Coulibaly (A Minor) and Others v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 14 February 2011
• Neutral Citation: [2011] IEHC 47
• Court: High Court
• Date: 14 February 2011

[2011] IEHC 47

THE HIGH COURT

[No. 1314JR/2010]

Coulibaly (A Minor) & Ors v Min for Justice

JUDICIAL REVIEW

MR JUSTICE COOKE

APPROVED TEXT

BETWEEN

FANE AWA KARENE COULIBALY (A MINOR ACTING BY HER FATHER AND NEXT FRIEND ALOU FANE) AND ALOU FANE

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,

RESPONDENT

BARRY v BUCKLEY 1981 IR 306

MAJORY, IN RE 1955 CH 600

LOWES v COILLTE TEORANTA UNREP HERBERT 5.3.2003 2003/32/7625

IMMIGRATION ACT 1999 S3

IMMIGRATION ACT 1999 S3(6)

OGUEKWE v MIN FOR JUSTICE UNREP FINLAY GEOGHEGAN 14.11.2006 2006/46/9827

OGUEKWE v MIN FOR JUSTICE 2008 3 IR 795

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

IMMIGRATION

Deportation

Abuse of process - Frivolous or vexatious - Reasonable prospect of success - Whether clear and compelling reason to stop proceedings - Inherent jurisdiction of High Court to dismiss claim - Judicial review - Certiorari of deportation order - Preliminary motion to dismiss proceedings Factors to be considered - Barry v Buckley [1981] IR 306; In Re Majory [1955] Ch 600; Sean Quinn Group Ltd v An Bord Pleanála [2001] 1 IR 505 and Lowes v Coillte Teo (Unrep, Herbert J, 5/3/2003) considered - Motion to dismiss refused (2010/1314JR - Cooke J - 14/2/2011) [2011] IEHC 47

Coulibaly v Minister for Justice, Equality and Law Reform

Facts Judicial review proceedings had been commenced by the second-named applicant (the applicant) in respect of a deportation order made against him. In the meantime it had to come to the attention of the State authorities that after judicial review proceedings had been commenced the applicant had left the State and made an application for asylum in another EU country. On behalf of the Minister it was contended that this conduct had shown a degree of disregard for immigration procedures in the State that the present proceedings constituted an abuse of process. A motion was therefore brought seeking to have the proceedings dismissed.

Held by Cooke J in refusing to dismiss the proceedings. The court could not conclude that the applicant's case was so unstateable as to warrant dismissal of proceedings. The court was inclined to give the applicant the benefit of the doubt that he had panicked when he had received the deportation order and had left the State. The relief sought in the motion would be refused.

Reporter: R.F.

1 1. This judicial review proceeding was commenced on 13 ^th October 2010 with a view to seeking an order of certiorari quashing a deportation order made in respect of the second named applicant (the "applicant",) on 28 ^th September 2010. The application for leave has not yet been heard but the respondent brings this motion seeking order dismissing the proceeding in its entirety pursuant to the inherent jurisdiction of the Court upon the ground that the continuation of the proceedings would constitute an abuse of process and, in alternative, upon the ground that they are frivolous, vexatious and have no reasonable prospect of success.

2 2. There is no doubt that the High Court has jurisdiction to make the type of order sought on this motion although it is a jurisdiction which is to be exercised with reticence and only in clear or compelling cases. "This jurisdiction should beexercised sparingly and only in clear cases; but it is one which enables the court to avoid injustice, particularly in cases whose outcome depends on the interpretation of a contract or agreed correspondence. If, having considered the document, the court is satisfied that the plaintiffs' case must fail, then, it would be a proper exercise of its discretion to strike out proceedings whose continued existence cannot be justified and is manifestly causing irrevocable damage to a defendant". (See the judgment of Costello J. in the context of a specific performance action: Barry v. Buckley [1981] I.R. 306 and 308).

3 3. The jurisdiction can be exercised not only in cases where it is apparent that the claim is without foundation and cannot succeed but also where the initiation of the proceedings amounts to an abuse of process because the claim made is frivolous, vexatious or brought for an improper purpose. (See, for example, Re: Majory [1955] Ch. 600 and Quinn Group Limited v. An Bord Pleanála, [2001] 1 I.R. 505).

4 4. It is equally clear that the remedy is available to a respondent in judicial review proceedings. (See the judgment of Herbert J. in Lowes v. Coillte Teo (Unreported,) 5 ^th March 2003).

5 5. The immediate circumstance which has provoked the bringing of this motion on the part of the respondent is the fact that after the judicial review application had been commenced and the Minister had been requested and had given an undertaking not to implement the deportation prior to 29 ^th November 2010 pending the listing of the application for leave, the applicant left the State and made an application for asylum in Belgium on 23 ^rd October 2010. A fingerprint search alerted the Belgian Authority to prior asylum proceeding in this country and...