O'Doherty v AG & Limerick County Council

• Jurisdiction: Ireland
• Judge: MR JUSTICE SHEEHAN
• Judgment Date: 10 June 2008
• Neutral Citation: [2008] IEHC 172
• Date: 10 June 2008
• Court: High Court
• Docket Number: Case No. 3377P/2008

[2008] IEHC 172

THE HIGH COURT

Case No. 3377P/2008

O'Doherty v AG & Limerick Co Council

PATRICK O'DOHERTY

V.

THE ATTORNEY GENERAL, LIMERICK COUNTY COUNCIL & NOTICE PARTIES

LOCAL GOVERNMENT ACT 2001 S19

CONSTITUTION ART 28.2

CONSTITUTION ART 28.5

Abstract:

Constitutional law - Electoral law - Local Government - Interlocutory injunction - Casual vacancy - Limerick County Council - Co-opting of new member - Challenge to constitutionality - Local Government Act 2001

: An interlocutory injunction was sought restraining the defendants from co-opting a new member to fill a casual vacancy arising in a County Council on foot of a resignation. The plaintiff also sought to challenge the constitutionality of s. 19 Local Government Act 2001, on account of the fact that such vacancies were required by law to be filled by way of direct elections.

Held by Sheehan J. that the grant of the injunction would deprive the residents of the area of an official. The balance of convenience lay with the defendants and the application would be refused.

Reporter: E.F.

1 BEFORE THE HONOURABLE MR JUSTICE SHEEHAN10 JUNE 2008

Counsel for the Plaintiff:

Mr P O'Doherty

Counsel for the State:

Mr Holland SC

Ms R Healy-Rae BL

Instructed by:

Counsel for Limerick County Council:

Mr C MacNamara BL

Instructed by:

Leahy & Partners Sols

Counsel for Notice Parties:

Mr B O'Donnell

Instructed by:

Frank Ward & Co. Sols

2 JUDGE: In the motion before the court the plaintiff seeks an interlocutory injunction restraining Limerick County Council and the notice party Fianna Fail from co-opting a new member to fill the casual vacancy that has arisen on foot of the resignation of Councillor John Griffin from Limerick County Council on the 31st of March 2008.

3 The interlocutory injunction is sought pending the determination of the substantive proceedings, which were commenced by way of plenary summons on the 28th of April 2008.

4 In these proceedings the plaintiff seeks to challenge the constitutionality of Section 19 of the Local Government Act 2001. In particular, he contends that the mechanism contained in Section 19 for filling casual vacancies in local authorities through co-option infringes the requirement of Article 28(2) of the constitution that all local authorities be directly elected.

5 The plaintiff/applicant Mr Patrick O'Doherty is a bona fide applicant and Irish citizen entitled to vote in the Rathkeale electoral area of Limerick. He contends there is a serious issue to be tried.

6 Article 28(2) of the constitution states: "There shall be such directly elected local authorities as may be determined by law and their powers and functions shall, subject to the provisions of this constitution, be so determined and shall be exercised and performed in accordance with law."

7 Mr O'Doherty emphasises the words "directly elected local authorities".

8 The defendants and notice party, who all strenuously oppose the application for interlocutory relief, draw the Court's attention to Article 28(5) which states that: "Casual vacancies in the membership of local authorities referred to in Section 2 of this article shall be filled in accordance with law."

9 They also argue that the Court should be slow to prevent a public body from exercising its statutory duty and that due weight must be given to the presumption of constitutionality that attaches to the Local Government Act of 2001.

10 The principles governing the granting of interlocutory injunctions are well established. The plaintiff must establish that there is a fair question to be tried, that damages would not be an adequate remedy and that the balance of convenience lies in favour of granting the injunction.

11 In considering the balance of convenience the case law indicates that in the circumstances of a case like this, not only must I bear in mind the presumption of constitutionality but also the general principle that a court should be slow to prevent a public body from exercising its statutory responsibility.

12 Bearing in mind these general principles, the point that weighs heavily with me is the effect that the granting of an injunction would have on the Rathkeale electorate. If I grant an injunction restraining the local authority from filling the casual vacancy, which has arisen, the constituents of the Rathkeale electoral area will be left without one of their representatives pending the full hearing of these proceedings. The four remaining members and their political party affiliations will not properly reflect the preferences expressed by the constituents of...