O'Connor v Judge James O'Donohoe
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 21 December 2017 |
| Neutral Citation | [2017] IEHC 830 |
| Docket Number | [2016 No. 362 J.R.] |
| Court | High Court |
| Date | 21 December 2017 |
AND
AND
[2017] IEHC 830
Faherty J.
[2016 No. 362 J.R.]
THE HIGH COURT
Land & Conveyancing – Practice & procedure – Mala fide – Unfair proceedings – Judicial review – Order of certiorari – Excessive judicial intervention
Facts: The applicants also sought an order of certiorari for quashing the decision of the first respondent. Initially, the land dispute was brought before the Circuit Court where the Court had given the decision in favour of the second respondent and subsequently the applicants sought judicial review of the decision of the first respondent on the ground that the first respondent had acted mala fide towards the applicants and acted without jurisdiction. The applicants contended that the first respondent was biased and excessively interrupted counsel during legal submission and failed to give rationale for his decision. The first respondent contended that the applicants' claims against the first respondent were misconceived and without any factual and legal basis. The first respondent also contended that the applicants could have sought relief by way of an appeal instead of judicial review. The second respondent contended that the decision of the first respondent was based on the evidence adduced by the second respondent, which was clear, cogent and convincing.
Ms. Justice Faherty granted the reliefs sought by the applicants. The Court found that the level of judicial intervention exercised by the first respondent was excessive. The Court referred the dictum of Denham J. in the case of Stefan v. Minister for Justice, Equality and Law Reform [2001] 4 I.R. 203 to the effect that the relief could not be obtained by way of an appeal in unfair hearing. The Court, however, observed that there was no evidential basis that the first respondent had acted either in a mala fide or biased manner.
By order of the High Court (Humphreys J.) dated 30th May, 2016, the applicants were granted leave to seek by way of an application for judicial review:
(i) An order of certiorari quashing the decision of the second respondent made on 11th March, 2016 in proceedings entitled Patrick Cronly v. Peter O'Connor and Laurence Deltour O'Connor, (hereafter ‘the Circuit Court proceedings’), being proceedings bearing Record No. EQ 035/2013 and which commenced in the Eastern Circuit County of Kildare;
(ii) An order directing that the first respondent would have no further role in the said proceedings.
The second respondent in the within proceedings was the plaintiff in the Circuit Court proceedings and the applicants were the defendants.
The background to the Circuit Court proceedings, which gave rise to the first named respondent's decision, concern a dispute relating to four parcels of land, two of which are registered to the second respondent and two to the applicants. All four parcels of land were previously in the ownership of a Mr. William Scally and his wife from 1979 to 2003. The Scallys held the lands in two registered parcels. For the purposes of the within application, the Court was given a sketch on which the four parcels of land are marked A, B, C and D. In 2003, parcel B was sold to the second respondent for turf cutting and registered in his name in a new folio. In 2004, parcel D was sold to the second respondent and a new folio was opened. This resulted in there being four folios (Plots A, B, C and D). Post 2004, the lands depicted as A and C on the sketch provided to the Court remained in the ownership of the Scallys. In 2004, the second respondent fenced off the lands marked D, which he had acquired, and also a portion of land from parcel C. He filled in a section of drain and then constructed a roadway/laneway on plot D to connect plot B (which he had purchased in 2003) with the public road onto which plot D (the laneway) fronted. This laneway was fenced off and paved.
In 2010, plots A and C were sold to the applicants by the estate of William Scally.
In 2011, the applicants learned that in or about 26 metres of the second respondent's laneway (plot D) was registered as part of their lands. The applicants requested the second respondent to discontinue his use of the lands registered in their name. The second respondent refused. The applicants then removed fencing which had been erected by the second respondent. In 2013, the second respondent commenced the Circuit Court proceedings seeking to have the instrument of transfer relating to his acquisition of plot D from the Scallys rectified so as to reflect the full extent of the laneway which he had constructed. The second respondent applied for and was granted an injunction allowing him to continue the use of the laneway pending the outcome of the Circuit Court proceedings.
Ultimately, the Circuit Court proceedings came on for hearing and were heard over three consecutive days on 2nd, 3rd and 4th February, 2016 by the first respondent. One of the issues in the Circuit Court proceedings related to the intention of the Scallys and the second respondent at the time of the transfer of plot D to the second respondent in 2004.
Accordingly, it fell to the first respondent to determine what was intended in the transfer of plot D by the Scallys to the second respondent. If satisfied that there was an error in the transfer instrument, it fell to the first respondent to decide what action the court might take. This was a central issue in the equity proceedings before the first respondent.
On 11th March, 2016, the first respondent gave judgment in the Circuit Court.
Consequent on the first respondent's judgment, it was declared that the applicants' predecessors in title (the Scallys) intended to sell the second respondent the strip of land (plot D) which ran from the public roadway to plot B in order to facilitate the second respondent's access to plot B, which the second respondent had purchased in 2003.
It was thus ordered by the first respondent:
‘That [the applicants] …
(i) Execute a Deed of Rectification to correct the error in the description in the Schedule and the mapping error on the map annexed to the Deed of Transfer executed on 27th February, 2004 between William and Catherine Scally of the first part and the [second respondent] of the second part; OR IN THE ALTERNATIVE (ii) execute a Deed of Transfer with the [second respondent] in which the disputed part of the lane-way is transferred from Folio KE6614F [being the applicants' folio] to KE42897F (being the second respondent's folio) for no consideration;
2. That [the applicants] do reinstate the said disputed strip of lane-way to the state it was in prior to September 2013, to include the reinstatement of the fencing between that lane-way and their own lands;
3. That the costs of the Action and any reserved costs be awarded to the [second respondent]’.
The within proceedings arise from the manner in which the applicants allege the first respondent conducted the trial of the dispute between them and the second respondent.
In summary, the applicants' amended statement of grounds (pursuant to a direction of Noonan J. on 12th December), 2016 plead that the first respondent:
(1) Acted without jurisdiction in his manner of conducting the trial of the Circuit Court proceedings;
(2) Acted with mala fides towards the applicants;
(3) Was subjectively biased;
(4) Was objectively biased;
(5) Interfered with the direct examination and cross-examination of witnesses to a grossly excessive and unjustified extent and in a partisan manner which went well beyond any interruption needed for clarification;
(6) Erred in law in postponing the hearing of the applicants' counterclaim of his own motion where there was no application to do so;
(7) Refused to hear the applicants' counterclaim and thereby caused relevant evidence to be excluded from consideration;
(8) Failed to consider relevant evidence;
(9) Improperly curtailed the cross examination of the second respondent by persistently interrupting counsel and enquiring as to when the cross examination would be finished;
(10) Unfairly made case management decisions without inviting submissions of counsel and announcing such decisions during the direct evidence of a witness;
(11) Continually interrupted counsel during legal submissions;
(12) Failed to give adequate reasons for his decision;
(13) Failed to explain why he ignored uncontradicted evidence;
(14) Failed to resolve the contradiction in his informing the second respondent that his evidence was difficult to follow and the authority opened by the applicants stating that in order to rectify an instrument the evidence should be clear, cogent and convincing;
(15) Sought to assist the second respondent by cancelling the hearing of the counterclaim in circumstances where it was listed for hearing and in directing that the second respondent obtain the services of an engineer with environmental expertise;
(16) Relied on spurious grounds to cancel the hearing of the counterclaim;
(17) Sought to denigrate the applicants' witnesses including an expert witness and improperly asking why a particular witness had not been in court the day before;
(18) Refused to break at a normal time for a lunch break during the first day of the hearing despite the second respondent having finished his direct evidence at 1pm and then breaking the second respondent's cross examination at a critical point in the afternoon when the first respondent asked the second respondent to draw a line on a map which required the assistance of the second respondent's legal representatives;
(19) Attempted to mischaracterise the second respondent's evidence on a significant point;
(20) Relentlessly drove the trial to a pre-determined conclusion; and
(21)...
To continue reading
Request your trial
-
David Dully v Athlone Town Stadium Ltd
...answer’ ( Jones v. National Coal Board [1957] 2 QB 55 at p. 65 (per Denning LJ.), and see O'Connor and anor. v. O'Donoghue and anor. [2017] IEHC 830 at paras. 76–77). The position is quite different – at least where a party is represented by professional lawyers, as the Company was – when ......
-
Nangle v Ryanair Designated Activity Company
...reasonable presentation of their cases so that it cannot be said that a fair trial was had – see for example O'Connor v Judge O'Donohoe [2017] IEHC 830. Such cases will however be very rare and as Fennelly J. suggests, 53 . Nothing remotely approaching that standard arises here. I have care......
-
Anthony Connor v DPP
...prepared to support the prosecution to the extent of filling gaps which their evidence might leave.” 10 In O'Connor v Judge O'Donoghue [2017] IEHC 830, Faherty J. quashed a decision of a Circuit Court Judge on the basis that there had been excessive interventions by the trial Judge, noting ......