Beades -v- Ireland & ors, [2016] IEHC 302 (2016)

Docket Number:2015 10615P
Party Name:Beades, Ireland & ors
 
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THE HIGH COURT [2015 No. 10615 P]

IN THE MATTER OF THE IRISH CONSTITUTION AND

IN THE MATTER OF THE COURTS AND COURT OFFICERS ACT 1995

BETWEEN

JERRY BEADESPLAINTIFFAND

IRELAND, ATTORNEY GENERAL,

JUDICIAL APPOINTMENTS ADVISORY BOARD AND THE

MINISTER FOR JUSTICE AND EQUALITYDEFENDANTS

JUDGMENT of Mr. Justice Haughton delivered on the 3rd day of June, 2016

1. In this case there are two motions before the court. In the first application, the defendants seek an order pursuant to O. 19, r. 28 of the Rules of the Superior Courts striking out the Plenary Summons and Statement of Claim and dismissing the proceedings on the grounds that the pleadings disclose no reasonable cause of action and/or that any cause of action thereby disclosed is frivolous or vexatious, or alternatively, pursuant to the inherent jurisdiction of the court to strike out proceedings on the basis that they are bound to fail and constitute an abuse of process.

2. In the second motion, the plaintiff seeks judgment in default of defence. As it is more logical to first deal with the defendant’s motion to dismiss, that is what I have determined to do, and I heard argument from both parties in respect of that motion on 31st May, 2016. Accordingly, the plaintiff’s motion for judgment in default of defence will be deferred until judgment on the first motion is delivered.

3. The procedural background to this case is that by Plenary Summons issued on 17th December, 2015, the plaintiff seeks a number of orders:-

(1) an order compelling the defendants and each of them singly and collectively to adhere to the provisions under the Irish Constitution and the Courts and Court Officers Act, 1995;

(2) a declaration that nominee, Peter Kelly, as publically published for the post of President of the High Court is unsuitable and an unfit person for the position;

(3) a declaration that Peter Kelly does not comply with s. 16(7)(b) of the Courts and Court Officers Act, 1995, for reasons particularised in the General Endorsement of Claim at (a) – (h);

(4) an order compelling the first and second named defendants to set up a Judicial Council to regulate the judiciary “as is commonly required in other common law jurisdictions to protect the citizens of the State” and in further compliance with obligations under Article 6 of the European Convention; [1]

(5) “Failure to comply with the specific statutory requirements under the Courts and Court Officers Act 1995”;

(6) further and other relief; and

(7) costs.

4. On 21st December, 2015, the plaintiff sought ex parte an order prohibiting the appointment of Kelly J. as President of the High Court “until such time as there is a proper examination as to his suitability”. That application was made ex parte initially before Baker J. on the morning of 21st December, 2015. She ordered that the application be adjourned to 2pm on that day, and that the plaintiff notify and serve the defendants through the office of the Chief State Solicitor.

5. The making of that application seems to have resulted in a postponement of the ceremony due to take place before the President of Ireland to effect the appointment of Kelly J. as President of the High Court.

6. The plaintiff’s application for an injunction ultimately came on before Gilligan J. on the afternoon of 21st December, 2015, and an order was made refusing the application, and refusing a stay on the ceremony and costs were ordered to be paid by the plaintiff. Gilligan J. subsequently ordered that a copy of the transcript of the DAR (Digital Audio Recording) for the hearing held before him on 21st December, 2015 be released to the plaintiff.

7. Gilligan J. refused an application on 21st December, 2015 to strike out the proceedings for failing to disclose a cause of action, but granted liberty to the defendants to bring an application by notice of motion to strike out. I am satisfied that in so doing Gilligan J. did not determine the issue now before this court, and that there is no question of the defendants’ current applicant being res judicata.

8. The ceremony before the President proceeded and Kelly J. was duly appointed President of the High Court on 21st December, 2015.

9. It should be noted that one of the plaintiff’s complaints is that Baker J. commenced hearing his application at 2pm on 21st December, 2015, but that it was interrupted by a communication that came through the court registrar, and that the case was thereupon transferred before Gilligan J. who heard and dealt with the application. On 14th January, 2016, the plaintiff made an application before Baker J. to preserve all (relevant) material whether hard copies, electronic or all digital communications arising from the hearing before her at 2pm on 21st December, 2015. That application was, in part, refused, the court directing only that the application be adjourned to 19th January, 2016, to the extent that it related to mobile phone records of the court registrar.

10. On 22nd December, 2015, the plaintiff filed an application for leave to appeal to the Supreme Court against the order of Gilligan J. on 4th January, 2016. The defendants filed the required respondent’s notice, contesting that appeal. The defendant asserts that that appeal is now moot. I was informed that the Supreme Court did not accede to the plaintiff’s application, and the plaintiff indicated his intention to apply to the Court of Appeal for an extension of time within which to appeal the decisions made on 21st December, 2015, but such an application has not yet been made.

The Statement of Claim

11. The plaintiff delivered a Statement of Claim dated 29th January, 2016. An examination of this is central to the court’s decision in respect of the defendants’ motion, and I have considered it carefully, and also considered and taken into account the somewhat different pleas and reliefs claimed in the Plenary Summon. In so doing I have taken into account that these documents were prepared by a lay person and without the precision that would be expected of lawyers.

12. The following is a summary of the claims made by the plaintiff in his Statement of Claim:-

(i) That the plaintiff, as a citizen, has an entitlement that the Government’s executive function in relation to the appointment of judges be exercised without risking due process, integrity or imperilling justice.

(ii) That the Government fails in its duty if it knowingly or carelessly nominates as a judge a person who falls short of the “model judge” described in a passage by an “Israeli Chief Justice set out in Schedule A.” It is claimed that Kelly J. “does not measure up to that model and yet the Government knowingly nominated him pursuant to Article 13.11 of the Constitution”. [2]

(iii) That a failure by Government to assess on any basis the suitability of a nominee “may jeopardise justice” and is actionable as a breach of constitutional rights – even if the person nominated is suitable. It is similarly a breach for the Government to knowingly nominate a person who is unsuitable. It is no answer to such a claim that an unsuitable judge may subsequently be impeached under the Constitution.

(iv) That an express duty to ensure compliance with the European Convention on Human Rights is imposed on the defendants by virtue of s. 3(1) of the European Convention on Human Rights Act, 2003, and that the defendants failed to comply with the European Convention on Human Rights. [3]

(v) That as a judge of the Court of Appeal, Kelly J. was not eligible or qualified to be appointed as President of the High Court under the Courts and Court Officers Act, 1995 (as amended) (“the 1995 Act”).

(vi) That as the 1995 Act governs procedures for judicial appointments, the expected vacancy was not the subject of advertisement or consideration by the Judicial Appointments Advisory Board (“JAAB”), and no list of names was submitted to Government, the nomination of Kelly J. was premature and contrary to the provisions of the 1995 Act.

(vii) That although the Government may nominate a sitting judge whose name has not been listed by the JAAB, the decision to nominate an unlisted person can only be valid after the Government has duly considered the listed persons and has decided to appoint none of these and that a JAAB recommendation can only be rejected if there is evidence that the persons selected are not suitable for office or not the best candidates on merit.

(viii) That the decision to nominate is a statutory decision which must be reasonably exercised only after due diligence and after JAAB “peer review”, and the Government decision failed to meet the standard of reasonableness required in judicial review.

(ix) That the Government unlawfully delegated the performance of its duty to the Attorney General or the Minister for Justice and Equality.

(x) That the intention to decide to nominate Kelly J. was announced publicly a week before the decision to nominate him was made.

(xi) That Kelly J. was not a suitable candidate for nomination as President of the High Court, or alternatively, if the facts as to suitability were not known to the Government, then the Government erred in its discretion to nominate him. In relation to this allegation, the plaintiff details eight matters which he alleges rendered the nomination unsuitable. The plaintiff adds to this the five further matters pleaded at para.s 16-19 in his Statement of Claim, and relied upon further alleged “Practices” set out in para. 19.

(xii) At para. 15 the plaintiff claims exemplary damages arising out of the claimed commencement of the injunction hearing before Baker J. and its resumption and conclusion before Gilligan J., and pleads that any application to strike out his claim as unstatable or vexatious would be an abuse of the process and deny him his constitutional right to access to the courts.

(xiii) At para. 20 of the Statement of Claim, the plaintiff refers to the “Judges Association” [4], and asserts that it has failed to adopt “the relevant sections...

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