O'Foghludha v McClean

• Jurisdiction: Ireland
• Judgment Date: 21 December 1934
• Date: 21 December 1934
• Docket Number: (1932. No. 513.)
• Court: Supreme Court (Irish Free State)

O'Foghludha v. McClean.

MICHAEL O'FOGHLUDHA, MAIRE NI RAGHALLAIGH, MICHEAL O'LOINGSIGH and NORA AGHAS

Plaintiffs

and

ARTHUR R. McCLEAN,Defendant (1)

(1932. No. 513.)

High Court

Supreme Court

Practice - Rules of Court - Use of Irish language in pleadings - Requirement of serving English translation with original summons or notice in Irish - Whether requirement unconstitutional - Non-severability of Rules of Court - Constitution of the Irish Free State (Saorstat Eireann) Act, 1922 (No. 1of 1922), Sch. I, Art. 4 - Rules of High Court and Supreme Court, 1926,Or. XXIX, r. 3.

Art. 4 of the Constitution of the Irish Free State provides:—"The National language of the Irish Free State (Saorstát Éireann éireann) is the Irish language, but the English language shall be equally recognised as an official language. Nothing in this Article shall prevent special provisions being made by the Parliament of the Irish Free State (otherwise called and herein generally referred to as the 'Oireachtas') for districts or areas in which only one language is in general use."

Or. XXIX, r. 3, Rules of High Court and Supreme Court, 1926, provides: —"All summonses and notices to be served in any part of Saorstát Eireann, if in Irish, may be accompanied by a translation thereof in English, and, if not so accompanied, shall be translated into English by one of the interpreters attached to the Central Office and the party serving such summons or notice shall be bound to serve the English version along with the Irish original of the document in question."

Held, by the High Court (Sullivan P. and Hanna J., O'Byrne J. dissenting) and, on appeal, by the Supreme Court, that this rule is valid and not unconstitutional or in conflict with Art. 4 of the Constitution.

Held, further, by the Supreme Court, that one of the Rules of Court could not be read apart from all the other Rules relevant to the subject matter and that, accordingly, it wag not open to a plaintiff to demand judgment under a special procedure created by the Rules (viz., summary originating summons) while refusing to perform one of the conditions imposed by the same Rules (viz., service of an English translation of the Irish original).

Motion on notice by the plaintiffs for an order giving them liberty to sign judgment in this action in default of appearance.

An application for judgment had been made to the Master of the High Court, and he had placed the application in the Court List in pursuance of Or. XIII, r. 4, of the Rules of the High Court and Supreme Court, 1926.

The application first came before Hanna J. on the 9th May, 1932, and he directed that notice of the application be served on the Minister for Justice and on the Attorney-General, and this had been done.

The facts are stated in the judgment of the President.

The plaintiffs appealed to the Supreme Court (1) from the judgment and order of the High Court. The official translation into English of the notice of appeal, which was in Irish, set out that "this appeal is grounded on the following reasons, viz., that the said judgment is wrong, so much of it as states that the service of the originating summary summons herein was not proper because there was no translation into English served together with the said summons, because the Rules of the High Court and Supreme Court, which were made under the Courts of Justice Act, 1924, are at variance with the Constitution of the Irish Free State in so far as they have enacted that it is necessary to serve an English translation any time a summons in Irish is served."

Cur. adv. vult.

Sullivan P. :—

This is an application for judgment in default of appearance which came in the first instance before the Master of the High Court and was by him placed in the Court list in pursuance of Or. XIII, r. 4.

The question to be determined is whether the plaintiff is entitled to judgment notwithstanding the fact that the provision of Or. XXIX, r. 3, has not been complied with in this case. That rule provides as follows:—[Reads the rule] (1).

The summons in the present case was in the Irish language and was served in Saorstát Éireann éireann unaccompanied by an English version. No appearance was entered by the defendant. The plaintiffs claim judgment in default of appearance, notwithstanding their neglect to serve an English version of the summons with the Irish original, on the ground that Or. XXIX, r. 3, is inconsistent with Art. 4 of the Constitution and is therefore ultra vires and inoperative.

Art. 4 of the Constitution provides that:—[Reads Art. 4] (2).

Or. XXIX, r. 3, is one of the Rules of the High Court and Supreme Court made on the 13th July, 1926, by the then Minister for Justice by virtue of the powers conferred upon him by sect. 36 of the Courts of Justice Act, 1924. That section authorised the Minister for Home Affairs (subsequently the Minister for Justice)—with the concurrence of the Minister for Finance in respect of any matter affecting public revenue or expenditure—and with the concurrence of a majority of a committee constituted as therein mentioned—to make Rules of Court for carrying Part I of the Act into effect, and for regulating pleading, practice and procedure generally, and respect of particular matters mentioned in the section, one of such matters being the use of the National Language of Saorstát

Éireann éireann in the Courts. These rules, so made, were approved by resolutions of the Dáil and Senate, passed on the 20th and 22nd days of July, 1926, respectively.

Art. 4 of the Constitution declares that the National language of the Irish Free State is the Irish language, but that the English language shall be equally recognised as an official language. This can only mean that both languages are official languages, and, as such, entitled to equal recognition. What does such equal recognition involve? To my mind no more than this—so far as the administration of Justice in the Courts is concerned—that every person shall be entitled at his option to use either language in transacting legal business, and that he shall not suffer any impediment or incur any liability or disability by reason of the language he uses.

The argument that Or. XXIX, r. 3, is ultra vires, as being inconsistent with the Constitution, was based on this, that it requires that summonses and notices in Irish shall be translated into English, and that the English version shall be served with the Irish original, while there is no rule providing that such documents in English shall be translated into Irish and requiring that the Irish version shall be served with the English original. That is undoubtedly so, but it does not follow that the rule is inconsistent with the Constitution if the opinion I have expressed as to the meaning of Art. 4 is correct. The rule does not impose upon the parties affected by it any additional expense or burden, it facilitates the progress of litigation, and it does not place any obstacle in the way of those who desire to conduct their legal business in the Irish language.

I am, therefore, of opinion that the rule is not inconsistent with the Constitution and is valid and operative, and as the plaintiffs have not complied with its provisions they are not entitled to judgment in this action.

Hanna J. :—

I agree.

When it is submitted to the Court that part of Or. XXIX, namely r. 3, is ultra vires the Constitution it is meant that under the Constitution the Minister for Justice had no power to make the rule containing the part complained of, inasmuch as it is either so repugnant to, or so inconsistent with, the Constitution as to make it invalid.

In the consideration of this question I confine myself to r. 3 and to r. 3 alone. I am not concerned with any other Rule of the same Order.

Now, how was this Rule made? Under sect. 36 of the Courts of Justice Act, 1924 (No. 10 of 1924), power is given to the Minister, with the concurrence of a majority of the Rule Making Committee, consisting of the persons mentioned in that section, to make Rules of Court for the purposes of the High Court and Supreme Court referred to in Part I of the Act, and, in particular, Rules may be made for:—

"(v).—The use of the national language of Saorstát Éireann éireann in the said Courts,"

and under the Act the Minister has power to annul or alter the said Rules and to make new Rules.

The reasons why such a power to make rules for the use of the National language was given to the Minister are obvious to anyone who knows the condition of the language question in this country. There is no direction to him to make rules for the use of the English language in the Courts; and under Art. 4 of the Constitution the National language is the Irish language, but the English language is to be recognised equally as an official language. That Article of the Constitution, read along with sect. 36 of the Courts of Justice Act, would seem to me to mean that a person is to be free to use the English language in connection with the Courts if he so desires, but that the Irish language is to be used subject to the Rules of Court which the Minister is empowered under the Courts of Justice Act to make. Rule 3 has been read, and in substance it directs that if in any part of the Saorstát a summons or notice to be served is in Irish there shall be served along with it an English translation prepared at the Central Office by an official interpreter without any expense to the person serving the document. The only obligation placed upon the person who wishes to serve a document in Irish is that, when provided with the English translation, he shall serve the two documents together. The majority of the litigants in the Saorstát understand the English language, and may not understand the Irish language, while as regards those outside the jurisdiction who may properly be impleaded in these Courts, it is not an unreasonable assumption that they also speak the English language and may...