Devanney v Shields

JurisdictionIreland
Judgment Date01 January 1998
Date01 January 1998
Docket Number[1997 No.
CourtSupreme Court

High Court

Supreme Court

[1997 No. 111 J.R.; S.C. No. 345 of 1997]
Devanney v. Shields
Patrick Devanney
Applicant
and
District Judge Daniel Shields, The Director of Public Prosecutions, The Minister for Justice, Ireland and The Attorney General
Respondents
Anne Cawley, Notice Party

Cases mentioned in this report:-

Carltona Ltd. v. Commissioners of Works[1943] 2 All E.R. 560.

Director of Public Prosecutions v. Clein[1983] I.L.R.M. 76.

Director of Public Prosecutions v. O'Rourke(Unreported, High Court, Finlay P., 25th July, 1983).

In re Golden Chemical Products[1976] Ch. 300; [1976] 3 W.L.R.1; [1976] 2 All E.R. 543.

Minister for Aboriginal Affairs v. Peko-Wallsend Limited(1986-1987) 162 C.L.R. 24; [1987] L.R.C. 822.

Rainey v. District Judge Delap[1988] I.R. 470; [1988] I.L.R.M. 620.

Reg. v. Home Secretary Ex-p. Oladehinde[1991] 1 A.C. 254; [1990] 3 W.L.R. 797; [1990] 3 All E.R. 393.

Tang v. Minister for Justice[1996] 2 I.L.R.M. 46.

The State (Clarke) v. Roche[1986] I.R. 619; [1987] I.L.R.M. 309.

Administrative law - Delegation of powers - Appointment of District Court clerk - Whether Minister had power to delegate appointment - Whether Carltona principle applied - Civil Service Regulation Act, 1924 (No. 5) - Ministers and Secretaries Act, 1924 (No. 16), s.15 (4) - Documentary Evidence Act, 1925 (No. 24), s.7.(2) - Court Officers Act, 1926 (No. 27), ss. 46 and 48 - Civil Service Commissioners Act, 1956 (No. 45).

District Court - Summons - Summons signed by District Court clerk - Whether District Court clerk validly appointed - Whether District Court summons valid - Courts (No. 3) Act, 1986 (No. 33), s.1.

Judicial review.

The facts have been summarised in the headnote and are fully set out in the judgment of McCracken J., infra.

The applicant was granted leave to apply for judicial review by the High Court (Kelly J.) by order dated the 21st March, 1997. A statement of opposition was filed on behalf of the second to fourth respondents on the 18th June, 1997.

Section 46 (2) of the Court Officers Act, 1926, provides as follows:-

"Subject to the provisions of this section, every district court clerk shall be appointed by the Minister and shall (unless he is a pensionable officer) hold office at the will of and may be removed by the Minister."

By virtue of s. 15 (4) of the Ministers and Secretaries Act, 1924:-

"Nothing in this Act shall render the affixing of the official seal of a Minister who is the head of a Department of State established by this Act to any order or other instrument . . . made by such Minister necessary to the validity of such order or other instrument, and any such order or other instrument, unless expressly required by any statute to be under seal, shall be sufficiently authenticated by the signature of such Minister or of the secretary or other officer of such Department of State duly authorised by such Minister to authenticate such orders and instruments."

Section 7 (2) of the Documentary Evidence, 1925, provides as follows:-

"Any such Minister as aforesaid may at any time or times authorise more than one officer of his Department of State to authenticate orders and instruments under sub-section (4) of section 15 of the [Ministers and Secretaries] Act [1924] aforesaid, and where more than one such officer is so authorised any order or instrument which can under that subsection be authenticated by the signature of such Minister shall be sufficiently authenticated by the signature of any one of the officers who are for the time being so authorised."

The application was heard by the High Court (McCracken J.) on the 19th October, 1997.

Notice of appeal was filed on the 6th November, 1997. The appeal was heard by the Supreme Court (Hamilton C.J., O'Flaherty, Denham, Barrington and Keane JJ.) on the 25th November, 1997.

The applicant was summoned to appear before the District Court by a summons signed by the notice party, issued by the District Court office on the 16th December, 1996. The applicant issued High Court proceedings seeking,inter alia, an order of prohibition restraining the first respondent from hearing and determining the summons and an order of prohibition restraining the second respondent from proceeding with the prosecution of the applicant.

On the 5th December, 1996, the District Court office recognised that the notice party had not been appointed as a District Court clerk and accordingly, on that date a personnel officer at the Department of Justice appointed the notice party to be a District Court clerk with effect from that date. The appointment was made in the name of the third respondent but there had been no prior consultation with her.

By a further document of the same date, also executed without consultation with the third respondent and signed by a civil servant in the Courts Division of the Department of Justice, the notice party was appointed a District Court clerk and assigned to certain court areas in County Mayo. The third respondent had executed an authority dated the 11th July, 1996, whereby both officials were authorised to authenticate by their signatures, orders and instruments made by her pursuant to s. 15 (4) of the Ministers and Secretaries Act, 1924 and s. 7 (2) of the Documentary Evidence Act, 1925.

The applicant submitted that the notice party had never been validly appointed as a District Court clerk on the grounds that s. 46 (2) of the Court Officers Act, 1926, required the appointment of a District Court clerk to be made personally by the third respondent and that this was not a ministerial power open to delegation. Further, it was contended for the applicant that the provisions of the Act of 1924 and the Act of 1925, under which the third respondent purported to give authority to officials did not authorise them to make decisions on the part of the third respondent, but merely to authenticate decisions which had already been made. The applicant claimed that the summons was invalid as, contrary to s.1 (2) of the Courts (No. 3) Act, 1986, it did not bear the name of the "appropriate District Court clerk".

The respondents relied upon the principle enunciated inCarltona Ltd. v. Commissioners of Public Works[1943] 2 All E.R. 560, viz,that the functions given to ministers were so multifarious that no minister could ever personally attend to them, thus the powers given to ministers could normally be exercised under the authority of the minister by responsible officials of the department, while the minister remained accountable to the legislature.

Held by the High Court (McCracken J.), in granting an order of prohibition, 1, that the decision to appoint a District Court clerk was to be made personally by the third respondent. The position of District Court clerk was an important statutory position which carried serious responsibilities in the administration of justice. In addition, District Court clerks were not only appointed by the third respondent but held office at the will of and could be removed by the third respondent.

Carltona Ltd. v. Commissioners of Works[1943] 2 All E.R. 560 andDirector of Public Prosecutions v. O'Rourke(Unreported, High Court, Finlay P., 25th July, 1983) distinguished.

Obiter dictum: If District Court clerks could be validly appointed by officials, presumably they could also be removed from office by such persons without the knowledge of or any input from the third respondent.

2. That the provisions of s. 15 (4) of the Ministers and Secretaries Act, 1924 and s. 7 (2) of the Documentary Evidence Act, 1925, could not authorise the making of the decision to appoint the notice party. By making, as opposed to authenticating the appointment, the officials had exceeded their authority.

3. That the Carltonaprinciple did not apply in this case so as to enable officials in the third respondent's department to effect an appointment under the Act of 1926. That principle originated in a case where it would have been impractical for the minister to make the decision personally. It was perfectly practical for the third respondent to personally appoint District Court clerks.

Carltona Ltd. v. Commissioners of Works[1943] 2 All E.R. 560 distinguished.

4. That the purported appointment of the notice party on the 5th December, 1996, had not been made personally by the third respondent and was therefore invalid.

Obiter dictum: While the summons issued by the notice party was invalid, it was open to the District Court office in Ballina to issue a new summons under the name of a properly appointed clerk.

On appeal by the respondents it was

Held by the Supreme Court (Hamilton C.J., O'Flaherty, Denham, Barrington and Keane JJ.), in allowing the appeal, 1, that the principle outlined in Carltonawas a common law constitutional power, but one which was capable of being negatived or confined by express statutory provision.

2. That the exercise of such constitutional power by the third respondent had not been confined or negatived in any way by the provisions of s.46 (2) of the Court Officers Act, 1926.

3. That while the appointment of a District Court clerk was an important matter, it was not more important than many of the decisions which fell to be made by civil servants, in the name of the third respondent.

Tang v. The Minister for Justice [1996] 2 I.L.R.M. 46 followed.

Per Keane J.: That the fact that civil servants are appointed to"offices" and that the formal appointment was made by the third respondent, provided no justification for the claim that the third respondent had to personally assess the suitability of the person concerned for the office.

4. That while the Carltonadoctrine was referred to as a principle, it was in fact a fundamental concept which enabled democratic government to work. The application of the Carltonaprinciple arose on statutory interpretation of a statutory power of a minister of the...

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32 cases
  • Murray v McArdle (No. 2)
    • Ireland
    • High Court
    • 1 January 2000
    ...were struck out by virtue of the High Court judgment in Devanney v. Shields,IR which was subsequently reversed by the Supreme Court [1998] 1 I.R. 230. Application was made to the District Court to obtain fresh summonses more than six months after the alleged offences and reliance was placed......
  • M.B. v Minister for Justice
    • Ireland
    • High Court
    • 6 March 2015
    ...delegation under the well-known Carltona Doctrine as the principle was accepted in Ireland by the Supreme Court in Devanney v. Shields [1998] 1 I.R. 230. Counsel also refers to the decisions in Commissioners of Customs & Excise v. Cure & Deeley Ltd [1962] 1 Q.B. 340, R. (On the application......
  • Callely v Minister for Justice & Equality and Another
    • Ireland
    • High Court
    • 21 July 2015
    ...expressly approved in this jurisdiction by the Supreme Court in Tang v. Minister for Justice [1996] 2 ILRM 46 and Devanney v. Shields [1998] 1 IR 230. In Tang, Hamilton C.J. held that a decision of a senior official in the Department of Justice to refuse residence to immigrants, who had bre......
  • North East Pylon Pressure Campaign Ltd v an Bord Plean?la
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    • High Court
    • 22 August 2017
    ...1 A.C. 254 at 282 approved by Hamilton C.J. in Tang v Minister for Justice [1996] 2 I.L.R.M. 46 and in Devanney v Minister for Justice [1998] 1 I.R. 230; [1998] 1 I.L.R.M. 81). The constitutional origins of the power derived from the executive power of the State, identified, inter alia, in ......
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1 books & journal articles
  • Carltona and the Irish Administration: Devanney v. Shields
    • Ireland
    • Trinity College Law Review No. I-1998, January 1998
    • 1 January 1998
    ...Minister. Senior Sophister Law student, Trinity College, Dublin. Caritona Ltd v. Commissioners of Public Works [1943] 2 All ER 560. 2 [1998] 1 ILRM 81, hereinafter Devanney. It is reported with the High Court judgment of McCracken J. [Vol. I 1998] The Carltona Doctrine: Devanney v. Shields ......

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