Donegal County Council v Quinn

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Conleth Bradley
• Judgment Date: 01 March 2024
• Neutral Citation: [2024] IEHC 160
• Docket Number: Record No. 2022/586SS

Between:

Donegal County Council

Prosecutor

and

Conor Quinn

Accused

[2024] IEHC 160

Record No. 2022/586SS

THE HIGH COURT

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 1 ^st day of March 2024

INTRODUCTION

Preliminary

1 This is a consultative case stated dated 2 ^nd March 2022 from Judge Sandra Murphy in Donegal District Court which raises a single issue:

“ Does section 1 of the Courts (No. 3) Act, 1986 as amended by S.49 of the Civil Liability and Courts Act 2004 authorise the issue of a summons on the application of “V.P. McMullin” being a firm of solicitors and an unincorporated body of persons?”

Facts

2 The following are the facts as found by Judge Murphy: 1

• (i) A summons on 8 ^th June 2018, alleging the offence that the Accused, being a person on whom an enforcement notice dated 30 ^th November 2017 was served by the Prosecutor in accordance with the Planning and Development Act 2000 relating to an unauthorised development (as detailed in the Second Schedule of the said notice) at Croagh, Dunkineely within the Donegal Court Area and District did not, within the period specified in the said notice, take the steps required to be

  taken contrary to the form of sections 154(8) and 156 of the said Act.

• (ii) The summons records that the application for its issue was made by “ V.P. McMullin, Solicitors on behalf of the above-named Prosecutor.”

• (iii) At the hearing before Donegal District Court on 26 ^th July 2021, the summons was opened and an application was made on behalf of the Accused for a ruling as to the validity of the summons on the basis that it specified the name of the person who applied for the issue of the summons as “ V.P. McMullin.” The District Judge adjourned the hearing and directed the exchange of written legal submissions on the issue raised on behalf of the Accused.

• (iv) It was submitted on behalf of the Accused that V.P. McMullin is not a legal person being an unincorporated body of persons and that section 1 of the Courts (No. 3) Act 1986, as amended by section 49 of the Civil Liability and Courts Act 2004, requires application for a summons to be made by a person with legal capacity.

• (v) The Prosecutor accepted the fact that the application for the summons was made by V.P. McMullin Solicitors on behalf of the Prosecutor and that V.P. McMullin is a firm of solicitors and, as such, an unincorporated body of persons, but submitted that section 18(c) of the Interpretation Act 2005 defines ‘person’ to include an unincorporated body of persons.

• (vi) In response, the Accused submitted that an unincorporated body of persons does not come within the meaning of the word “ person” in section 1 of the Courts (No. 3) Act 1986.

• (vii) On 13 ^th December 2021, Judge Murphy decided to state a case by way of consultative case stated to this court, pursuant to section 52 of the Courts (Supplemental Provisions) Act 1961 and was satisfied that the agreement of the facts as to the form of the summons and the status of V.P. McMullin provided a sufficient evidential platform for the consultative case stated.

• (viii) On 2 ^nd March 2022, Judge Murphy approved the draft case stated and the question to be asked, as set out in paragraph 1 above.

Positions of the parties

3 In summary, the central argument on behalf the Accused, Mr. Quinn, by his counsel Mr. Peter Bland SC (with Mr. Keith O'Grady BL), is that “ V.P. McMullin” is the business name (a ‘brand of convenience’) of a firm of solicitors or the style and title of a solicitor's practice. It is submitted that “ V.P. McMullin” does not describe a natural or legal person and is not a ‘person’ within the meaning of section 1 of the Courts (No. 3) Act 1986 (as amended). It is contended by Mr. Bland SC that a person who applies for a summons pursuant to the Courts (No. 3) Act 1986 (as amended) is to be construed as a person with legal personhood, such as a natural person or an artificial legal person and this necessarily excludes a brand name or an unincorporated body of persons under which a group of solicitors practice, such as “ V.P. McMullin” in this case.

4 Again, by way of synopsis, Mr. Richard Lyons SC (with Mr. Ivan Toner BL), for Donegal County Council, points out, in response, that the central purpose and objective of the Courts (No. 3) Act 1986 was to provide for the issuing of a summons as a matter of administrative procedure in the aftermath of the decision of the Supreme Court in The State (Clarke) v Roche [1986] I.R. 619. Further, they say that the amendment to section 1(4) of the Courts (No. 3) Act 1986 by section 49 of the Civil Liability and Courts Act, 2004 (now section 1(3) of the Courts (No. 3) Act 1986 and the provision which deals with the application for the issuing of a summons) is substantially the same. Therefore, Mr. Lyons SC contends that the decision of Morris J. (as he then was) in joint cases Kelly v The Foyle Fisheries Commission & District Judge Liam McMenamin and Ivers v The Northern Regional Fisheries Board & District Judge Liam McMenamin (Unreported, (Morris J.), 24 ^th April 1995), which involved the same firm as in this case (although spelt differently — V.P. McMullen & Son, Solicitors), remains applicable. He submits that Morris J. decided in Kelly v The Foyle Fisheries Commission & Anor. that V.P. McMullen & Son, Solicitors were authorised to make an application for the issue of a summons and since the same authorisation exists after the 2004 amendment, the finding of Morris J. in that regard has not been displaced.

THE APPLICABLE LEGAL TEST

5 Generally, (paraphrasing Murray J. in FOIE CLG v The Legal Aid Board & Ors [2023] IECA 19, quoted below), the starting point in the construction of a statute is the language or words used in the provision under consideration, having regard to the relationship of the provision in question to the legislation as a whole, the legal context in which it was enacted, and the connection between the language and words being considered, the whole Act and the context, purpose and objective of the legislation in question.

6 Specifically, section 4(1) of the Interpretation Act 2005 (“the 2005 Act”) provides that a provision of the 2005 Act applies to an enactment, except insofar as the contrary intention appears in the 2005 Act, in the enactment itself or, where relevant, in the Act under which the enactment is made. Section 4(2) provides that the provisions of the 2005 Act which relate to other Acts also apply to the 2005 Act, unless the contrary intention appears in the 2005 Act.

7 Section 18(c) of the 2005 Act states that the word “ person” shall be read as importing a body corporate (whether a corporation aggregate or a corporation sole) and an unincorporated body of persons, as well as an individual, and the subsequent use of any pronoun in place of a further use of “ person” shall be read accordingly.

8 In FOIE 2 CLG v The Legal Aid Board & Ors [2023] IECA 19, 3 the Court of Appeal (Murray J.) affirmed the decision of this court (Hyland J.) in

FOIE CLG v The Legal Aid Board & Ors [2020] IEHC 454 and rejected the claim on behalf of FOIE CLG that it was a ‘person’ for the purposes of those provisions of the Civil Aid Act 1995 which addressed the eligibility to apply for, and obtain, legal aid from the Legal Aid Board. Both the High Court and Court of Appeal concluded that on its proper construction, the 1995 Act allowed the provision of legal aid and advice only to individuals and not to bodies corporate

9 In approaching the question posed in the consultative case stated in this case by Judge Murphy, the test to be applied, therefore, is that set out by Hyland J. in FOIE CLG v The Legal Aid Board & Ors [2020] IEHC 454 and affirmed by the Court of Appeal (Murray J.) in FOIE CLG v The Legal Aid Board [2023] IECA 19 at paragraph 40 as follows:

“ The starting point in the construction of a statute is the language used in the provision under consideration, but the words used in the provision must still be construed having regard to the relationship of the section to the statute as a whole, the place of the statute in the legal context in which it was enacted, and the connection between those words, the whole Act, that context, and the discernible objective of the statute. Those provisions of the 2005 Act governed by s. 4(1) have an important role in the ascertainment of the imputed legislative intent to which the process of statutory interpretation is directed, but they do not subordinate the generally applicable principles, in particular the requirement that the court ascertain the meaning of each section by reference to its language, place, function and context.”

10 The starting point in this case, therefore, is that it is to be initially assumed that “ V.P. McMullin” is an incorporated body and thus ‘a person’ within the meaning of section 18(c) of the Interpretation Act 2005. 4 The question which I have to address is whether that assumption has been displaced, i.e., whether the contrary intention is shown by the provisions of the Courts (No. 3) Act 1986 (as amended) in the application of section 4(1) of the Interpretation Act 2005.

11 In considering whether a contrary intention appears, I am not confined to any one particular section but can consider the substance and tenor of the Courts (No. 3) Act 1986 (as amended) and the fact that section 1 is the primary section in what is a short, but important, piece of legislation comprising only two sections: see the observations in Blue Metal Industries Ltd & Anor v RW Dilley & Anor [1970] AC 827 per Lord Morris at p. 846 referred

to by the Court of Appeal 5 FOIE CLG v The Legal Aid Board [2023] IECA 19 per Murray J. at paragraphs 31, 38 and 40

APPLICATION OF THE LEGAL TEST

12 In applying the tests set out in the Superior Court judgments of Hyland J. and Murray J. respectively in FOIE CLG v The Legal Aid Board & Ors, it...