Fitzgerald v DPP

JurisdictionIreland
JudgeMr Justice Edwards
Judgment Date01 November 2022
Neutral Citation[2022] IECA 271
CourtCourt of Appeal (Ireland)
Docket NumberAppeal No: 59/2022
William Fitzgerald
Appellant
and
The Director of Public Prosecutions.
Respondent

[2022] IECA 271

Edwards J.

McCarthy J.

Kennedy J.

Appeal No: 59/2022

THE COURT OF APPEAL

Judicial review – Fair hearing – Error of law – Appellant appealing against the judgment and order refusing his application for leave to apply for certiorari – Whether the appellant had identified an actionable error of law

Facts: The appellant, Mr Fitzgerald, appealed to the Court of Appeal against the judgment of the High Court (Meenan J) of the 2nd of July 2021, and the order of that court made consequent thereto on the 8th of February 2022, which order was perfected on the 9th of February 2022, refusing the appellant’s application upon notice to the respondent, the Director of Public Prosecutions, for leave to apply for certiorari and other relief by way of judicial review for the purpose of quashing certain decisions and orders of the District Court Judge for the District Court Area of Fermoy and District Number 20, sitting at the courthouse, Fermoy, Co. Cork on the 22nd of February 2019. Those District Court proceedings arose from a summons issued to the appellant to attend before Mallow District Court to answer a charge that on the 4th of February 2018 at Brackbawn, Kilbehenny, Co. Limerick, a public place, within the District Court Area of Fermoy, he did drive a mechanically propelled vehicle while there was present in his body a quantity of alcohol such that, within 3 hours after so driving, the concentration of alcohol in his breath did exceed a concentration of 22 microgrammes of alcohol per 100 millilitres of breath, to wit 40 microgrammes of alcohol per 100 millilitres of breath, contrary to s. 4(4)(a) and (5) of the Road Traffic Act 2010. The respondent pleaded, effectively as a preliminary objection, that the appellant prosecuted an appeal against the District Court conviction that formed the subject matter of the judicial review proceedings and that that appeal had been determined. The appellant alleged that the High Court judge failed to afford the appellant a fair hearing, to take account of all of the evidence and to address the core element of the appellant’s submissions. The respondent contended that the appellant had failed to identify an actionable error of law and was seeking reliefs that were not reliefs sought in the High Court and as such were not within the jurisdiction of the Court of Appeal to grant.

Held by the Court that whilst the respondent had legitimately made the point that a right of appeal existed and was taken but not pursued, and in some circumstances those facts or either of them could be a bar to the grant of certiorari, this was not such a case. The Court held that the High Court judge afforded the appellant a fair hearing. It was the Court of Appeal’s view that even if the appellant had been able to raise a doubt in respect of the claim that his eyes could be said to have been glazed, there was abundant other (unchallenged) evidence to support Garda Delea’s claim that he had formed a suspicion on reasonable grounds that the appellant had consumed intoxicating liquor sufficient to have required him to blow into the breath screening apparatus. The Court held that there was nothing claimed with respect to an alleged on-board camera of any relevance to the appellant’s claim to be entitled to leave to apply for judicial review, and there was nothing in that respect to which the High Court judge needed to have regard. The Court of Appeal did not consider than an error based on a failure to consider the core elements of the appellant’s submissions had been demonstrated. The Court thought the High Court judge was right to refuse the appellant leave to apply for judicial review in the circumstances of the case. The Court of Appeal held that the respondent was correct that the appellant had failed to identify an actionable error of law; it was also the case that he has attempted to seek reliefs that were not reliefs sought in the High Court and as such were not within the jurisdiction of the Court of Appeal to grant.

The Court held that the appeal, including the appeal against the costs order, must be dismissed. The Court’s indicative order as to costs was that the appellant should be ordered to pay the costs of the respondent incurred in connection with the appeal.

Appeal dismissed.

JUDGMENT of the Court delivered by Mr Justice Edwards on the 1st November, 2022 .

Introduction
1

. This is an appeal against the judgment of the High Court (Meenan J) of the 2nd of July 2021, and the Order of that court made consequent thereto on the 8th of February 2022, which Order was perfected on the 9th of February 2022, refusing the appellant's application upon notice to the respondent for leave to apply for certiorari and other relief by way of judicial review for the purpose of quashing certain decisions and orders of the District Court Judge for the District Court Area of Fermoy and District Number 20, sitting at the courthouse, Fermoy, Co. Cork on the 22nd of February 2019 in proceedings entitled the Director of Public Prosecutions at the suit of Garda David E Delea v. William Fitzgerald.

2

. Those District Court proceedings arose from a summons issued to the appellant to attend before Mallow District Court to answer a charge that on the 4th of February 2018 at Brackbawn, Kilbehenny, in the County of Limerick, a public place, within the District Court Area of Fermoy, he did drive a mechanically propelled vehicle, registration number 96-D-15351, while there was present in his body a quantity of alcohol such that, within 3 hours after so driving, the concentration of alcohol in his breath did exceed a concentration of 22 microgrammes of alcohol per 100 millilitres of breath, to wit 40 microgrammes of alcohol per 100 millilitres of breath, contrary to s. 4(4)(a) and (5) of the Road Traffic Act 2010 (“the Act of 2010”).

Some relevant procedural matters.
3

. In the first instance, the appellant's application for leave to apply for relief by way of judicial review was made ex parte to the High Court (Noonan J.) in the normal way. The application was grounded upon an affidavit of the appellant sworn on the 1st of April 2018. However, the High Court was not disposed to accede to that application but instead granted liberty to the appellant to renew his application upon notice to the Director of Public Prosecutions (“the DPP”) i.e., the present respondent. As originally framed, the appellant's proceedings had sought to name the district judge concerned personally as a respondent. In granting the appellant liberty on the 1st of April 2019 to renew his application upon notice to the DPP, Noonan J. had directed the appellant to remove the name of the district judge concerned from the title.

4

. In an affidavit filed in support of the present proceedings, and sworn by the appellant on the 24th of January 2020, the appellant makes the following averment:

“On the 1st of April 2019 Mr Justice Noonan in granting the leave to apply on notice for this judicial review ordered that Judge Marie Keane's name was to be removed as respondent. I returned to Mr Justice Noonan's court prior to lodging the notice of motion with the amended title and sought to retain the original title in compliance with statutory instrument 345 of 2015 as I was alleging mala fides. Mr Justice Noonan did not think that I had alleged mala fides is in my affidavit and refused my application.”

5

. Statutory instrument number 345 of 2015 is entitled “ Rules of the Superior Courts (Judicial Review) 2015”, and the effect of it was, inter alia, to amend Order 84, Rule 22 of the Rules of the Superior Courts 1986 to 2015 by inserting a new sub-rule 2A therein. Order 84, Rule 22 (2A) as so inserted now provides:

“(2A) Where the application for judicial review relates to any proceedings in or before a court and the object of the application is either to compel that court or an officer of that court to do any act in relation to the proceedings or to quash them or any order made therein—

(a) the judge of the court concerned shall not be named in the title of the proceedings by way of judicial review, either as a respondent or as a notice party, or served, unless the relief sought in those proceedings is grounded on an allegation of mala fides or other form of personal misconduct by that judge in the conduct of the proceedings the subject of the application for judicial review such as would deprive that judge of immunity from suit,

(b) the other party or parties to the proceedings in the court concerned shall be named as the respondent or respondents, and

(c) a copy of the notice of motion or summons must also be sent to the Clerk or Registrar of the court concerned.”

6

. Having been granted liberty to renew his application for leave to apply for judicial review upon notice to the DPP, the appellant issued a Notice of Motion seeking such leave dated the 4th of April 2019. This was returnable to the 30th of April 2019 in the first instance and was then adjourned from time to time before ultimately coming on for hearing before Meenan J. on the 17th of April 2021.

7

. Subsequently, however, the appellant issued a second Notice of Motion dated the 24th of January 2020. In this Notice of Motion, which was returnable in the first instance to the 3rd of February 2020, the appellant sought an order “granting permission to reinstate the original title of this matter to include Judge Marie Keane as respondent and to amend the relief sought in this matter to include (seven items listed in the Notice of Motion as vii to xiii inclusive, the appellant's original proposed Statement of Grounds having sought six items of relief listed i to vi inclusive).” It appears that this motion was also adjourned from time to time before ultimately coming on for hearing before Meenan J. on the 17th of April 2021 to be...

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1 cases
  • Bourke v The Commissioner of an Garda Síochána
    • Ireland
    • High Court
    • 27 October 2023
    ...a right on an accused to sight of relevant evidence, counsel referred to the decision of the Court of Appeal in Fitzgerald v. DPP [2022] IECA 271. 21 . The submissions that were made by Mr. McDonagh SC on behalf of the second respondent and by Mr. Kennedy SC on behalf of the remaining respo......

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