Barry v Mr Justice Fergus Flood and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 22 May 2012 |
| Neutral Citation | [2012] IEHC 199 |
| Court | High Court |
| Date | 22 May 2012 |
[2012] IEHC 199
THE HIGH COURT
BETWEEN
AND
RSC O.84 e21(1)
TRIBUNALS OF INQUIRY (EVIDENCE) AMDT ACT 1979 S6(1)
TRIBUNALS OF INQUIRY (EVIDENCE) AMDT ACT 1997 S3
MURPHY v FLOOD & ORS 2010 3 IR 136 2010/38/9563 2010 IESC 21
ADAM & IORDACHE v MIN FOR JUSTICE 2001 3 IR 53
VOLUNTARY PURCHASING v INSURCO LTD 1995 2 ILRM 145
A v GOVERNOR OF ARBOUR HILL PRISON 2006 4 IR 88
RSC O.84 e21
DE ROISTE v MIN FOR DEFENCE 2001 1 IR 1
BAMBRICK v COBLEY 2006 1 ILRM 81 2005/3/573 2005 IEHC 43
G v DPP 1994 1 IR 374
R v SECRETARY OF STATE EX PARTE CHINOY 1991 COD 381
GORDON v DPP 2002 2 IR 369
F (B T) v DPP 2005 2 IR 559
K (G) v MIN FOR JUSTICE 2002 2 IR 418
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(A)
GUERIN v GUERIN 1992 2 IR 287
Administrative law - Practice and procedure - Costs - Tribunal of inquiry - Judicial review - Ultra vires - Report -Fair procedures -Delay - Disclosure - Balance of justice
Facts: The applicant sought a declaration that findings made in the first named respondent's report were ultra vires and in breach of fair procedures and that he was entitled to his costs. He sought to challenge the respondent's decision in 2011, revisiting an earlier decision in 2004 refusing the applicant his costs. The respondents argued that the applicant's leave application should be set aside due to a failure to make full and frank disclosure at the leave stage of the existence of plenary proceedings and that there was a lengthy delay on the part of the applicant to act. The applicant argued that the earlier decision was ultra vires and that his financial situation as such that he could not seek redress earlier.
Held by Hedigan J. that although the delay period requiring justification was inordinate, the questions of excusability and location of the balance of justice were arguable. The facts of the case were unusual. The application to set aside the leave granted would be refused. It was arguable that the nullity of the 2004 decision could leave him financially ruined. The applicant had maintained that he could not have taken the decision to challenge the 2004 costs decision earlier and this question was a matter for the substantive hearing.
Judgment of Mr. Justice Hedigan delivered the 22nd of May of 2012
1. The applicant resides at Hollystown Golf Club, Hollystown, Dublin 15. The respondent is the Tribunal of Inquiry established on 7 th October, 1997, by Ministerial Order, to inquire urgently into and report to the Clerk of the Dáil, in relation to certain planning matters and payments matters of urgent public importance.
2. The respondent in this application seeks the following reliefs:-
1. An Order to set aside the leave granted herein (and/or part thereof) on the 18 th July, 2011.
2. An Order to set aside the said leave on the basis that the Applicant did not make a full and frank disclosure of all the material matters at the ex parte application for leave to apply for judicial review.
3. An Order to set aside the leave granted as the proceedings and reliefs claimed are out of time and / or are an abuse of process and/ or are frivolous and vexatious.
4. An Order pursuant to the inherent jurisdiction of the Court to set aside the said leave granted in the interests of justice and / or in the public interest.
5. An order determining this application as a linked application to the Judicial Review list with the Second to fourth named respondents Notice of Motion seeking similar relief in proceedings entitled the High Court Record No 2011 No. 5073 P between Oliver Barry applicant and Judge Alan P Mahon, Judge Mary Flaherty and Judge Gerald B Keyes being the Tribunal of Inquiry into Certain Planning Matters and Payments otherwise being plenary proceedings originally returnable in the Chancery List.
2 3.1 This motion dated the 29 th July, 2011 is brought by the respondents seeking to set aside the ex parte leave granted by Peart J. on the 18 July, 2011. The respondent seeks to set aside the proceedings on the basis first, that the applicant did not make full and frank disclosure of material matters at the leave application, second that the reliefs claimed are out of time pursuant to Order 84 r 21(1) of the Rules of the Superior Courts, third the proceedings are an abuse of process and / or are frivolous and vexatious and should be set aside in the interests of justice and / or in the public interest. This motion is linked with earlier plenary proceedings dated the 12 th July, 2011, in which the plaintiff (the applicant herein) sought identical reliefs regarding an order of certiorari quashing a decision made on the 7 th March, 2011 by Judge Alan P. Mahon, refusing to vacate an earlier costs ruling dated the 15 th October, 2004. The defendants in the plenary proceedings seek an order to dismiss the plaintiff's claim on the grounds of inordinate and inexcusable delay, want of prosecution and / or in the public interest. Mr. Justice Flood and the three Circuit Court judges who are the present members of the Tribunal of Inquiry into Certain Planning Matters and Payments (" the Planning Tribunal") are sued as respondents in the judicial review proceedings. Only the present members of the Planning Tribunal are joined in the plenary proceedings.
3 3.2 The applicant seeks the following relief's in the judicial review proceedings:
(a) An Order of Certiorari quashing the decision of the second named respondent made on the 7 th March, 2011 whereby the respondent declined to vacate the Order made by the said respondent as Chairman of the Planning Tribunal on the 15 th October, 2004 refusing the applicant his costs;
(b) If Certiorari is granted:-
(i) the applicant seeks a declaration that the findings made by the first named respondent in the Second Interim Report published on the 26th September, 2002 were made ultra vires and in breach of fair procedures.
(ii) A Declaration that the decision of the respondent refusing the applicant his costs was ultra vires and in breach of fair procedures.
(iii) A Declaration that section 6(1) of the Tribunals of Inquiry (Evidence) Amendment Act 1979, as amended by section 3 of the Tribunals of Inquiry (Evidence) Amendment Act 1997 is unconstitutional.
(iv) A Declaration that the applicant is entitled to costs as claimed.
(c) Damages.
(d) If necessary an extension of time to bring the within proceedings.
(e) An Order that the proceedings be determined by plenary hearing.
4 3.3 The chronology of relevant dates starts on the 26 th September, 2002 when the Second Interim Report of the Planning Tribunal issued. It found that the applicant made a corrupt payment of £35,000 to Mr. Ray Burke, Minister for Communications in May 1989. On the 15 th October, 2004 the second named respondent refused the applicant his costs before the Tribunal on the basis of a finding of obstruction and hindrance having been made in respect of the applicant. On the 21 st April, 2010 the Supreme Court in Murphy v Flood and Ors [2010] IESC 21 held that the Tribunal acted ultra vires in (i) Making a finding of obstruction and hindrance against the applicant therein (2) basing the costs refusal decision on that finding and on the substantive findings of the Second Interim Report. The Supreme Court quashed the Tribunal's decision to refuse the plaintiffs their costs and granted a declaration that the Tribunal was not entitled to make findings of obstruction and hindrance in respect of the plaintiffs. Subsequent to the above Murphy decision the applicants wrote to the respondents on the 22 nd July and asked them to reconsider their costs refusal decision. The respondent invited the applicant to make legal submissions. The applicant did so. On the 7 th March, 2011 the respondent refused to reconsider the applicants cost's application and to vacate the earlier costs order of the 15 th October, 2004. On the 7 th of June, 2011 the applicant issued a plenary summons. This summons issued 6 years and eight months after the initial costs decision of the 15 th October, 2004 and 3 months after the above decision declining to vacate the costs order of 2004. On the 13 th June, 2011 an appearance was entered to the Plenary Summons. On the 12 th July, 2011 the respondents issued a motion to dismiss the Plenary Proceedings for delay and want of prosecution. On the 18 th July, 2011 Peart J. granted leave ex parte to challenge in Judicial Review the decision of the respondent of the 7 th March, 2011. This leave was granted 6 years 9 months after the Costs decision dated 15 October 2004 and 4 months after the decision declining to vacate the Costs Order.
2 4.1 The jurisdiction to set aside leave is outlined by the Supreme Court in its judgment in Adam and Iordache v The Minister for Justice [2001] 3 IR 53 McGuinness J noted the general jurisdiction to set aside an ex parte order, citing McCracken J. in Voluntary Purchasing v. Insurco Limited [1995] 2 I.L.R.M 145, to the following effect at 68-69:-
"In my view, however, quite apart from the provisions of any rules or statute, there is an inherent jurisdiction in the courts in the absence of an express statutory provision to the contrary, to set aside an order made ex parte on the application of any party affected by that order. An ex parte order is made by a judge who has only heard one party to...
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