Elsharkawy v The Minister for Transport

• Jurisdiction: Ireland
• Judge: Mr. Justice Barry O'Donnell
• Judgment Date: 01 December 2023
• Neutral Citation: [2023] IEHC 672
• Court: High Court
• Docket Number: [2021 No. 1079 JR]

Between

Osama Elsharkawy

Applicant

and

The Minister for Transport

Respondent

[2023] IEHC 672

[2021 No. 1079 JR]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT ofMr. Justice Barry O'Donnelldelivered on the 1 ^st day of December 2023.

INTRODUCTION

1 . This judgment is in respect of a motion which was brought by the applicant by way of notice of motion dated 15 March 2023. The applicant seeks an order for inspection of a series of documents that contain legal advice received by the respondent, and which has been referred to in, inter alia, a replying affidavit sworn by or on behalf of the respondent in these proceedings. The documents prima facie are accepted to attract a valid claim of privilege, and the central question for the court is whether that privilege has been waived on the basis that the respondent has deployed the legal advice for the purpose of defending these proceedings.

2 . The proceedings were commenced when this court granted leave to apply for judicial review on 21 December 2021. The substantive relief and the reasons why that relief is sought are set out in an amended statement of grounds which is dated 31 May 2022. For the purposes of this application the court does not need to resolve the underlying dispute. It is however necessary to describe the underlying proceedings briefly in order to contextualise this application.

3 . The proceedings canvass a broad array of issues and reliefs, and the amended statement of grounds is very extensive having regard to the relatively straightforward circumstances that gave rise to the claim.

4 . By way of a very brief summary, in 2014 the Oireachtas amended the law in relation to the threshold number of penalty points that could be accumulated before a mandatory disqualification applied. The main provisions are found in section 3 of the Road Traffic Act 2002 (“the RTA 2002”), and the amendments were introduced by section 8 of the Road Traffic Act 2014 (“the RTA 2014”). Prior to the commencement in August 2014 of the relevant amendments, the threshold was 12 penalty points and that threshold applied to all categories of drivers. The 2014 amendments brought about a change to the threshold in respect of drivers who held a learner's permit/provisional licence and the new category of novice drivers. In the case of learners and novices, a new threshold was introduced of 7 penalty points before a mandatory six month disqualification applied. This case arises from the treatment of learner drivers who already had accumulated points prior to the introduction of the amended threshold and how the State understood and implemented the legislation.

THE PLEADINGS

5 . The applicant and his solicitor have sworn affidavits both for the purposes of the underlying proceedings and this application. Affidavits were sworn on behalf of the respondent by a senior official, Mr. Hattaway.

6 . The applicant claims that in or about the second week of October 2021 he received a fixed penalty notice relating to the offence of driving a mechanically propelled vehicle unaccompanied by a qualified driver on 28 September 2021. At that point in time, the applicant held a provisional driving licence. The applicant decided to accept responsibility in respect of the offence and proceeded to pay the notice in accordance with the terms required. On 19 October 2021, after receiving the notice but before paying the fine, the applicant was issued a full driving licence. The applicant claims that when he decided to pay the fixed charge notice he believed that the threshold for disqualification for him was 12 points, and therefore his driver's licence would remain valid. He did not believe that he would be disqualified from driving as a result of paying the fixed charge notice. However, on 1 November 2021 the applicant was written to by the Road Safety Authority (“the RSA”) and informed that a six-month disqualification would be imposed, commencing on 29 November, 2021. This was said to be pursuant to section 3 of the Road Traffic Act, 2002, as amended by section 8(c) of the Road Traffic Act, 2014.

7 . According to the applicant, and this does not appear to be disputed, the change in legislation brought about by section 8 of the Road Traffic Act, 2014 (which commenced on 1 August 2014) was interpreted and applied by the respondent as meaning that the new threshold of 7 points would only apply to people who entered the driving licence system on or after 1 August 2014 and who did not have a learner permit or driving licence before 1 August 2014. On 14 May 2021 the respondent published a press release setting out that the respondent was revising its approach to the interpretation of section 8 of the 2014 Act. From that point on, the 7-point threshold would be applied to persons who had learner permits prior to 1 August 2014 and to persons deemed to be novice drivers prior to 1 August 2014. The applicant describes the consequent situation from his point of view in paras. xvii and xviii of grounds (e) of the statement of grounds as follows:

“xvii. The above has resulted in the respondent in May 2021, nearly 7 years after the commencement of the Road Traffic Act 2014, seeking to change how the law applies to persons who held a learner permit prior to the introduction of the 2014 Act, whereby this class of person, the Applicant being one, are now subject to disqualification when 7 penalty points are endorsed on their licence as opposed to 12 penalty points, which latter threshold the respondent represented the state of the law to be since the commencement of the Road Traffic Act 2014 in August of 2014.

xviii. The applicant now finds himself in a position where, unless this Honourable Court intervenes, he will be disqualified from driving on 29 ^th November 2021 for a period of 6 months on foot of the respondent reinterpreting the Road Traffic Act 2014, which has resulted in the Road Safety Authority applying the statutory regime in accordance with this new interpretation by the respondent, notwithstanding the fact that neither the Road Safety Authority or the respondent has provided any legal basis for doing so.”

8 . If this case merely was concerned with the proper interpretation and application of the amendments made through section 8 of the RTA 2014, the issues would be relatively simple, and it would not be necessary to consider an application of the type before the court. Ultimately, the court would determine the proper interpretation of the legislation, and, at the level of principle, the interpretation adopted by any other party will be immaterial. However, the applicant goes further than contesting the interpretation adopted by the respondent. Having set out the factual basis for the application for judicial review, from paras. xxiii through to xlv of the amended statement of grounds, the applicant sets out a number of legal grounds on which he contends the decision ought to be impugned and set aside by the court. At the risk of doing an injustice to the extent of the arguments deployed by the applicant, the essence of his case seems to be that if the respondent decides to change the manner in which they interpret and apply a piece of legislation – regardless of its ultimate proper interpretation by the courts – there is a need to provide reasons for the change in position and a need to take into account certain relevant considerations, including the likely impact on the rights and interests of persons who were likely to be affected. In the premises, the applicant seeks to argue, inter alia, that the approach adopted by the respondent was “ manifestly unfair, discriminatory, retrospective, disproportionate and unlawful in all of the circumstances.” (amended statement of grounds, section (e) (xxvi)). As noted above, the court at this point is not concerned with whether these arguments are likely to succeed. The applicant has obtained leave to apply for the relief sought, having reached the relevant threshold for such leave; and the respondent has not sought to have the grant of leave, or any element of the claim, set aside.

9 . In the affidavits grounding the proceedings the applicant exhibited two documents. First, there is a press release, entitled “Statement on the Penalty Point Threshold for Learner and Novice Driver Licences”, that was published by the respondent on 14 May 2021. The press release states that the Department of Transport “ has today written to a number of Learner and Novice Drivers to inform them of a legal clarification on the penalty point disqualification threshold for these licence types.” The notice refers to the introduction of the new legislation on 1 August 2014 and then goes on to note that “ the interpretation by the Department, based on legal advice received at the time, was that this new threshold shouldbe applied only to people who entered the driver licencing system on or after that date. Those learner drivers already in the system before the new legislation was introduced on 1st August 2014 should continue to be subject to the standard 12 points disqualification threshold”. The notice states that, “ As a result of further, revised, legal advice, the Department is now applying the 7-point threshold to people who were in the system before that date…” The notice then sets out the basis upon which the 7 point threshold will be applied.

10 . In addition, in an affidavit sworn by the solicitor on behalf of the applicant on 13 December 2021, he exhibits an email dated 23 November 2021 from the Road Safety Authority, which responded to correspondence on behalf of the applicant. The material portion of that email for the purposes of this application is as follows:-

“In August 2014, new legislation was introduced that set the disqualification threshold for novices and learners to seven points as opposed to 12 points for driving licence holders. When the rules were introduced, the Department of...