AN CHÚIRT UACHTARACH
THE SUPREME COURT
Supreme Court Appeal Numbers: S:AP:IE:2024:000145
High Court Record Number: 2022/586 SS
O'Donnell C.J.
Collins J.
Donnelly J.
BETWEEN/
DONEGAL COUNTY COUNCIL
APPELLANT
– AND –
CONOR QUINN
RESPONDENT
– AND –
THE ATTORNEY GENERAL
NOTICE PARTY
JUDGMENT of Mr. Justice Brian Murray delivered on the 13th of May 2025
1. While I agree in full with the judgment delivered by Charleton J. (whose account of the facts, arguments and issues I gratefully adopt), I am anxious to stress the straightforward considerations that lead me to the conclusion that this appeal should be allowed. The most important of these is the proposition – accepted by all of the parties - that from the enactment of s. 1 of the Courts (No. 3) Act 1986 ('the 1986 Act') until its amendment by s. 49 of the Civil Liability and Courts Act 2004 ('the 2004 Act'), there was never any question but that an application for the issue of a summons pursuant to that provision could be made by a body corporate or an unincorporated association.
2. In seeking to contend that this was changed in respect of unincorporated associations by the imposition by s. 1(6)(a) of a requirement that a summons shall 'specify the name of the person who applied for the issue of the summons', the respondent faced three problems. First, if most obviously, nowhere does the new section - or any other provision of the 2004 Act - state that henceforth a summons could not be issued on the application of an unincorporated association. Second, the implicit exclusion of unincorporated associations from the category of persons who could make such an application runs up against the general presumption that the Oireachtas does not introduce significant changes to the law in such an opaque and roundabout way. Third, the consequence of s. 18(c) and s. 4 of the Interpretation Act 2005 is that the starting point for any consideration of the issue is that 'person' includes, not excludes, unincorporated associations.
3. Overcoming those objections would demand either a clear theory of why the Oireachtas would have wished to make this change, or a feature of the statutory text that strongly supported the contention that it did so - and preferably both. If the first and universal rule of statutory construction is directed to what the words used in the provision mean, the question of why they were intended to bear any asserted meaning will often be a close runner-up. Here, the respondent was not only unable to offer any plausible explanation of why the legislature would introduce this complication into the administrative process for the issue of summonses in such an indirect and oblique way - and in the teeth of the presumptive meaning of 'person' - but his theory of why the Oireachtas would wish to impose such a change in the law at all, was unconvincing.
4. In his written submissions, the reason for the asserted change obtains but reductive treatment. The High Court, it was said, found in joint cases Kelly v. The Foyle Fisheries Commission & Anor; Ivers v. The Northern Regional Fisheries Board & Anor (Unreported, High Court, Morris J., 24 April 1995) that any natural person could act as the agent of the prosecutor in making an application for the issue of a summons, and the legislative response via the 2004 Act was to require that this person be specified in the summons. The specification of the name was to ensure that the application was indeed made on behalf of the prosecutor 'for the benefit both of administrative propriety and of informing the accused of this information'. The identification of the agent, it was said, was 'a safeguard against the abuse of the provision'. This was elaborated upon further in oral submissions; the abolition of the entitlement of unincorporated associations to apply for a summons was effected to give certainty and definition, and to achieve transparency and best administrative practice.
5. These are, without doubt, laudable objectives which, one would hope, permeate all exercises in law-making. But it was far from clear what, exactly, the abuse was, how the identification of a named applicant would assist in its eradication, and why - if this was what the need for the specification of the applicant for the summons was all about - the Oireachtas did not more emphatically and obviously proclaim its determination to stamp out the practice it was, apparently, now for the first time prohibiting.
6. Moreover, if the objective of the change in the law was as contended for by the respondent, the question comes into focus of why it was only unincorporated associations that were excluded from the scope of the term 'person' and why bodies corporate were not also excluded. The trial judge ([2024] IEHC 160) proceeded on the basis that the case being made before him was that only unincorporated associations were displaced from the presumptive definition. He recorded the respondent's argument as being that the word 'person' 'is to be construed as a person with legal personhood, such as a natural person or an artificial legal person and that this necessarily excludes a brand name or unincorporated body of persons' (at para. 3 of the judgment of Bradley J.). Were that the case, the respondent's explanation of why the Oireachtas had redefined who could apply for a summons unravelled: a body corporate is no less susceptible to anonymity than an unincorporated association. Insofar as the central point made by the respondent was that the purpose of s. 1(6)(a) was to ensure that 'the agent of a prosecutor shall be identifiable by his or her name' and that, therefore, it could not capture an unincorporated association, that rationale is equally applicable to a body corporate.
7. Counsel was pressed on this issue in the course of argument in this appeal. He confessed to having equivocated on the question but said he had come down in favour of the position that the word 'person' in s. 1(6)(a) referred only to natural persons. While rendering the respondent's explanation of the rationale for s. 1(6)(a) more coherent, this exposed an incongruity in the construction of the provision he had urged. Whatever about unincorporated associations, there is and can be no doubt but that bodies corporate can be prosecutors and it is clear that both corporations and unincorporated associations can be charged with an offence. Not only does the question of how the section can be construed so that 'person' in that context meant neither an unincorporated association nor a body corporate thus require some explaining, but the change in position meant that some of the trial judge's reasoning insofar as he relied upon various provisions of the 1986 Act necessarily fell away. A number of the provisions relied upon by him in reaching the conclusion he did are in no way consistent with the exclusion of bodies corporate.
8. Of course, the exercise of the interpretation of legislation is not as much about what parliament meant, as it is about what the statute means, and it was upon the language of the 1986 Act as amended that the submissions of the parties and judgment of Bradley J. were focussed. Here the essential argument was that when put in context, the inclusion of unincorporated associations within the scope of the word 'person' as it appeared in s. 1(6)(a) was inconsistent with the substance and tenor of the 1986 Act as a whole. In that regard, it was observed that, following its amendment in 2004, the 1986 Act uses the word 'person' on eleven occasions. Several features of the 1986 Act were thus stressed by the respondent in his submissions, and by Bradley J. in his judgment:
(i) Section 1(6)(a) required that a summons 'specify' the name of the person making the application and that word, as it was used throughout the legislation, imposed a requirement that the name of the person be identified clearly and precisely. The meaning of 'the name' as used in that provision and in s. 1(6)(c) (which refers to the 'name of the person' alleged to have committed the offence) was suggestive of the name of a natural person. A similar point was made in reference to s. 1(6)(e) (which requires that the summons specify the name of an appropriate District Court clerk, thereby connecting 'name' with a natural person).
(ii) Sections 1(6)(c) and (d) use the pronouns 'he' and 'she' in reference to the accused and this, it was contended, suggested that 'person' meant a natural person and not an unincorporated body of persons. In particular, it was proposed that the person who acts as an agent for a prosecutor be identifiable and thus not an unincorporated body of persons.
(iii) Section 1(14) provides that 'prosecutor' includes 'a person acting on behalf of a prosecutor' and the same section speaks of a summons being 'certified by the prosecutor'. This, it was said, suggested the signature of a natural person and not an unincorporated body.
9. I do not find the proposition that these provisions combine to render it contrary to the substance and tenor of the 1986 Act that an unincorporated body could apply for the issue of a summons under the statute, convincing. Unlike the situation in Friends of the Irish Environment CLG v. The Legal Aid Board [2023] IECA 19, where the court (at paras. 57 - 60) was concerned with the frequent use throughout five provisions in the Civil Legal Aid Act 1995, as amended, of the word 'person' to refer to just one actor: the applicant for, or grantee of, civil legal aid, s.1 of the 1986 Act (as the respondent himself stressed) uses the term 'person' to refer to a number of different participants in the criminal process: the prosecutor, the accused, and the applicant for a summons. There is, in truth, no necessary read across from one of the provisions referring to one of these 'persons' to another and, if there was, it militated against the case advanced by the respondent. Making the reasonable assumption that the Oireachtas did not intend to exclude any category of potential prosecutor or accused from the legislation, it must follow that the word 'person' when used in reference to either prosecutors or accused was clearly intended to refer to a prosecutor who was a body corporate, and to an accused that was a body corporate or an unincorporated association.
10. Once that is understood (and bearing in mind again that Bradley J. was confronting an argument to the effect that the reference to 'person' in s. 1(6)(a) included bodies corporate), it is I think apparent that the provisions relied upon by the respondent did not bear the weight of his argument. To begin with, there is no necessary connection between a name, and natural personhood. The summons issued here does 'specify the name of the person' applying for its issue: their name is 'V.P. McMullin'. If they wished, they could have identified all partners of that firm, which would have been more specific in fact, but no different in law. And, insofar as it is now said that bodies corporate were also excluded from the section, they also have a name. Section 1(6)(c) does not add to the matter one way or another: when it refers to 'the name of the person alleged to have committed the offence' it could also be referring to the name of a body corporate or, for that matter, an unincorporated association (which the respondent correctly accepted may commit a statutory offence). For the same reason, the reference (in connection with the accused) to the pronouns 'he' and 'she' in s. 1(6)(c) and (d) cannot be only to natural persons. And, finally, given that a prosecutor can be a body corporate, the fact that it certifies the summons cannot in itself result in the conclusion that this must be done by a natural person.
11. Before leaving this, it should be explained that in the course of the oral argument in this appeal the issue arose as to whether the 'person who applied for the issue of the summons' referred to the prosecutor (as the Attorney General, but not the prosecutor, contended) or to the specific person (or entity) that undertook the operational act of seeking the summons. The case proceeded before the High Court on the basis that it was the latter. In fact, it seems clear to me that it referred to either and both. Prosecutors themselves can, of course, apply for the issue of a summons. Where they do so, they will be properly named as the person who made the application. As observed in the judgment of Charleton J., where an application is made for a summons by a firm of solicitors on behalf of a prosecutor the solicitors act as an agent for that client. So, they are the 'person' who applies for the summons, but because they are doing so for, on behalf of and with the authority of the prosecutor, their application is that of the prosecutor and they also are the person that makes the application. A summons that identifies either (or both, as was the case here) is validly issued, and correct in form.
12. The judgment of Bradley J. in this case presented a diligent, careful and skilful exercise in statutory analysis. However, I fear that the High Court afforded insufficient weight to the fact that it was the contention of the respondent that the 2004 Act had made a significant change to the law, for which a credible and internally consistent justification was never proposed. I also note that the case made to him seems to have been different from that advanced here insofar as Bradley J. assumed that a body corporate was a 'person' for the purpose of at least some of those parts of the section that used that term. I would, accordingly, allow this appeal and would answer the question framed in the case stated as follows:
'Section 1 of the Courts (No.3) Act 1986 (as amended) authorises the issue of a summons on the application of "V.P. McMullin" being a firm of solicitors and an unincorporated body of persons.'