ES v Teehan
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 19 January 2017 |
| Neutral Citation | [2017] IEHC 10 |
| Court | High Court |
| Docket Number | [2016 No. 929 J.R.] |
| Date | 19 January 2017 |
[2017] IEHC 10
THE HIGH COURT
JUDICIAL REVIEW
Humphreys J.
[2016 No. 929 J.R.]
Family law – Committal and attachment order – Liberty to re-enter – Prohibition – Bias
Facts: The applicant sought an order of prohibition for restraining the respondent from conducting the family law proceedings and hearing any attachment and committal matter. The notice party had earlier filed an application for the committal of the applicant before the respondent, which was adjourned generally with the liberty to re-enter. The key issue was as to whether the learned judge could re-enter the attachment and committal matter on its own motion without there being any application by the moving party. The applicant asserted objective bias against the respondent/judge on the basis of his statement that there was an apprehension that the applicant could spend her Christmas in prison.
Mr. Justice Richard Humphreys granted a declaration to the effect that the learned judge was entitled to list the family law proceedings but not entitled to make an order of committal and attachment of the applicant unless the notice party either filed an application for liberty to re-enter the attachment and committal motion and such liberty was granted. The Court noted that a court could raise a matter or reconvene a hearing of its own motion; however, if neither party wanted to run that issue, the Court must respect the decision of the parties. The Court held that the statement of the learned judge to the effect that the applicant was at risk of spending Christmas time in prison did not reflect an objective bias as the learned judge was merely putting the applicant on notice that such a procedure was about to be triggered. The Court found that the learned judge was cautioning the applicant in advance that her liberty might be curtailed so that she could take appropriate legal steps on time. The Court directed that it was desirable that the substantive proceedings should be carried out keeping in mind the welfare of the child and not the approach taken by the parties.
The present judicial review arises from family law proceedings between the applicant and the notice party, which His Honour Judge Teehan has been dealing with on numerous occasions over a prolonged period of time and with which he is very familiar. Mr. Colman Fitzgerald S.C. for the applicant submits that the family law proceedings were not live as of mid-2016, but in a sense one cannot say that about family proceedings where there is an issue of the welfare of a child involved, which have an inherent ongoing nature as distinct from normal inter partes litigation.
Mr. S., for whom Ms. Mary O'Dwyer B.L. appears, had issued a motion for attachment and committal of the applicant, which had at an earlier point been adjourned generally with liberty to re-enter. On 28th April, 2016, the learned judge wrote to the Circuit Court office in Clonmel indicating a wish to re-enter the matter and that the parties should be notified. On 26th July, 2016, he adjourned the matter to November, 2016. I am told that Ms. S. says that she applied to have the judge recuse himself at that point.
On 3rd November, 2016, the judge heard from Mr. S. having invited him to give evidence and I am told that the learned judge said that he was not going to make his mind up in relation to attachment and committal because he had not heard from Ms. S. but that there is a risk that she could be spending Christmas in prison. This was said in the context where there was not at that time an application by Mr. S. to re-enter the attachment and committal matter. The learned judge then adjourned the matter to 9th December, 2016.
On 7th December, 2016, Ms. S. applied for leave to seek judicial review. I granted a stay at that point of a temporary nature and directed that the application be made on notice, and then ultimately that it be dealt with by way of a telescoped hearing. As of the date of the hearing before me, no order had been made against Ms. S. in terms of attachment and committal and it is not clear that there is a definite intention or anything like it on the part of the learned judge to actually make such an order but Ms. S. apprehends that there is a risk in that regard.
I gave an ex tempore decision on this application on 19th December, 2016, and I now take the opportunity to set out reasons more formally.
The applicant's statement of grounds seeks an order of prohibition restraining the further hearing by Judge Teehan of the substantive family law proceedings and in particular prohibiting him from continuing to hear any attachment and committal matter (relief d(i)). Interlocutory relief, further and other relief and a recommendation under the custody issues scheme are also sought. Mr. Fitzgerald has helpfully organised his submission under essentially three headings which, together with a preliminary objection of delay from Mr. S., I can address as follows.
The first issue is delay. Mr. S. complains that many of the matters of which complaint is made arise out of a letter of the learned judge of 28th April, 2016, and that this application should have been brought within three months of that date. While there does seem to have been delay on the part of the applicant I am reluctant in the circumstances to regard the application as being out of time on that basis. The situation has to some extent been evolving since the 28th April, 2016, and I do not consider that it would be fair to the applicant to regard her as disentitled for making a complaint on the basis that she did not act within three months of that date.
The second issue is whether the learned judge could re-enter the attachment and committal (which had been adjourned generally) by way of his own motion either (a) without an application by the notice party or (b) without advance warning and notice to Ms. S. It seems to me that the situation is analogous to that discussed by the Court of Appeal of England and Wales in Al-Medenni v. Mars UK Limited [2005] EWCA (Civil) 1041 in particular per Dyson L.J. at para. 21: ‘The judge can invite, and even encourage, the parties to recast or modify the issues. But if they refuse to do so, the judge must respect that decision.’ This is in the context of amendment but the same principle applies by analogy to other steps that are open to a party such as whether to bring, or re-enter, an application. In such a situation, the judge can invite and even encourage the parties to make a particular point but if they refuse to do so the judge must respect that decision. One consequence may be that the judge is compelled to reject a claim on the basis on which it is advanced although he or she is of the opinion that it would have succeeded if it had been advanced on a different basis. But there is nothing wrong with the court drawing the point to the parties' attention in the first place. In T.D. v. Minister for Justice Equality...
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