Arthur Connell Nugent v The Property Services Regulatory Authority

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 05 October 2021
• Neutral Citation: [2021] IECA 250
• Court: Court of Appeal (Ireland)
• Docket Number: Record No. 2020/269

Between:

Arthur Connell Nugent

Appellant

and

The Property Services Regulatory Authority

Respondent

[2021] IECA 250

Whelan J.

Ní Raifeartaigh J.

Murray J.

Record No. 2020/269

THE COURT OF APPEAL

JUDICIAL REVIEW

Judicial review – Order of prohibition – Prosecution – Appellant seeking an order of prohibition in respect of a pending prosecution in the District Court – Whether the matter was suitable for judicial review

Facts: The appellant, Mr Nugent, appealed to the Court of Appeal from the decision of the High Court (Barr J) refusing to grant the appellant an order of prohibition and other declaratory reliefs in respect of a prosecution which was pending against him in the District Court for offences contrary to s. 28 of the Property Services Regulation Act 2011. The prosecution was initiated by the respondent, the Property Services Regulation Authority. The offences charged against him related to trading as an auctioneer (including holding a mart) without a licence from the Authority. The issues raised were: (1) whether or not the appellant requires and/or should be given an extension of time for bringing judicial review proceedings; (2) whether or not the matter is suitable for judicial review given the points raised by the appellant, being (a) a question of whether a statutory precondition to prosecution under the relevant legislation has been satisfied; (b) the terms of the caution given to the appellant on the occasion of the respondent’s inspectors’ visit to the appellant’s premises; and (c) the destruction of handwritten notes of a question-and-answer exchange with the appellant on the occasion of the same visit. Central to the appellant’s arguments concerning (a) and (b) above was the fact that, at the time of the investigation, it was the company of which the appellant was director that was under investigation, whereas the prosecution pending was as against the appellant personally. That company had, since the date of inspection of the premises, gone into liquidation and a decision was made by the Authority to prosecute the appellant personally on the basis of the same evidence.

Held by Ní Raifeartaigh J that she agreed with the trial judge that the three-month time limit for bringing judicial review proceedings had expired and that an application for extension of time was required. Ní Raifeartaigh J agreed with the trial judge that there was no evidence before the court sufficient to ground an application for extension of time or to show that the conditions for granting an extension, as set out in Order 84 Rule 21(3) of the Rules of the Superior Courts and as described in O’S v Residential Institutions Redress Board [2018] IESC 61, had been fulfilled. As regards the “caution issue”, Ní Raifeartaigh J reached the conclusion that this was a matter which should be determined by the trial judge. As to the “missing evidence” issue, Ní Raifeartaigh J could not agree with the appellant that the act of destruction elevated the case into one in respect of which prohibition should be granted. On the issue of the relationship between an investigation under s. 89 and s. 94(7) of the Property Services Regulation Act 2011, this appeared to Ní Raifeartaigh J to be a matter which fell to be determined by the trial judge.

Ní Raifeartaigh J agreed with each of the conclusions of the High Court Judge and considered that the appeal should be dismissed. As the respondent had been successful in the appeal, Ní Raifeartaigh J’s provisional view was that the respondent was entitled to the costs of the appeal.

Appeal dismissed.

UNAPPROVED

JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on the 5 ^th day of October, 2021

1 . This is an appeal from the decision of Barr J. refusing to grant the appellant an order of prohibition and other declaratory reliefs in respect of a prosecution which is pending against him in the District Court for offences contrary to section 28 of the Property Services Regulation Act 2011 (“the 2011 Act”). The prosecution was initiated by the Property Services Regulation Authority (“the Authority”). Further details will be given below but essentially the offences charged against him relate to trading as an auctioneer (including holding a mart) without a licence from the Authority.

2 . The issues raised are: (1) whether or not the appellant requires and/or should be given an extension of time for bringing judicial review proceedings; (2) whether or not the matter is suitable for judicial review given the points raised by the appellant, being (a) a question of whether a statutory precondition to prosecution under the relevant legislation has been satisfied; (b) the terms of the caution given to the appellant on the occasion of the respondent's inspectors' visit to the appellant's premises; and (c) the destruction of handwritten notes of a question-and-answer exchange with the appellant on the occasion of the same visit.

3 . Central to the appellant's arguments concerning (a) and (b) above is the fact that, at the time of the investigation, it was the company of which the appellant was director that was under investigation, whereas the prosecution now pending is as against the appellant personally. That company has, since the date of inspection of the premises, gone into liquidation and a decision was made by the Authority to prosecute the appellant personally on the basis of the same evidence.

Relevant provisions of the Property Services Regulation Act 2011

4 . Under section 28 of the 2011 Act, a person “shall not” provide a property service, or hold himself or herself out as available to provide a property service, or represent himself by advertisement or card or other object purporting to indicate that he or she is a licensee, as available to provide a property service, unless the person is the holder of a licence which is in force in respect of that property service. It is an offence to do so, punishable on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.

5 . Under section 27 of the Act, the Authority may appoint members of its staff to act as inspectors and it provides for warrants of appointment. Section 66 deals with powers of entry and inspection of premises. An inspector may require that certain information or documents be provided, and any information so provided is not admissible against the person in criminal proceedings (other than certain specified offences under the section such as, for example, obstruction of the inspectors or withholding or destroying documents).

6 . Section 89(1) provides that the Authority may cause such investigation as it thinks fit to be carried out in relation to any person who, not being a licensee, is suspected of having contravened or contravening section 28(1). The term “non-licensee” is used throughout the section. For the purposes of an investigation of a non-licensee, the Authority shall appoint an inspector, subject to such terms as it thinks fit (a) to carry out the investigation and (b) to submit to it an investigation report following the completion of the investigation. More than one inspector may be appointed in this regard. Subsection (5) provides that where an inspector has completed an investigation, he or she shall prepare an investigation report and submit it to the Authority, as soon as is practicable after having considered, in so far as they are relevant to the investigation of the non-licensee, any information or records, books or accounts (whether kept in manual form or otherwise) or other documents provided to the inspector pursuant to any requirement under section 66 as read with subsection (4), any statement or admission made by any person pursuant to any requirement under that section as so read, any submissions made and any evidence presented (whether at an oral hearing referred to in section 66(15) or otherwise).

7 . Section 94(7) of the Act provides that the Authority may bring and prosecute summary proceedings for an offence under the Act (including an offence under section 28). One of the points of contention as between the parties in this case is the relationship (if any) between an investigation under section 89 and the power to prosecute under section 94(7).

Statement of Grounds

8 . As well as seeking prohibition of a District Court prosecution of two summonses under the 2011 Act, the appellant also seeks a number of declarations:

• • that the investigation and prosecution is unlawful and in breach of the 2011 Act;

• • that the manner in which the respondent instituted and progressed the proceedings was contrary to Article 38.1 of the Constitution and contrary to his constitutional right to a fair trial;

• • that the institution and continuance of the proceedings is an abuse of process, oppressive and unfair and contrary to his rights under the European Convention on Human Rights Act 2003 as well as under the Constitution; and

• • that the totality of evidence obtained under s.89 was unlawfully obtained in breach of the 2011 Act and or natural/constitutional justice.

9 . The appellant also seeks “if necessary” an extension of time pursuant to Order 84 Rule 21(3) of the Rules of the Superior Courts within which to bring the proceedings.

10 . The grounds upon which the reliefs are sought are as follows. I have paraphrased them slightly here and substituted the term “appellant” for “applicant”. What emerges is that some grounds arise out the fact that the company was investigated whereas the appellants was prosecuted as an individual; and others relate to the destruction by the inspectors of contemporaneous handwritten notes taken on the day of their inspection. The grounds are that the Authority:

• • Arrived at its decision to prosecute the applicant in reliance on irrelevant considerations...