Elkhabir v Medical Council
| Jurisdiction | Ireland |
| Judge | Ms. Justice Baker |
| Judgment Date | 12 February 2016 |
| Neutral Citation | [2016] IEHC 93 |
| Docket Number | [2015 No. 250 J.R.] |
| Court | High Court |
| Date | 12 February 2016 |
[2016] IEHC 93
[2015 No. 250 J.R.]
THE HIGH COURT
JUDICIAL REVIEW
Employment – Removal from services – Leave to seek judicial review – Jurisdiction of Courts hearing substantive review – Limitation on jurisdiction
Facts: Following the grant of liberty by the High Court to seek an order of certiorari against the decision of the respondent for removing the applicant from the Register of Medical Practitioners in Ireland, on an ex-parte application filed by the applicant, the respondent now sought an order for striking out the judicial review proceedings on the ground that the applicant had failed to comply with an undertaking given at the leave stage by the counsel of the applicant on the applicant's behalf. The respondent contended that since the grant of leave was subject to the fulfilment of a condition by the applicant to provide a personal affidavit verifying the facts contained in the statement of grounds, the said proceedings should be struck out.
Ms. Justice Baker granted an order for striking out the application for judicial review. The Court held that the judicial review was a discretionary remedy and the Court ought not to exercise such discretion where the grant of leave was made a condition precedent. The Court found that the applicant had not provided any evidence to show that there existed any basis upon which relief could be granted to the applicant. The Court opined that an order for grant of leave defined the jurisdiction of the Court where the hearing for grant of substantive review was going to be heard.
On 19th September, 2015, the Medical Council made the determination that the applicant be removed from the Register of Medical Practitioners in Ireland.
On 27th April, 2015 Noonan J. granted liberty to seek an order of certiorari with regard to that decisions, and a declaration that the procedure followed by the respondent in conducting the inquiry which lead to its decision was in breach of fair procedures and natural and constitutional justice.
The decision to remove the applicant from the Register and publication of the decision has been stayed pending the determination of the judicial review.
The application for leave to bring judicial review was grounded on the affidavit of the solicitor for the applicant Catherine Martin sworn on 6th May, 2015. Ms. Martin did not represent Dr. Elkhabir at any of the hearings before the Fitness to Practice Committee of the respondent.
This judgment is given in the application of the respondent to strike out the proceedings on the grounds that the applicant has failed to comply with an undertaking given at leave stage by counsel on his behalf, and with his authority, to provide an affidavit verifying the facts contained in the statement to ground the application.
Ms. Martin swore a supplemental affidavit on the 3rd February, 2016 for the purpose of explaining why her client had failed to comply with the undertaking given on his behalf at the ex parte application at which leave was granted. She advises that the applicant, who is of Sudanese birth but who is a citizen of Ireland, is currently not within the jurisdiction and she then goes on to say as follows:-
‘The applicant has indicated to me previously that he has religious difficulties with some of the terms indicated in the affidavit. In this regard there is correspondence passing between the applicant and myself, however privilege attaches to such correspondence and I have therefore not exhibited this correspondence herein. I say and believe that had he sworn the grounding affidavit it would have been on similar terms to the verifying affidavit sworn by the Deponent herein.’
The respondent in the notice of opposition has expressly pleaded by way of preliminary objection that the applicant had failed to comply with O. 84, r. 20(2) of the Rules of the Superior Courts, and in which was reserved the right of the applicant to seek to have the proceedings struck out on account of that failure.
The order granting leave to bring judicial review was expressly made on foot of an undertaking given on behalf of the applicant that he would personally swear an affidavit for purposes of the full hearing. Counsel agree that, while the giving of the undertaking is not noted in the written order reflecting the decision of Noonan J., that the undertaking was expressly given on behalf of the applicant, and that leave was granted subject to the personal affidavit of the applicant being before the court at the substantive hearing.
The two stage procedure required under the Rules of the Superior Courts for bringing an application for judicial review requires that, at the leave or ex parte stage, that the applicant satisfies the High Court that he has a stateable case. The court may on such application grant leave subject to conditions or compliance with its directions or orders. Such power to grant leave subject to conditions arises from the fact that judicial review is a discretionary remedy, and the granting of leave subject to conditions is one way in which the court may engage the full extent of its discretion.
I consider the requirement imposed by Noonan J. to be a condition precedent to the applicant being entitled to proceed to seek substantive relief at a full hearing, and that, as leave was granted subject to the conditions imposed as a result of that undertaking, the order granting leave to bring judicial review must be regarded as containing an order that a personal affidavit of the applicant be sworn.
Further, while there is no absolute rule that an application for judicial review may not be grounded on an affidavit of a solicitor, the requirement in the Rules is that the statement of grounds be supported by an affidavit which verifies the fact on which the review is sought.
In Probets v. Glackin [1993] 3 I.R. 134, the Supreme Court regarded it as unsatisfactory that the...
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...judicial review proceedings must normally swear the grounding affidavit himself (see analysis by Baker J. in Elkhabir v. Medical Council [2016] IEHC 93 (Unreported, High Court, 12th February, 2016)), including the following which appear relevant in the present context: (i) that is what O. 8......
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...judicial review proceedings must normally swear the grounding affidavit himself (see analysis by Baker J. in Elkhabir v. Medical Council [2016] IEHC 93 (Unreported, High Court, 12th February, 2016)), including the following which appear relevant in the present context: (i) that is what O. 8......