a member of the Garda Síochána or any person authorised by or under an enactment to bring and prosecute proceedings for the offence concerned." Local authorities are so authorised, among others, in respect of enforcement notices under s 154 of the Planning and Development Act 2000, where a breach of the planning code has been allegedly left unrectified.

2. It is in respect of that kind of offence that Conor Quinn was summonsed on 8 June 2018 to appear, on a date specified, before Donegal District Court to be accused of such charges. At the hearing before Judge Sandra Murphy, the point was raised that the summons was issued by "V.P. McMullin", a firm of solicitors and that such an unincorporated partnership was not a natural person and must therefore be barred from applying to issue summonses. Judge Murphy, on 2 March 2022, stated a case for the opinion of the High Court on this issue:

 

Does section 1 of the Courts (No.3) Act, 1986 as amended by s 49 of the Civil Liability and Courts Act 2004 authorise the issue of a summons on the application of "V.P. McMullin" being a firm of solicitors and an unincorporated body of persons?

 

3. The matter came on for hearing before Bradley J; [2024] IEHC 160. The answer of the High Court was in the negative. In consequence, it may be anticipated that the judge in the District Court will be asked to rule the summons bad, thus striking out the prosecution against Conor Quinn. Several other cases have been delayed to await the resolution of this issue.

 

4. By a determination dated 6 December 2024, this Court enabled a direct appeal from the judgment and order of the High Court; [2024] IESCDET 149. The case was heard on 4 March 2025 and this is the judgment thereon.

 

Legislation

 

5. Before turning to the judgment of the High Court and the arguments advanced on this appeal, the relevant statutory provisions should be set out. Since a contention based on context was advanced on behalf of Conor Quinn in the High Court, and repeated on this appeal, the entire section requires to be reproduced. Section 1 of the Courts (No 3) Act, 1986, as substituted by section 49 of the Civil Liability and Courts Act 2004, provides:

 

(1) Proceedings in the District Court in respect of an offence may be commenced by the issuing, as a matter of administrative procedure, of a document (in this section referred to as a 'summons') to the prosecutor by the appropriate office.

 

(2) The issue of a summons may, in addition to being effected by any method by which the issue of a summons could be effected immediately before the enactment of section 49 of the Act of 2004, be effected by transmitting it by electronic means to the person who applied for it or a person acting on his or her behalf.

 

(3) An application for the issue of a summons may be made to the appropriate office by or on behalf of the Attorney General, the Director of Public Prosecutions, a member of the Garda Síochána or any person authorised by or under an enactment to bring and prosecute proceedings for the offence concerned.

 

(4) The making of an application referred to in subsection (3) of this section may, in addition to being effected by any method by which the making of an application for a summons could be effected immediately before the enactment of section 49 of the Act of 2004, be effected by transmitting it to the appropriate office by electronic means.

 

(5) Where an application for the issue of a summons is made to—

 

(a) an office referred to in paragraph (a) of the definition of 'appropriate office' in this section, the summons may, instead of its being issued by that office, be issued by an office referred to in paragraph (b) of that definition, or

 

(b) an office referred to in paragraph (b) of that definition, the summons may, instead of its being issued by that office, be issued by an office referred to in paragraph (a) of that definition.

 

(6) A summons shall—

 

(a) specify the name of the person who applied for the issue of the summons,

 

(b) specify the application date as respects the summons,

 

(c) state shortly and in ordinary language particulars of the alleged offence, the name of the person alleged to have committed the offence and the address (if known) at which he or she ordinarily resides,

 

(d) notify that person that he or she will be accused of that offence at a sitting of the District Court specified by reference to its date and location and, insofar as is practicable, its time, and

 

(e) specify the name of an appropriate District Court clerk.

 

(7) For the avoidance of doubt, particulars of the penalty to which a person guilty of the offence concerned would be liable are not required to be stated in a summons.

 

(8) Where the issue of a summons is effected in accordance with subsection (2) of this section, references to an original summons in any enactment relating to the service of summonses (whether the references employ the word 'summons' or the expression 'original document') shall be construed as references to a true copy of the summons.

 

(9) In any proceedings—

 

(a) a document purporting to be a summons shall be deemed to be a summons duly applied for and issued, and

 

(b) the date specified in the summons as being the application date shall be deemed to be such date,

 

unless the contrary is shown.

 

(10) In any proceedings in which the issue of a summons was effected in accordance with subsection (2) of this section, a true copy of the summons shall, unless the contrary is shown, be evidence of the summons concerned.

 

(11) A summons duly issued under this Act shall be deemed for all purposes to be a summons duly issued pursuant to the law in force immediately before the passing of this Act.

 

(12) Any provision made by or under any enactment passed before the passing of this Act relating to the time for making a complaint in relation to an offence shall apply, with any necessary modifications, in relation to an application under subsection (3) of this section.

 

(13) The procedures provided for in this section in relation to applications for, and the issue of, summonses are without prejudice to any other procedures in force immediately before the passing of this Act whereby proceedings in respect of an offence can be commenced and, accordingly, any of those other procedures may be adopted, where appropriate, as if this Act had not been passed.

 

(14) In this section—

 

'Act of 2004' means the Civil Liability and Courts Act 2004;

 

'application date' means, in relation to a summons, the date on which the application for the issue of the summons was received by the appropriate office;

 

'appropriate District Court clerk' means, in relation to a summons, a District Court clerk assigned to any district court area in the district court district in which a judge of the District Court has jurisdiction in relation to the offence to which the summons relates;

 

'appropriate office' means, in relation to a summons—

 

(a) the office of any District Court clerk assigned to any district court area in the district court district in which a judge of the District Court has jurisdiction in relation to the offence to which the summons relates, or

 

(b) any office of the Courts Service designated by the Courts Service for the purpose of receiving applications referred to in subsection (3) of this section;

 

'prosecutor' includes a person acting on behalf of the prosecutor;

 

'summons' has the meaning assigned to it by subsection (1);

 

'true copy' means, in relation to a summons the issue of which was effected in accordance with subsection (2), a document that purports to be a reproduction in writing of the summons certified by the prosecutor as being a true copy thereof.

 

6. As originally enacted, s 1(3) read:

 

A summons shall—

 

(a) state shortly in ordinary language particulars of the offence alleged and the name and, if known, the address of the person alleged to have committed the offence, and

 

(b) notify him that he will be accused of that offence at a sitting of the District Court which sitting shall be specified by reference to its date and location and, insofar as is practicable, its time.

 

7. On behalf of Conor Quinn, the argument was advanced that prior to the amendment in 2004, a firm of solicitors could apply for a summons on behalf of a corporation or other entity entitled to prosecute, but that the specifications in subsection (6), as now enacted, requiring the specification of the "name of the person who applied for the summons", means only natural persons and not unincorporated partnerships could undertake this task. Essentially, since applying for a summons is contended to be "a physical action", the contention on behalf of Conor Quinn posits that a natural person alone is capable of taking this step. On this argument, both incorporated and unincorporated associations are out-ruled. This wide-ranging and inventive suggestion makes part of the general rules for construction of statutes, enacted in the Interpretation Act 2005, germane. Section 18 provides for listed provisions to "apply to the construction of an enactment", including as to the definition of person in 18(c):

 

"Person" shall be read as importing a body corporate (whether corporation aggregate or a corporation sole) and an unincorporated body of persons, as well as an individual, and the subsequent use of any pronoun in place of a further use of "person" shall be read accordingly.

 

8. As to why that provision might not be applicable, since it is of general application to all statutes and regulations, it is necessary to turn to the reasoning of the High Court and the contentions advanced on this appeal. This engaged s 4 of the 2005 Act:

 

(1) A provision of this Act applies to an enactment except in so far as the contrary intention appears in this Act, in the enactment itself or, where relevant, in the Act under which the enactment is made.

(2) The provisions of this Act which relate to other Acts also apply to this Act unless the contrary intention appears in this Act.

 

High Court

 

9. Bradley J in his assessment of this issue correctly referred to Friends of the Irish Environment CLG v The Legal Aid Board & Ors [2023] IECA 19 as authority for how general questions of statutory construction should be approached. There the issue was the applicability of general words which normally would include corporations and whether that meaning of "person" was excluded by context. In that case, a company limited by guarantee had applied for, and been refused, legal aid in respect of a planning or environmental challenge on the basis that the scheme of legal aid as first enacted by administrative fiat of Government and subsequently given statutory form in the Legal Aid Act 1995, applied only to natural persons. In upholding that ruling, Murray J referenced and reiterated the principles for construction of statutes. Ultimately, by reason of context, including references within the enactment making it plain that the scheme was enacted to enable individual people to seek justice, Murray J held that there was a clear statutory intention to exclude corporations. Bradley J referenced paragraph 40 of that judgment of Murray J:

 

The starting point in the construction of a statute is the language used in the provision under consideration, but the words used in the provision must still be construed having regard to the relationship of the section to the statute as a whole, the place of the statute in the legal context in which it was enacted, and the connection between those words, the whole Act, that context, and the discernible objective of the statute. Those provisions of the 2005 Act governed by s. 4(1) have an important role in the ascertainment of the imputed legislative intent to which the process of statutory interpretation is directed, but they do not subordinate the generally applicable principles, in particular the requirement that the court ascertain the meaning of each section by reference to its language, place, function and context.

 

10. See also DB v Minister for Health and Children [2003] 3 IR 12, Denham J at p 21 and Savage Supermarket Ltd & Becton v Bord Pleanála and Others [2011] IEHC 488, [2011] 11 JIC 2205. Bradley J considered that "V.P. McMullin" constituted the "person" within the meaning of s 18(c) of the 2005 Act applying for the summons. On his analysis, however, the issue for consideration was, having regard to s 4(1) of the Interpretation Act 2005, whether the presumption arising from that provision was displaced; that is "whether the contrary intention is shown by the provisions of the Courts (No. 3) Act 1986 (as amended) in the application of section 4(1) of the Interpretation Act 2005." In turn, his reasoning was that this depended on whether the "substance and tenor" of the provisions of the Courts (No 3) Act 1986, as substituted, expressed a contrary intention as to the meaning of the word "person" in the provisions of that Act.

 

11. In that regard, Bradley J noted that s 1(6) of the Courts (No 3) Act 1986 (as amended) replaced section 1(3) of the 1986 Act. As enacted, the subsection currently provides that "a summons shall specify the name of the person who applied for the issue of the summons" in that s 1(6)(b) requires that "a summons shall specify the application date as respects the summons" and that s 1(6)(e) of the 1986 Act states that "a summons shall specify the name of an appropriate District Court clerk". Consequently, Bradley J found that the reference to "specify" is a requirement to "identify clearly and precisely the name of the person" who applied for the issue of the summons together with the name of the appropriate District Court clerk; who, of course, can only be a natural person. He found that this established "a requirement for legal personality in the sense of a natural person rather than an unincorporated body of persons." What, hypothetically, would be sufficient was that "Sheila citizen of VP McMullin would have sufficed rather than solely the name of an unincorporated body such as "VP McMullin"."

 

12. The judgment, moreover, referred to the language of s 1(14) of the 1986 Act, which provides that a "prosecutor" includes "a person" acting on behalf of the prosecutor and that the certification of a "true copy" requires a copy of the summons to be certified by the "prosecutor". Consequently, he held that this definitively suggested the signature of a natural person and not that of an unincorporated body. Bradley J further referenced the language of subsection 1(6) of the 1986 Act which provides that the summons shall state "the name of the person" alleged to have committed the alleged offence as well as the address at which "he or she" ordinarily resides. Bradley J found that the pronouns in subsections 1(6)(c) and (d) require a natural person, especially when taken in consideration with the observation of the Murray J in Friends at paragraph 64:

 

The reference to pronouns in s. 18(c) does not detract from the fact that consistently throughout the provisions dealing with the criteria for obtaining legal aid (s. 28(2)(c)), financial eligibility and contributions (s. 29(7) and (8)) and even residence (s. 30(2)) the Act uses only the pronouns 'her or she' or 'him or her' both reflecting and supporting that conclusion.

13. In consequence, Bradley J found that the index subsections of the substituted section 1 of the Courts (No 3) Act 1986 require, in accordance with Lord Blackburn's formulation in Pharmaceutical Society v London and Provincial Supply Association (1880) 5 AC 857, pp. 869-870, that the word "person" shall have "the less extended sense", meaning a human being, when applied to the entire 1986 Act. Thus, the High Court held that s 1 of the 1986 Act does not authorise the issue of a summons on the application of VP McMullin, being a firm of solicitors and an unincorporated body of persons. The judge of the District Court was advised accordingly.

 

Submissions on the appeal

 

14. Donegal County Council, as the party expressly authorised by statute to prosecute, acknowledges that the High Court correctly identified the applicable legal test and correctly identified that the starting point was the initial assumption that VP McMullin is a "person" within the meaning of s 18(c) of the 2005 Act and that the question to be addressed was whether the assumption had been displaced. However, the Council submits that the High Court erred: by concluding that the word "person" had the same meaning throughout the 1986 Act, and did so contrary to the test set forth in Friends which requires the court to ascertain the meaning of a specific term in each section by reference to its language, place, function, and context; that the High Court failed to recognise that the various references to "person" throughout the 1986 Act were to different categories of person and that the only one relevant to the question posed in the consultive case stated was that referring to an applicant for the issue of a summons acting on behalf of a prosecutor (s 1(6)(a)); and that the High Court failed to have sufficient regard to the tenor and substance of the Act as a whole and to the context of the Act. Further, it is submitted: that the meaning of person provided for in s 18(c) has not been expressly disapplied by any provision of the 1986 Act; that neither section 1(3) nor 1(6)(a) are concerned with a state of affairs which necessarily displaces the meaning provided for in section 18(c). Firms of solicitors have a name which can be specified as the applicant who applied for the issue of the summons on behalf of the prosecutor; that to interpret the word "person" in section 1(6)(a) of the 1986 Act as including body corporates and unincorporated bodies of persons such as firms of solicitors, does not produce an absurdity; and that there is nothing absurd about a firm of solicitors applying for the issue of a summons on behalf of a prosecutor.

 

15. The Council asserts that the substance and tenor of the 1986 Act as a whole is not inconsistent with the word "person" as it appears in the relevant provisions of the Act as including an unincorporated body of persons (and, or a body corporate). The thrust of the 1986 Act was to create an administrative process for the issue of summonses, it is asserted. There is nothing in the Act, the Council argue, which indicates that it intended that such summonses could be applied for only by natural persons acting on behalf of prosecutors, who themselves may not be natural persons; as is the position in the present case. Such an outcome, it is claimed, would be illogical. Further, the Council asserts that as a matter of history, the role of solicitors' firms has included issuing proceedings on behalf of their clients as a matter of course. In addressing the language of s 1(3) of the 1986 Act, the Council emphasises that the provision states that an application for the issue of a summons may be made "by or on behalf" of a prosecutor. It points out that this sub-section does not itself contain the word "person" and contends that, in this context, the words "on behalf of" means no more than someone other than a prosecutor can apply for the issue of a summons on its behalf. Thus, the Council contends that there is no requirement that its agent, or the person applying on its behalf, be a natural person and that such a requirement would be surprising, given that prosecutors themselves are not natural persons and are expressly authorised by s 1(3) to make an application for issue of a summons.

 

16. On the language of s 1(6) of the 1986 Act, the Council maintains that this only requires that the name of the person who applied for the summons be specified in the summons. It submits that there is nothing in the language of that section referring to core human needs or requirements, as in Friends, and that there is nothing in the process of applying for the issue of a summons which requires a natural person to be the applicant, as opposed to a body corporate or a firm of solicitors. The Council contrasts the wording of this section with the language of "disposable income" and "undue hardship" that the Court of Appeal in Friends found indicated the implication of "core human needs" which the legal aid legislation was designed to meet. Further, the Council, asserts that the s 1(6)(e) requirement to specify the name of an appropriate District Court clerk, involving the naming of a natural person, arises simply by reason of the fact that the position of the District Court clerk can only be occupied by a natural person. It submits this does not mean that other sub-sections must be interpreted to the same effect. In this context, the Council maintains that the reference to 'specify' the name of the appropriate District Court clerk (s 1(6)(e)) does not mean that the person who applied for the issue of the summons (s 1(6)(a)) must also be a natural person. It submits that the High Court did not carry out any analysis of how the overall scheme of the legislation is other than consistent with firms of solicitors applying for the issue of summons on behalf of prosecutors, or why the requirement that the District Court clerk be a natural person must require the same interpretation for every other reference in the Act to "person". Finally, the Council submits that the High Court failed to have regard to the test set forth in Friends, specifically in not considering whether the intention of the Act as a whole could have been to require that applications for summonses, including electronic applications, could be made only by natural persons and not by unincorporated bodies of persons, such as a firm of solicitors, who are identifiable and subject to various statutory requirements as to their name and registration. It submits that the High Court's decision, in failing to apply the contrary intention test in respect of the reference to "person" in subsection 1(6)(a) of the 1986 Act, disregarded the fact that unless the prosecutor concerned has an in-house legal department that the only 'person' that it can engage to prosecute the case is a firm of solicitors. Here, there may be more than one person involved, such as support staff.

 

17. The wider implications of the case were addressed in submissions from the Attorney General who made three main points in support of a firm of solicitors being enabled to apply for a summons on behalf of a person authorised to prosecute. Firstly, the Attorney General submits that the High Court was correct in the understanding of the requirements of the 2005 Act as outlined in Friends but erred in its assessment of whether the presumptions established by s 4(1) and s 18(c) of the 2005 Act were displaced. The Attorney General maintains that there is nothing in the 1986 Act which could be considered to displace, disapply or repudiate s 18(c) of the 2005 Act and further contends that s 18(c) establishes a presumptive definition of "person" as incorporating bodies corporate and unincorporated bodies of persons as well as individuals within its ambit. The Attorney General notes that s 4(1) of the 2005 Act further provides that the provisions of the 2005 Act apply to an enactment "except in so far as the contrary intention appears in this Act, in the enactment itself or, where relevant, in the Act under which the enactment is made." The Attorney General contends that there is no reference to the character of the applicant for a summons, as was the case with legal aid in Friends.

 

18. The Attorney General also references the historical context. The Petty Sessions (Ireland) Act 1851 was the basis for the issuing of summonses by the District Court. The Attorney General submits that the text of the 1851 Act indicates that a complaint grounding an application for a summons or warrant could be issued by a natural, and also by a private person, or person(s) acting on their behalf including an agent which could include a legal person, such as a firm of solicitors. There, it is contended, two historical factors in particular suggest that the 1851 Act should be read as including legal and natural persons: first, any other interpretation would have excluded complaints being made under the Act by corporations sole, including the Crown and some ecclesiastical office holders; and second, that a reading of the 1851 Act as including only natural persons would also have excluded the possibility of other, recognised, legal entities from undertaking prosecutions. Moreover, the Attorney General asserts that the 1986 Act does not override the system established by the 1851 Act, rather it functions alongside it in order to provide for a system of seeking and issuing summonses for a subgroup of persons as provided for in s 1(3). Hence, the reference to "person" means the prosecutor, who is a person authorised to pursue criminal proceedings, which, it is contended, is what the term means. The Attorney General argues that the 1986 Act was specifically conceived of as providing a purely administrative means of seeking and issuing summonses, to which it would be contrary to the intention and purposes of the Act to interpret "person" as excluding legal persons. The Attorney General further maintains that the character of the prosecutors named in or alluded to in s 1(3) supports the view that references to "person" in the 1851 Act are meant to include both natural and legal persons.

19. Arguing that the public interest is germane, the Attorney General contends that the diversity and volume of prosecutions which operate pursuant to the 1986 Act requires Ministers, in particular, to act in the manner described, and that an interpretation which would require firms of solicitors to issue summons in the name of individual members of the firm would be contrary to the public interest for two main reasons. The Attorney General contends, in that regard, firstly, that the requirement to name a member of the firm on the issue of each summons would create a disincentive for solicitor firms to perform such work by exposing the named members of the firm to potential action as a respondent in any subsequent proceedings. The second reason the Attorney General provides is that this disincentive would consequently create risks to effective and efficient administration of justice and delays to prosecutions. The Attorney General maintains that this could be contrary to the public interest in the efficient administration of justice and would also prejudice the right of the accused to a speedy trial by imposing administrative burdens that it claims are neither required by, nor apparent in, the 1986 Act.

 

20. To these submissions, on behalf of Conor Quinn, the correctness of the High Court decision and the reasoning thereof constitutes the main reply. On behalf of Conor Quinn, it is submitted that the judgment of the High Court contains a thorough consideration of the meanings of the relevant mentions of the word "person" both in the Act as enacted and as amended. It is asserted that the High Court's application of the contrary intention test was "fully alive" to the possibility of disparate meanings of a word within the same Act and/or within the same section of an Act. He contends that the High Court did not proceed on the basis that that there be a uniform meaning of "person" throughout the 1986 Act and "deliberately stayed within his lane", as it is put, by not considering references to "person" that were outside the provisions suggested.

 

21. On behalf of Conor Quinn, it is refuted that the legislative intent of the 1986 Act was to make the administrative process for issuing summonses less formal and prosecutor friendly. It is submitted that there is no basis for the contention that the legislative intent in requiring the specification of the name of the person who applied for a summons at s 1(6)(a) was to reduce the scope for challenges to the issue of those summonses. He contends that the specification of a name is to ensure that the application is indeed made on behalf of a prosecutor and that this is done for the benefit both of administrative propriety and of informing the accused of this information - in other words, that the inclusion of an agent's name is a safeguard against abuse of the provision. Here, due process arguments are invoked that the requirement that the person who makes the application be named in the summons does not cause uncertainty in practice, rather it provides for administrative certainty and accountability. Thereby it is argued that the "convenience of shielding staff or others by anonymity" when applying for a summons does not reflect the legislative intent of specificity in s 1(6) of the 1986 Act and that the argument that the naming of individual solicitors risks their being named in subsequent proceedings is "difficult to fathom and requires explication."

 

22. On behalf of Conor Quinn, the District Court (Summons) Rules 2005 which amended the District Court Rules 1997 to substitute a new Order 15, which deals with the issue of summonses alleging offences is invoked. It refers to Order 15 rule 6, which provides:

 

6. (1)In the case of every summons issued otherwise by transmitting it by electronic means to the person who applied for it or a person acting on his or her behalf, there shall be issued with such summonses a copy thereof for service upon each person to whom the summons is directed.

(2) Where a summons is issued by transmitting by electronic means to the person who applied for it or a person acting on his or her behalf, a true copy of such summons shall be served upon each person to whom the summons is directed by electronic means.

23. Conor Quinn's submissions put forward various other rules within Order 15 which refer to a "person against whom the complaint is made", "the arrest of a person" and "charging the person with having committed an indictable offence" and a requirement to "state the name of the person against whom the complaint has been made...and the address (if known) at which he or she ordinarily resides." Out of this is constructed the contention that even if these references to "person" may be applied to both natural and artificial or legal persons, they are inconsistent with a meaning of unincorporated aggregate of individuals.

 

By or on behalf

 

24. There is an entitlement to apply for a summons either by the "person authorised by or under any enactment to bring and prosecute proceedings for the offence concerned", here an allegation that a planning enforcement notice was not complied with, or "on behalf of" that person. While the office of the Attorney General and that of the Director of Public Prosecutions is held by an individual person, as would be any Minister authorised by statute to prosecute particular offences, including such corporations sole must of itself indicate that the primary statutory meaning of person as including, in the words of s 18(c) of the Interpretation Act 2005, a "body corporate (whether corporation aggregate or a corporation sole) and an unincorporated body of persons, as well as an individual". Further, within the same rule "the subsequent use of any pronoun in place of a further use of" person does not displace the core meaning of this technical term.

 

25. While it is possible that an individual Minister, a natural person occupying a post that is a corporation sole as a matter of law, as the person holding the relevant office of State, might be inspired to personally apply for a summons, reality suggests the invariable interposition of some individual of appropriate expertise acting on their behalf. The wording as between the original form of s 1 in subsection (4) of the 1986 Act and the wording in subsection (3) as substituted in 2004, changes only by the earlier version having surplus words "in relation to an offence", unnecessary since, contextually, summonses in the District Court indicate a range of information. This illustrates that in substituting a section, rather than making a series of piecemeal and confusing statutory alterations to individual words, a replacement may proceed on the basis of considering the form of wording of the original and tidying up the language generally, simply because the opportunity presents. But, a summons is essentially information directed by the District Court to a particular individual and on behalf of another so that a justice process may take place. Principally, in criminal matters, the name of the prosecutor is stated in the title - as it most obviously is here - as is the name of the proposed defendant in criminal matters. There can thus be no doubt as to who is applying for the summons: it is always the prosecutor, provided the prosecutor is authorised to prosecute.

 

26. The question to be asked, therefore, is not that proposed on behalf of Conor Quinn as to who is the individual, contended to be capable only of being a natural person, who applies for a summons, but rather on behalf of whom is the summons applied for. Nor is it helpful to propose that this must be an individual, not a corporation or an unincorporated association, since whether electronically or by application in the office of the relevant District Court clerk, that has always been a natural person. With computerised systems, that may change. What does not change is that the individual who does the work of drafting the summons, including the correct particulars and being meticulously careful in that task, is not applying for themselves but for the party authorised to prosecute. And that party is a disclosed principal. It cannot be overstated that the party on whose behalf a summons is applied for is the party prosecuting: therefore, the party named on the title. Lord Hatherley in Gillespie v City of Glasgow Bank (1879) 4 App Cas 632, 642, thus described that form of words:

 

I cannot perceive a difference between the words "for behoof of" and "in trust for". I hold the expression "for behoof of" to mean exactly the same as if the words had been "on behalf of" or "for the benefit of", or any other of those other words, of which many might be suggested, which indicate that although to the bank you are the absolute owner of shares, yet as regards a third person, with whom you have entered into an arrangement, you are not that owner.

 

27. See also Digby Brown & Co v Andrew Finlayson Dunnet Lyall and Others (1995) SLT 932, (1995) SCLR 572. While the case was decided on a different point, McCracken J's judgment in Kelly v Hamill [1997] IEHC 7, sets down a persuasive analysis as to who is, as a matter of law, the applicant for a summons. After disposing of the challenge to this summons on the ground that jurisdiction is generally accepted through answering a summons, in other words turning up in court on the day required, McCracken J then considered a secondary point which was that an official, a Miss MacNamara who worked for the Department of Justice but was seconded to the Gardaí without being sworn as a member of An Garda Síochána, could not apply for a summons unless the person physically making the application were themselves entitled to prosecute or were delegated in that regard. At page 6, McCracken J stated:

 

The primary argument made on behalf of the Applicant was that the proper interpretation of Section 1(4) of the Courts (No. 3) Act, 1986 is that, in the present case, the Director of Public Prosecutions must authorise a person to apply for the summons, and that in fact he authorised Garda Carmody in one case and Sergeant Tracey in the other cases, and that there could be no further delegation by the Garda officer of the authorisation given them by the Director of Public Prosecutions. In my view this is a wrong interpretation of the Section. The application is to be made "by or on behalf of" the relevant prosecutor. The Section does not state what form of direction or authority must be given to the prosecutor, it merely states that the application must be made, if not by them personally, then on their behalf. There is no question of the Director of Public Prosecutions having to authorise a specified officer to carry out a specified function, such as frequently occurs in relation to statutory functions. I have no doubt that Miss MacNamara was perfectly entitled to make an application on behalf of the Director of Public Prosecutions in the present case, and furthermore that the summons correctly stated that the applicant was the relevant member of the Garda Síochána, and not Miss MacNamara. They were the relevant officers in charge of the prosecutions. This does not mean that they must personally attend the District Court Office, or personally fill in a form of application which is not in statutory form. As, I have said, applying for a summons is an administrative act, in respect of which very broad guidelines are contained in the relevant statute and statutory instrument, and in my opinion the Applicant, being the Garda in charge of the investigation in the present case, is perfectly entitled administratively to request some other person to physically attend at the District Court Office, and indeed physically to fill in whatever form is necessary.

 

28. The point being that though the official who attended and filled in the relevant form was a person seconded from the Department of Justice, the prosecuting Garda, entitled by statute in that regard, was the applicant. Similarly, this firm of solicitors, VP McMullin, is not authorised to prosecute criminal offences in their own right, in contrast to the entitlement of the Incorporated Law Society to make certain applications in relation to solicitors under the Solicitors Acts 1954 to 2015, but have initiated an accusation through summons where the prosecutor is Donegal County Council. While that in itself is the true question, by whom was the summons issued? The face of the summons supplies the answer, while general principles of agency underpin that analysis.

 

29. An agent may not be liable in contract if in acting on behalf of a principal, that principal is disclosed to the other party to the agreement; Paul A. McDermott and James McDermott, Contract Law (2nd edition, Dublin 2018) [19.40], E Peel (editor), Treitel on The Law of Contract (12th edition, London 2011) 750. Authority arises by agreement, as between the agent and the principal. The nature of commercial relationships being such that business is transacted through agents, through express disclosure of the function of the agent, or by the agent correctly identifying for whom he or she acts, privity in the contract bypasses an agent acting within the scope of the authority defined by his principal and to the contracting parties. Where sued, an agent is entitled to be indemnified by the principal where that agent has acted within the scope of the authority conferred by him or her. In acting outside the scope of conferred authority, the agent may become liable to the principle for breach of the warranty of authority. Here, the principal is always the party entitled to prosecute, whether a Minister or a local authority. The disclosure of that is on the face of the summons. The person applying may be the prosecutor or someone acting on behalf of the prosecutor; hence the wording "by or on behalf" in s 1(3).

 

30. Here, it is unnecessary to reference the fine issues of agency which have troubled the courts in the interpretation and development of the common law. As regards partners in an unincorporated association, such as a firm of solicitors, each partner has authority to bind the other partners in the firm. Other situations may confer authority on agents by custom or through a course of dealings leading to such ostensible authority as will bind the principle. When cloaked with express authority, an agent engages such authority to bind the principle as is necessary for, and incidental to, completion of the primary tasks within the scope of the actual authority expressed by the principle; but no more than that is necessary. McDermott and McDermott, Contract Law [19.42], Treitel on The Law of Contract [16.014 - 16.030].

31. Where an agent has authority, he or she is not liable for such acts as are transacted, such as the formation of contracts, provided that the agency is put on the table with the identity of the principle for whom the agent acts being disclosed. Failing to disclose may render the agent and the principle liable on a contract, in express departure from the doctrine of privity. This may be analysed on the basis that undisclosed agency does not extend the contract to the principle but remains with the agent in consequence of what a reasonable party to the relationship would conclude, and where improperly disclosed, under the implied warranty of authority; which can be considered a contract in itself. But, here the agency is disclosed whether the firm of solicitors applying for a summons is specified on the face of the summons or not. Always, a firm of solicitors acts as agent for the principal entitled to prosecute. Whether they are named or not, that name, whether of the firm or of a person within the firm, is outside the relationship of prosecutor and defendant that the summons establishes. It is irrelevant whether the firm is a limited liability partnership, or an individual sole-practitioner or, most commonly, a partnership since the application is on behalf of the principal, namely the party entitled to prosecute.

32. To the principle, the agent, whether a partnership or not, owes duties to complete relevant tasks and to discharge these with appropriate care and diligence. Hence, an agent must eschew conflicting obligations, such as personal profit within the scope of his or her duties, but may engage in these where there is full disclosure and consent. In this context, the agent, the solicitor or solicitors' firm, is not acting as prosecutor but on behalf of the party entitled in that regard.

Words and background

 

33. Referencing Murray J in Friends at paragraph 56, an argument has been put forward that since s 18(c) of the Interpretation Act 2005 is concerned with the construction of "any part of an enactment", it is possible that the same word may be used in different parts of an enactment to encapsulate different meanings, to the extent that the same word may carry different meanings even with the same section or subsection. Hence, in Briggs v Gibson's Bakery Ltd. [1948] NI 165, it was held that the word could, notwithstanding the provisions of the Interpretation Act 1889, have different meanings within the same section of an Act. That is not the case here. Expressly, the definition of person in the Interpretation Act 2005 may be disapplied; as where a statute within its interpretation section gives an express meaning at variance with the overall rule. Here, there is no such displacement. Secondly, a contrary intention may become manifest from the context and purpose of an enactment as reasoned from its text. No such contrary intention appears here. Nor is there any reason of policy whereby such an interpretation might change the ordinary meaning of the statutory language. Since the engagement of firms of solicitors is for the purpose of legal work, not only advice on commercial or criminal issues, but also in engaging expertise in litigation and in the launching through proper form of a criminal or civil action, the Oireachtas must have expected that firms of solicitors would apply for summonses in complex criminal matters such as planning prosecutions. There was no reason to out-rule what was a common practice and one helpful to the justice system. Without technical knowledge, cases commenced on the wrong footing are imperilled. There is no evidence here within the terms of the substituted section that any radical and far-reaching change to the law was intended; O'Connell v Governor and Company of the Bank of Ireland [1998] IESC 3, [1998] 2 IR 596. Context within the enactment and within where the enactment fits in the legislative body informs an analysis. How a statute fits within the history of a particular branch of practice and how otherwise the subject matter, here summonses to commence criminal proceedings in the District Court, may elucidate its purpose. In analysing the mischief which legislation is designed to address an answer may become clear; see Oliver Jones, Francis AR Bennion, Bennion on Statutory Interpretation (6th edn, London 2013) where it is suggested at 540 that:

 

The interpreter should treat the express words of an enactment as illumined by consideration of its context or setting. The words are not deployed in a vacuum... Courts accordingly may have regard to the legislative history, the statutory context furnished by legislation in pari materia [on the same subject], and the common law context.

 

34. It may be that a statutory provision addresses a situation inimical to the application of the general provisions of s 18 of the Interpretation Act 2005. Hence, in Law Society v United Service Bureau Ltd [1934] 1 KB 343, where bodies corporate could not be a firm of solicitors, a reference to "person" necessarily departed from the meaning in the relevant Interpretation Act. Similarly in Re Worldport Ireland Ltd (In Liquidation) [2008] IESC 68, [2009] 1 IR 398, s 27 of the Companies Act 1990 could not be construed to enable a body corporate to be a "shadow director", since as a matter of law a company could not serve as a board of directors of bodies corporate; the directors had to be individual persons. Nor should the provisions of s 5 of the 2005 Act be forgotten, since the plain meaning of the relevant section is that the applicant is the person for whom the summons is sought and to otherwise construe the provision is to fail to reflect the plain intention of the Oireachtas in a context where the Kelly case exemplifies that construction; see The State (Armstrong) v Donnelly [1985] IR 636.

 

35. Thus, there is no reason why the "person" in the provision does not mean the "person" on whose behalf the summons is sought. Furthermore there is no reason why the person applying has to be identified as a living human being. This is not a reference to the agent acting on that behalf and there is no basis for such a construction based on the legal personality of the applicant where they are acting on behalf of an authorised individual or corporation sole. Section 18(c) of the 2005 Act cannot be read so that "person" includes exclusively individuals, but rather references both natural, incorporated and unincorporated bodies throughout. In tort, the actions of an individual on behalf of an unincorporated body can make those individuals liable; Hickey v McGowan [2017] IESC 6, [2017] 2 IR 196. While an argument has been advanced that reference to clerks in the District Court can only mean individual people, there is nothing which thereby affects the ordinary meaning of the use of the term "person". While a signature may be part of subsection 1(14), that can be the name of the person, including corporation sole or local authority, authorised to prosecute or the individual acting on their behalf. Nor is there any valid argument in the use of pronouns in various corners of the very short 1986 Act, as substituted, since s 18 of the Interpretation Act 2005 makes it clear that the use or dis-use of pronouns does not recalibrate a corporate or unincorporated body into a natural person as a statutory requirement. For the avoidance of doubt, in this administrative action of applying for a summons, "the name of the person who applied for the issue of the summons" is the prosecutor. Since the summons will specify that the person summonsed will be accused at a sitting of the District Court on a named day of a particular offence, the prosecutor, being the person authorised to pursue such offence, appears on the title of the summons. The fact, as is invariably the case, that a firm applied on behalf of that "person" to have the summons issued, or that the issuing firm is named as the person who applied for the issue of the summons is not germane. The specification may be of the prosecutor or of the agent acting on behalf of that prosecutor. Section 1(3) gives a choice in express terms: "by or on behalf of" the person entitled to prosecute, while s 1(6) requires that the summons "specify the name of the person who applied for the issue of the summons". While it is contended on behalf of Conor Quinn that reasons of policy demand a transparent revelation of not only the firm of solicitors applying, which is also argued to be impossible as they are not an individual person, but the actual individual who completes what is essentially a logistical task. Here, it is to be noted that the definition of "prosecutor" expressly "includes a person acting on behalf of the prosecutor". Not only is there no reasons why that person be an individual, rather than a firm, but in acting on behalf of a disclosed principal, the logic of the argument advanced on behalf of Conor Quinn would be that a firm of solicitors would not be entitled to prosecute. In all cases, whether specified on the summons or not, the prosecutor is the party so named in the title of the summons and the firm acting in that regard, either in applying or in advocating in court, is authorised by the express wording of the legislation.

 

Partnerships

 

36. Solicitors may be sole practitioners, in which case the principal, perhaps employing other solicitors as well as administrative staff, will be sued as that particular individual. Larger firms may consist of perhaps scores of partners. Each one would be jointly and severally liable for the wrong, such as negligence in failing to commence a personal injury suit within a limitation period, of the others. Hence, where a partner in a firm develops a financial problem and perhaps defrauds a client, it is not only that solicitor who is personally liable but, because of the partnership, each of his or her partners. Where recovery is from only one of these, that partner has the entitlement to recoup an equivalent share from the others in the partnership. Michael Twomey and Maedhbh Clancy (ed), Twomey on Partnership (2nd edn, Dublin 2019) 265.

 

37. This is reflected in the transparency required of solicitors by SI No 178/1996, the Solicitors (Practice, Conduct and Discipline) Regulations 1996. This provides at Article 4(i):

 

The name of a practice under which a solicitor of firm of solicitors carry on business shall consist only of the name or one of the names of the solicitors or one or more of the present or former principals of the firm as the case may be, or such other name as is approved in writing by the [Incorporated Law] Society.

 

38. Under Article 6, even where the practice of a firm of solicitors is carried on under the true names of the partners, as in Young and O'Leary, the notepapers must list all the partners and, where assistant solicitors are listed on such notepaper, a differentiation is required to be made as between their names and the names of the partners. Hence, in suing a partnership, absent limitation in liability or quasi-, or actual, incorporation under legislation, where possible, the defendants consist of all of the partners. It follows, that even if the point raised as to the necessity for a person to apply for the issue of a summons were correct, the firm applying, consisting of the partners of that firm, are all individuals and act as such. But, the point fundamental in answer to this case stated is that solicitors act as the agent of the client and their involvement in what is an administrative procedure cannot undermine the scheme of the act that the application is made on behalf of a person entitled to prosecute. Twomey on Partnership [10.07].

 

History

 

39. Reverting to the principle, citing Bennion above at paragraph 33, that the history of an enactment and its legislative purpose may inform construction, a submission was made in oral argument on behalf of Conor Quinn that under the 1986 Act, prior to the substitution of the relevant section in s 49 of the 2004 Act, a firm of solicitors could have validly sought the issue of a summons. This was because, as it was put, subsection (3) merely required a statement of the offence with the name and address of the alleged offender, together with a statement that he or she would be accused at a particular sitting of the District Court; but that under the current form, subsection (6) requires the name of the person who applied for the summons, the application date, and reiterates that the person will be accused at a sitting of the District Court specified, the name of that person with a statement of offence and a specified name for the clerk issuing. One may note that "for the avoidance of doubt", subsection (7) does not require that the potential penalty be set out, if the person to be accused is convicted. Potential penalties are never specified in offence particulars.

 

40. The 1986 Act was a speedy response to the decision of this Court in The State (Clarke) v Roche [1986] IR 619. The legislation had two specific and inter-related purposes: to make the issue of a summons an administrative action, whereby a person was required to attend at the District Court to answer a charge on a particular date; and to divert other forms of prosecution into the traditional form that had existed up to 1986 whereby under the Petty Sessions (Ireland) Act, 1851 "information" could be "given to any justice that any person has committed or is suspected to have committed any treason, felony, misdemeanour, or other offence" whereupon a justice could "require the attendance of any person" or decide that "a warrant shall issue for the arrest or committal of any person". The common informer system, to which this refers, of complaint direct to a judge, continues to subsist and through the legislation is to be controlled into particular forms of cases; Kelly and Buckley v District Judge Ann Ryan [2015] IESC 69, [2015] 1 IR 360. In Clarke the main point taken was that since it had been impossible to proceed on the first summons issued, a service issue, but whereby the second summons on reissue did not recite that the complaint had been made to the clerk who first issued it, the summons was bad. The Supreme Court held that under the 1851 Act, the issuing of a summons on foot of a complaint was a judicial act, in distinction to an administrative act capable of being lawfully delegated. It had been submitted that issuing summonses by hand was an impossible task, but that individual consideration was required, something impossible where the procedure was linked to a computer system for printing and issuing summonses. Finlay CJ commented at p 639 that while the Court should commend efficiency, that did not answer a legal point:

 

The Court cannot, however, legislate so as to create that objective nor can it be influenced by the validity of that objective in its task in interpreting the provisions of the statutes to which we have been referred. Secondly, the prosecutor asserts that with regard, at least, to complaints made by members of the Garda Síochána of the commission by individuals of summary offences, the activity of a District Court clerk in deciding to issue a summons is not the carrying out of a judicial act but is rather the carrying out of an administrative or ministerial act, and that as such it is capable of being lawfully delegated by him. Secondly, it is asserted, and in a sense, in the alternative, that the true legal position is that the receipt by a clerical assistant authorised by a District Court clerk to receive it, of a complaint or information, is the making of that complaint. If, it is submitted a summons is subsequently issued, (whether it is issued validly or not), and if the defendant appears in answer to that summons, as he did in this case, the court is entitled to entertain the charge, a complaint having been made, within the time limit originally provided, when it was received by the clerical assistant, and the defendant being before the court and being capable of being dealt with. In making this case, counsel on behalf of the prosecutor has sought to carry out the difficult task of recommending to us that we should follow the reasoning of the House of Lords in Hill v. Anderton [1982] 2 All E.R. 963, in so far as it decides that on similar statutory provisions applicable in England a complaint is made when it is received by a clerical assistant to the Magistrate's clerk for the purpose of stopping the time from running, and reject that decision and the decision in R. v. Gateshead Justices, ex parte Tesco [1981] 1 All E.R. 1027 in so far as both those cases decided that the issue of a summons was an act of a judicial nature. I accept what is stated in the judgment of Barron J., namely, that it is not necessary to invoke the aid of decisions arrived at in England on comparable legislation in order to reach a conclusion on the issues arising in this case. In the course of his judgment he has pointed out that he has found in Minister for Agriculture v. Norgro Ltd. [1980] I.R. 155; The State (O'Leary) v. Neilan [1984] I.L.R.M. 35; Attorney General (McDonnell) v. Higgins [1964] I.R. 374; Irish Insurance Commissioners v. Trench (1913) 47 I.L.T.R. 115 and R. (Futter) v. Cork Justices [1917] 2 I.R. 430 considerable support for the contention that the complaint in order to be made within the meaning of the Act of 1851 must be brought to the notice of the person who is authorised to receive it.

 

41. In consequence, a complaint must mean just that:

 

If, in ordinary language, for example, a person asserts that he has made a complaint with regard to the conduct of some servant or agent to his master, it seems to me that he means that he has communicated to the master's mind his grievance or complaint. I cannot see how it is possible to distinguish between the concept of making a complaint to a particular individual and the concept of that particular individual receiving a complaint.

 

42. Therefore, the court could not accept that a complaint could be made to a clerk of the District Court without being communicated to that person. Hence, the complaint in that case, and in many other such cases depending on the outcome, had not been made "in accordance with the section of the Act of 1851". Finlay CJ added that "on the terms of s 10 of the Act of 1851, it is an inescapable conclusion that the issue of a summons upon the making of a complaint is a judicial as distinct from an administrative act." Referencing powers that had been specifically given to Peace Commissioners by statute and noting the absence of any such intervention for clerks in the District Court, the origin of the 1986 Act becomes plain from the conclusion of the judgment:

 

The difficulties arising from the desirability to avail, if at all possible, of modern and technical equipment and procedures in order to facilitate the issuing of District Court summary summonses may not be as great, from a legal point of view, as might originally appear.

 

It appears to me that there is much to be said for the point of view that, with regard to summary summonses issued in criminal cases by members of the Garda Síochána at least, it is no longer necessary nor appropriate for a justice of the District Court or any other person to reach a judicial determination as to whether the summons should be issued.

 

Consideration, therefore, it seems to me, should be given to replacing s. 10 and s. 11 of the Act of 1851 with statutory provisions more suitable to the modern District Court which could include the procedure for the issuing of summonses, in criminal cases at least, as being an administrative procedure only and which could then, without any question of constitutional challenge, provide that the complaint should be made to the District Court and that the summons should be issued by the officers of that Court upon the making of the complaint.

 

43. And that is what the 1986 Act does. The 2004 substitution is no different. Requirements in legislation are practical requirements and are not laid down as technical minefields of legal formalism, most especially as issuing a summons is part of the administration of the courts and is no longer a judicial act. In that regard, it is to be noticed that the Oireachtas has expressly stated in section 1(1) that proceedings "in the District Court in respect of an offence may be commenced by the issuing, as a matter of administrative procedure, of a document (in this section referred to as 'a summons')". The procedure has ceased by express words to be judicial. In Kelly v Foyle Fisheries Commission and District Judge Liam McMenamin (High Court, unreported, Morris J, 24 April 1995), a challenge was issued on a point inverted to the one put forward on behalf of Conor Quinn. It was that a firm of solicitors had no authority to bring an application on behalf of the Commission and the argument was furthered by reference to the, inapplicable, language of the 1851 Act, in asserting that the firm was the common informer. However, the application had been made under the 1986 Act and the process was administrative whereby the firm of solicitors initiated the process for the Commission. Morris J, at p 5 of the unreported judgment, stated:

 

I am satisfied that in so applying, V.P. McMullen & Son did not act as common informer. They were not proposing to prosecute this offence. The summons clearly identifies that the prosecutor is the Northern Regional Fisheries Board (or in Mr. Ivers case an officer of that board) and moreover I am satisfied that there is no evidence before me to indicate that V.P. McMullen & Son is a body corporate. I accept on the authority of Cumann Luthchleas Gael Teoranta -v- District Justice Desmond Windle (Supreme Court, 22nd June, 1993) that a body corporate does not have the right to prosecute without statutory authority in its capacity as common informer. However, in the present case I am satisfied that it did not purport to act in this capacity.

 

44. It should further be noted that there was no reason of a prevailing mischief that required correction whereby the 2004 substitution of the original provision would remove from their traditional task as agents in the initiation of a prosecution, firms of solicitors throughout the country. Finally, there is no aspect of due process whereby a meaning might be implied on the provision to require the identification of any person engaged in what has been, over the last almost 40 years, a purely administrative task.

 

Conclusion

 

45. In the result, the appeal should be allowed from the opinion of the High Court. The question asked on the case stated by Judge Sandra Murphy is to be answered affirmatively. A firm of solicitors may apply for the issue of a summons since, whether a partnership, a limited liability partnership, a sole-practitioner or whether named as the individual doing the final task, either in person or electronically, or by reference to the title of a firm, a person in statute can be an individual, a corporation or an unincorporated association, and the action is that of a person acting on behalf of an authorised prosecutor.

 

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