Cafferky v Kelly

JudgeMr. Justice Richard Humphreys
Judgment Date18 March 2016
Neutral Citation[2016] IEHC 153
Docket Number[2015 No. 649 J.R.]
CourtHigh Court
Date18 March 2016



[2016] IEHC 153

[2015 No. 649 J.R.]



Practice & Procedures – O. 84, r. 27 (2) of the Rules of the Superior Courts 1986 – Administration of justice – Judicial functions – Proceedings within chamber – Fair procedures – Delivery of judgment in an open court

Facts: The applicant sought an order of certiorari for quashing the order of the District Judge refusing the application of the applicant to institute criminal proceedings against the respondent. The applicant contended that the issue of summons in the said application was not dealt with in an open court and that no formal order was drawn up in that regard. The respondent contended that the applicant having lost the earlier proceedings in the Supreme Court, which were instituted merely to harass the respondent owing to a trivial issue of removal of a fence standing between the lands of the applicant and the respondent, the application before the District Court was bound to fail, in any case.

Mr. Justice Richard Humphreys granted an order to the concerned District Court Clerk to prepare a record of the impugned order and also an order of certiorari for quashing the said order. The Court held that notwithstanding the conduct of the applicant being a serial litigant, and his application being devoid of merits, the District Judge was bound to exercise the judicial functions in an open court in consonance with the requirement of fair procedures as mandated by the Constitution of the State. The Court found that in the absence of a clear statutory exception, it would be implausible to conduct the hearing in the chambers as done by the District Judge in the present case.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 18th day of March, 2016

At some point prior to October, 2004 (and perhaps some years before, according to a report in the Roscommon Champion exhibited by the applicant) a dispute arose between the applicant and a Ms. Margaret Creaton and her son as to the adequacy of, or possibly the removal of, a fence standing between their respective lands at Driney, Loughglynn, Co. Roscommon. Whether because of that dispute or not, the applicant then took objection to an intoxicating liquor licence at Creaton's Bar, Loughglynn, held by Ms. Creaton.


That licence was renewed by Judge Geoffrey Browne on 28th October, 2004 sitting at Ballaghaderreen District Court, despite objection from the applicant.


The renewal of the intoxicating liquor licence arose again on 28th September, 2006. On that occasion, the applicant appears to have launched an objection that inaccurate evidence had been given in the 2004 application. His objection was not upheld.


The 2006 renewal gave rise to an appeal to His Honour Judge Anthony Kennedy in the Circuit Court, which affirmed the renewal. Judge Kennedy's decision was then the subject of judicial review application in 2007 by the applicant. Leave was granted by the High Court (Peart J.) on the apparent basis that leave would be given to challenge the District Court order but not the Circuit Court order affirming it (on this aspect, Murray J. on appeal appears to have had a contrasting view as to which order was the appropriate one to challenge ( Cafferky v. Kennedy, unreported, Supreme Court, ex tempore, 9th March, 2015, at para. 2)) and the proceedings were then defended by Ms. Creaton.


On 18th May, 2007, the respondent swore an affidavit in those proceedings to clarify that Ms. Creaton's evidence in 2004 was not, in fact, inaccurate.


The applicant's 2007 judicial review proceedings were dismissed by the High Court (MacMenamin J.) on 30th October, 2008, and Supreme Court (Murray J. for the court) on 9th March, 2015.


Following the failure of his Supreme Court appeal, the applicant continued to assert dissatisfaction with the correctness of the affidavit sworn by the respondent in the 2007 proceedings. This dissatisfaction gave rise to an application to Judge Kevin Kilraine made at Carrick-on-Shannon District Court on the 17th November, 2015 to issue a summons in relation to proposed criminal proceedings which the applicant sought to institute as a common informer against the respondent alleging that the affidavit of 18th May, 2007 was inaccurate.


The applicant says that having sought to make this application, he was led to the judge's chambers on 17th November 2015, was handed a bible, and was asked to...

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