Babington v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice MacMenamin
• Judgment Date: 18 December 2012
• Neutral Citation: [2012] IESC 65
• Court: Supreme Court
• Date: 18 December 2012

[2012] IESC 65

THE SUPREME COURT

Fennelly J.

Clarke J

MacMenamin J.

RECORD NO. 116/2012

Babington v Min for Justice & Ors

BETWEEN

OLAJIDE BABINGTON

APPLICANT

AND

THE MINISTER FOR JUSTICE AND LAW REFORM, IRELAND AND ATTORNEY GENERAL

RESPONDENTS

EEC DIR 2004/38

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006 REG 6(2)(A)

RSC O.84

RULES OF THE SUPERIOR COURTS (JUDICIAL REVIEW) 2011 SI 691/2011

RSC O.84 r20

USK & DISTRICT RESIDENTS ASSOCIATION LTD v ENVIRONMENTAL PROTECTION AGENCY 2007 4 IR 157 2006 IEHC 296

VEOLIA WATER UK PLC & ORS v FINGAL CO COUNCIL (NO 2) 2007 2 IR 81 2006/57/12085 2006 IEHC 240

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 3ED 2012 769-771

PRACTICE AND PROCEDURE

Judicial review

Application to amend grounds on which leave to seek judicial review granted - Reformulation of grounds by court - Omission of ground by court - Requirement for precise and succinct grounds - Possible costs sanction where over-extensive grounds - Requirement for all parties to act reasonably - Whether court omitted ground - Whether grounds over-extensive - Usk District Residents Association v Environmental Protection Agency [2006] IEHC 296, [2007] IR 157 and Veolia Water UK plc v Fingal County Council (No 2) [2006] IEHC 240, [2007] 2 IR 81 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 20 - Appellant permitted to add two further grounds (2012/179JR - SC - 18/12/2012) [2012] IESC 65

Babington v Minister for Justice Equality and Law Reform Ireland and the Attorney General

Facts: The applicant had sought leave to seek judicial review of the first respondent”s decision to refuse him permanent residency in the State. The High Court had granted leave to seek judicial review, but had restricted the grounds the applicant could seek review on and specifically had prevented him from advancing an argument based on his marriage to an EU citizen and length of residence. The applicant now sought to appeal this decision at first instance.

Held by MacMenamin J, the other Justices concurring, that the Court had earlier granted the appeal in an ex tempore judgment in November, but the Court would now take the opportunity to make general comments about procedural matters in similar judicial review claims. The recent amendment to ord 84 or the Rules of the Superior Courts 1986 (‘ord 84’) was intended to address the tendency to seek leave for review on repetitive and poorly focused grounds.

Despite the amendment to ord 84, the Courts were still receiving multiple reformulations of the same point, which was entirely counterproductive. In the instant case, the statement of grounds was unwieldy, and the Court at first instance was unsurprisingly keen to see the statement refined and reduced. In general, unreasonable submissions or conduct by parties would lead to costs consequences if the practice continued.

1 On the 8th day of November, 2012, this Court (Clarke J.) delivered an ex tempore judgment in this appeal, brought against an order of Cooke J. in the High Court. The Court held that the learned High Court judge, when granting the appellant leave to seek judicial review of a decision of the respondent, made on the 6 ^th December, 2011, refusing him permanent residency, had in this instance, while quite properly reformulating the grounds for relief so as to identify the true points at issue, erred in precluding the appellant from arguing that, by reason of his marriage to an EU citizen and his residence in the State for in excess of five years, he was now entitled to a right of permanent residency by virtue of . Directive 2004/3 8/EC.

2 The order of the High Court had set out three grounds upon which the appellant was granted leave to apply for judicial review (grounds 2-4 below). This Court has permitted the appellant to add two further grounds (grounds 1 and 5). The amended grounds in full are:-

1 The first named respondent erred as a matter of law (having regard to the European Communities (Free Movement of Persons) Regulations 2006 and 2008, interpreted, if necessary, in accordance with Directive 2004/38/ EC) in considering the circumstances in which the applicant's EU spouse exercised her right of residence (to determine whether such right was exercised in conformity with those Regulations) and in thereafter concluding that that said EU citizen wife had failed to comply with one or more of the conditions required under the aforementioned Regulations where no attempt had been made to enquire into such circumstances or determine such lack of conformity during the continuous residence of said spouse in the State for the relevant period of 5 years specified in those Regulations.

2 The first named respondent erred in law and misdirected himself in assessing the factual circumstances upon which the application and review request were based by failing to have...