Bradshaw v The County Registrar for the County of Tipperary
| Jurisdiction | Ireland |
| Judge | Mr. Justice Heslin |
| Judgment Date | 15 September 2020 |
| Neutral Citation | [2020] IEHC 471 |
| Docket Number | [Record No. 2019 / 404 JR] |
| Court | High Court |
| Date | 15 September 2020 |
[2020] IEHC 471
Heslin J.
[Record No. 2019 / 404 JR]
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – Leave – Interests of justice – Applicant seeking leave to take judicial review proceedings – Whether the applicant satisfied the test for leave
Facts: The applicant, Mr Bradshaw, sought an order of certiorari quashing the order made by the first respondent, the Tipperary County Registrar, on the 25 March 2019 in proceedings entitled George Ross v. Robert Bradshaw, Record No. 15 of 2013. The relief sought by the applicant was set out in the applicant’s ex parte docket, which was dated 24 June 2019, and in the applicant’s statement of grounds also of that date. By order made on 1 July 2019, MacGrath J granted the applicant liberty to issue and serve a motion seeking leave, returnable for the 16 July 2019. No such motion was issued and on the 16 July 2019 the requirement for a formal motion was dispensed with. Mr Finan, for the first respondent, made clear in his written and oral submission that it was not appropriate for the first respondent to have been named. Mr McCoy, for the applicant, acknowledged that it was wrong for the applicant to have named the first respondent in the proceedings. Mr Finan was not of the view that the leave and the substantive applications be heard together, something which Mr McCoy suggested on the applicant’s behalf, pointing out that it is not unusual for the court to take that attitude in certain circumstances. Ms Ahern made clear that the position of the second respondent, Mr Ross, was that the matter should be dealt with as a leave application alone.
Held by the High Court (Heslin J) that it would order the removal of the first respondent’s name, effectively without objection, the parties reserving their positions in respect of costs. It was clear to Heslin J that the applicant and the second respondent had in their affidavits engaged with the substantive reliefs sought and this was particularly clear from the very detailed written submissions filed by the second respondent and by the applicant which addressed the substantive relief, and did not merely address the question of leave. Heslin J proposed addressing both the test for leave and the application for judicial review had the test been met. He was satisfied that justice required the dismissal of the proceedings in light of the evidence before the Court. The reasons were as follows: (i) the unreliability of entirely contradictory sworn statements made by the applicant in his May 2019 and November 2019 affidavits; (ii) a lack of candour on the applicant’s part insofar as what was before the Court in July 2019 and what the applicant subsequently purported to rely upon in his November 2019 affidavit; (iii) the fact the application which the Circuit Court heard and granted on 25 March 2019 was uncontested; and (iv) the applicant’s failure to pursue more appropriate alternative remedies.
Heslin J held that the applicant neither satisfied the test for leave, nor was entitled to judicial review, had he satisfied the relevant test for leave. Heslin J held that the interests of justice required that the proceedings be dismissed.
Application refused.
By order made on 1 July 2019, MacGrath J. made an order granting the Applicant liberty to issue and serve a motion seeking leave, returnable for the 16 July 2019. No such motion was issued and on the 16 July 2019 the requirement for a formal motion was dispensed with. Mr. Finan, for the First Named Respondent, has made clear in his written and oral submission that it was not appropriate for the First Named Respondent to have been named. In fairness to Mr. McCoy, for the Applicant, he very properly acknowledges today that it was wrong for the Applicant to have named the First Respondent in these proceedings. Mr. Finan is not of the view that the leave and the substantive applications be heard together, something which Mr. McCoy suggested on the Applicant's behalf, pointing out that it is not unusual for the court to take that attitude in certain circumstances. However, and for the reasons set out in this decision, I am satisfied that it is appropriate to take that course. Mr. McCoy has made it clear that there was and is no objection to the First Named Respondent's name being removed and I am so ordering, effectively without objection, the parties reserving their positions in respect of costs.
Ms. Ahern makes clear that the Second Named Respondent's position is that the matter should be dealt with as a leave application alone. In deciding the appropriate approach to take, this Court has to be mindful of the optimum use of scarce resources and it is clear to me that the Applicant and the Second Named Respondent have in their affidavits engaged with the substantive reliefs sought and this is particularly clear from the very detailed written submissions filed by the Second Named Respondent and by the Applicant which address the substantive relief, and do not merely address the question of leave. At the outset, however, I want to make clear that in this decision, I propose to address both the test for leave and the application for judicial review had the test been met. I also want to emphasise that any comments I make in this decision as regards the substantive application itself are not to be interpreted as confirmation that the test for leave was or is met.
In the present case the Applicant seeks an order of certiorari quashing the order made by the Tipperary County Registrar on the 25 March 2019 in proceedings entitled George Ross v. Robert Bradshaw, Record No. 15 of 2013. The relief sought by the Applicant is set out in the Applicant's ex parte docket, which is dated 24 June 2019, and in the Applicant's statement of grounds also of that date.
I have carefully considered the contents of all affidavits filed in the present proceedings as well as the exhibits in this matter, namely the Applicant's affidavit dated May 2019, now I pause to observe that no specific date appears to be included in the jurat, but the affidavit is said to have been filed on the 24 June 2019. I have also carefully considered the contents of the replying affidavit of Mr. Frank Nyhan solicitor for the Second Named Respondent, which was sworn on the 10 July 2019, as well as the Applicant's affidavit sworn on the 15 November 2019 and the affidavit of Mr. Frank Nyhan sworn on the 13 February 2020. I have also considered the contents of the Second Named Respondent's statement of opposition which is dated the 11 July 2019 in response to the Applicant's statement of grounds.
Notwithstanding the removal today of the First Named Respondent from these proceedings, it is appropriate to refer also to the contents of the affidavit sworn on the 4 October 2019 by Mr. John Boyle solicitor with the Judicial Review Section of the Office of the Chief State Solicitor. Mr. Boyle exhibits a letter which is dated the 15 July 2019 which was sent by the CSSO to the Applicant and which sets out the position of what was the First Named Respondent. Among other things, that letter points to a line of Superior Court authority, including the Supreme Court's decision in O'Connor v. Carroll [1999] 2 IR 160, which makes it clear that it is not necessary or appropriate for a judge to defend or actively participate in judicial review proceedings in respect of an order made by them where no allegation of male fides or impropriety is made against them. It is submitted in the letter which Mr. Boyle exhibits that the same legal principle applies equally to orders made by County Registrars. It was made clear in that letter that there was no allegation of male fides on the part of the County Registrar and that the legitimus contradictor should be the Second Named Respondent alone. That is a submission which is properly conceded today on behalf of the Applicant as correct. However, Mr. Boyle avers on 4 October 2019 that no response was furnished by the Applicant to the CSSO's 15 July 2019 letter. The acknowledgment made today was not made prior to today, despite the First Named Respondent's submissions.
I have also considered all submissions made to the court, both on behalf of the Applicant and on behalf of the Respondents. These included detailed written submissions by the Applicant dated 10 September 2020, those submissions by the First Named Respondent dated 11 September 2020, and the Second Named Respondent's submissions of 1 September and 11 September 2020.
The decision of this Court flows from the evidence before it and, therefore, it is appropriate and necessary to set out the relevant facts which emerge from an analysis of the evidence and to do so at some length. The facts can be fairly summarised as follows:
On 10 March 2013 the Second Named Respondent, Mr. George Ross, commenced Circuit Court proceedings against the Applicant, Mr. Robert Bradshaw, under Circuit Court Record No. 00015 of 2013. The sum of €9,215.00 was claimed in the said proceedings and Mr. Ross was successful in that claim.
By order of His Honour Judge O'Sullivan, dated 4 July 2014, the Applicant in the present proceedings was ordered to pay to the Second Named Respondent in these proceedings, the sum of €9,215.00 together with costs, to be taxed in default of agreement. I have had sight of a copy of the said order which is exhibited.
The Applicant in these proceedings appealed the Circuit Court's order. On 30 November 2015, the High Court dismissed the appeal, affirming the Circuit Court's order and granting costs, both of the Circuit Court proceedings and the High Court appeal, in favour of Mr. Ross (who is...
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