Curtis v Kenny

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 09 March 2001
• Neutral Citation: [2001] IEHC 31
• Docket Number: [2000 No. 412 J.R.]
• Court: High Court
• Date: 09 March 2001

[2001] IEHC 31

THE HIGH COURT

JUDICIAL REVIEW

No. 412 JR/2000

CURTIS v. KENNY

BETWEEN

EUGENE CURTIS

APPLICANT

AND

HIS HONOUR JUDGE HARVEY KENNY

RESPONDENT

AND

JOHN JOE HIGGINS

FIRST NOTICE PARTY

AND

PATRICK LYNCH

SECOND NOTICE PARTY

Citation:

MCILWRAITH V FAWSITT 1990 1 IR 343

O'CONNOR V CARROLL 1999 2 IR 160

R, (JOHN CONN KING) V JUSTICES OF LONDONDERRY 1912 46 ILTR 105

Synopsis:

Administrative Law

Administrative; judicial review; contempt of court; applicant imprisoned by respondent for alleged and unspecified contempt of court; applicant seeking, inter alia, certiorari of order committing him to prison and costs; whether applicant was in contempt of court; whether there was any evidence to support or legal basis for applicant's committal to prison; whether orders of respondent finding applicant in contempt of court and committing him to prison had been ultra vires and in breach of natural and constitutional justice; whether respondent's conduct of the Circuit Court proceedings disclosed such impropriety as to justify an order of costs being made against him; whether Court entitled to infer from the evidence that respondent was guilty of such impropriety as to justify an order of costs being made against him, even though leave had not been granted in this regard.

Held: Certiorari granted; costs awarded against first and second named notice parties; Court not entitled to infer from evidence that respondent had been guilty of such wrongdoing as to justify order of costs being made against him, in the absence of leave in this regard; respondent, on evidence adduced, not in fact guilty of wrongdoing of type that would justify award of costs against him.

Curtis v. Judge Kenny - High Court: Kelly J. - 09/03/2001 - [2001] 2 IR 96

The applicant issued judicial review proceedings in respect of his committal to prison. The applicant had been committed for an alleged contempt of court. Kelly J held that the applicant had not at any stage been in contempt. Orders of certiorari would issue to quash the orders in question. In an addition the applicant would be awarded his costs.

1 Mr. Justice Kelly delivered on the 9th day of March, 2001 .

INTRODUCTION

2 This application for judicial review arises out of the imprisonment of the applicant (Mr. Curtis) by the respondent (Judge Kenny) for an alleged but unspecified contempt of court. In moving the application, counsel described the circumstances in which Mr. Curtis was committed to prison as bizarre. That was no misdescription. The procedures which lead to the committal of Mr. Curtis and the committal itself represented a regrettable departure from the standards of justice and fairness which ought to have applied.

THE FACTS

3 Mr. Curtis is a former employee of the first named notice party (Mr. Higgins). He was employed by Mr. Higgins as a lorry driver. He was involved in a road traffic accident in the course of that employment. Arising out of that accident civil proceedings were commenced in the Circuit Court against both Mr. Curtis and Mr. Higgins. They were brought at the suit of Mr. Thomas Vesey. The proceedings were personally served on Mr. Curtis. He passed them on to his then employer Mr. Higgins whom he believed sent them to a solicitor. Mr. Curtis heard no more of these proceedings until the 8th of March, 2000, by which time he had left the employment of Mr. Higgins and was working for himself.

4 On the 8th of March, 2000, a brother of Mr. Higgins left messages at Mr. Curtis's home which were replied at to at 9 o'clock that evening when Mr. Curtis finished his work. He spoke by telephone to Mr. Higgins at that time. Mr. Higgins requested him to attend court the following morning because the proceedings instituted by Mr. Vesey were due for hearing. Mr. Curtis indicated that this was not convenient but after discussion there was an agreement between them for the payment of a sum of money by Mr. Higgins to Mr. Curtis in respect of his attendance at court. The sum was to be paid by a bank draft which was to be ready for Mr. Curtis on his arrival at court. On the making of this agreement Mr. Curtis made the necessary arrangements concerning work on the following day so as to enable him to attend court.

5 He arrived at Galway Circuit Court at 9.45 a.m. on the 9th of March, 2000. Mr. Higgins arrived 25 minutes later. He did not have the bank draft giving as an excuse the fact that the banks would not be open until 10.30 a.m. Mr. Curtis corrected that error. Mr. Higgins then spoke with his solicitor, returned to Mr. Curtis and said he would not pay him anything. At that stage Mr. Curtis said that he was cutting his losses and left.

6 About half an hour later, Mr. Higgins telephoned Mr. Curtis. He told him that he had to come back to court. Mr. Curtis said be would do nothing until the agreement for the payment of expenses had been honoured. A little later there was another telephone call received by Mr. Curtis from Mr. Higgins. In the course of that telephone conversation Mr. Higgins suggested that it Mr. Curtis returned to court he would look after him but Mr. Curtis did not believe this. A further phone call was received by Mr. Curtis's wife from a Mr. McDarby, a solicitor, who indicated that he wanted him to return to court. Mr. Curtis's wife indicated that he would not do so until Mr. Higgins kept his promise. A further phone call was received by Mr. Curtis's wife by a person who purported to be a police officer who said that the judge had indicated that Mr. Curtis had to be in court. Mr. Curtis's wife did not believe that this was an authentic call because the caller display on the mobile phone indicated that all of these telephone calls came from the same telephone number.

7 Subsequently, police officers made enquiries at one of Mr. Curtis's shops and his wife became aware of the fact that a warrant had been issued for him. By arrangement with the police he attended court on Thursday the 23rd of March, in the company of his wife.

8 On that day, the case was called on at 12.45 p.m. Mr. Curtis went to the witness stand and attempted to explain the position and indicated that he had no intention of being disrespectful to the court. Judge Kenny suggested that he should return in the afternoon with a solicitor, having first enquired as to whether Mr. Curtis had any children.

9 Mr. Curtis procured the services of a solicitor, a Mr. Carr. In the afternoon, evidence was taken from Mr. McDarby, solicitor. He gave evidence that a witness summons had been issued against Mr. Curtis but had not been served or, if it was, had not be correctly served. Mr. Curtis never received any witness summons. Mr. McDarby was cross-examined by Mr. Carr. At this stage it was known that the civil proceedings which had been brought against Mr. Curtis and Mr. Higgins had been settled on the 9th March, 2000. In the course of ruling the settlement counsel on behalf of Mr. Higgins had complained to the judge that he was obliged to settle the case and could not proceed with a counter-claim because of the absence of Mr. Curtis. When this was put to Mr. McDarby in cross examination he confirmed that he could not be sure that Mr. Higgins would have won his case if Mr. Curtis had been present to give evidence. At this juncture, the hearing on 23rd March was adjourned briefly to allow for the attendance of Mr. Higgins. Then a most extraordinary thing happened.

10 A Mr. O'Connor, barrister, stood up in Court and produced a cheque, apparently drawn by Mr. Curtis in favour of Mr. Lynch, a solicitor, the second named notice party. Mr. O'Connor remarked that this cheque, which was apparently dishonoured, demonstrated how honourable Mr. Curtis was. This was a cheque in respect of matters quite separate and distinct from the civil action taken at the suit of Mr. Vesey. The cheque was handed to Judge Kenny. He in turn handed it down to Mr. Curtis and enquired of Mr. Carr the solicitor as to what Mr. Curtis was going to do about it. Judge Kenny appeared to know something about the cheque before it was produced.

11 Meanwhile Mr. Higgins arrived. He gave evidence to the effect that he had offered Mr. Curtis £500.00 expenses for his attendance in court but that this was not acceptable because Mr. Curtis alleged it would not cover the expenses. The judge then indicated that Mr. Higgins had lost £17,500.00 because of the lack of evidence from Mr. Curtis. This was apparently the amount for which Mr....