G v Director of Public Prosecutions

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 10 July 2023
• Neutral Citation: [2023] IEHC 386
• Court: High Court
• Docket Number: 2021 No. 493 JR

Between

G.

Applicant

and

A Judge of the District Court

Blanchardstown District Court Office

Respondents

Paul Dolan

Craig Geoghegan

Eoin Kelly

John Paul Cochin

Notice Parties

[2023] IEHC 386

2021 No. 493 JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Leave – Joinder – Applicant seeking to reopen judgment – Whether the applicant should be given an opportunity to amend his statement of grounds

Facts: The High Court, by reserved judgment dated 27 March 2023, granted leave to apply for judicial review: G. v Director of Public Prosecutions [2023] IEHC 142 (the leave judgment). On 17 April 2023, the applicant indicated an intention to apply to have the court revisit the leave judgment in order to address a number of alleged errors and omissions in same. Regarding the refusal of leave in respect of the complaints made against the officials in Blanchardstown District Court Office, his argument appeared to be that he, having arrived at the courthouse on 25 February 2021 after the day’s sittings had already concluded, should have been facilitated with a special out-of-hours sitting. Regarding the refusal of leave in respect of a series of declaratory reliefs set out at paragraph 5 C of the statement of grounds, he submitted that the declaratory reliefs “were so self-explanatory that no additional ground should be required for same to be considered and their relevance to the herein proceedings” and, in the alternative, that he, as an unrepresented litigant, should be given an opportunity to amend his statement of grounds. He sought to reverse the refusal of an earlier application to amend, relying on “evidence” of premeditation on the part of the District Court judge. Regarding the refusal of leave to apply for an order of mandamus directing the District Court judge to issue summonses against named members of An Garda Síochána, for the reasons at paragraphs 36 and 37 of the leave judgment, the applicant submitted that the High Court “should have an inherent jurisdiction to hear any matter and give any order, to satisfy its constitutional obligation to vindicate the Constitutional Rights of the Parties, the interest of Justice, the limited resources of the Courts and parties and the State’s obligation for Justice to be done expeditiously”. He submitted that the legal test governing the grant of leave to apply for judicial review, as stated in G. v Director of Public Prosecutions [1994] 1 I.R. 374, should be amended by replacing the mention of “discretionary” with the phrase “compulsory unless an alternative effective remedy is available to the applicant”. He submitted that the refusal of leave had denied him an “effective remedy”. Counsel on behalf of the Director of Public Prosecutions (the DPP) applied to participate in the proceedings as an amicus curiae.

Held by Simons J that there was no factual basis for suggesting that any litigant, who allowed an 18 month time-limit to run to the last day, would be facilitated with an out-of-hours sitting. He held that there was no reason to set aside the finding in the leave judgment that there was no basis for granting leave in respect of the declaratory reliefs set out at paragraph 5 C of the statement of grounds. He held that the applicant was not entitled to seek to amend his statement of grounds some two years after the proceedings first issued. Simons J found that there was nothing in the verifying affidavit of 24 May 2021 which alleged that the District Court judge had prepared his decision before the hearing, still less that there had been a “premeditated unfair hearing” or “contempt of the Court”. Simons J held that the principles stated at paragraphs 36 and 37 of the leave judgment were unexceptionable and reflected the well-established division of function between the High Court and courts of limited and local jurisdiction such as the District Court. He held that the applicant was not refused leave to apply for judicial review by reference to any discretionary factor. Simons J held that the applicant had not been denied an “effective remedy”; he had been granted leave to challenge the validity of the decision to refuse to issue summonses pursuant to the common informer procedure. Simons J held that the DPP should be afforded the status of a notice party as the DPP may, potentially, be directly affected by the outcome of the proceedings.

Simons J refused the application to reopen the judgment dated 27 March 2023. He joined the DPP to the proceedings as a notice party.

Application refused.

JUDGMENT of Mr. Justice Garrett Simons delivered on 10 July 2023

INTRODUCTION

1 The within proceedings take the form of judicial review proceedings pursuant to Order 84 of the Rules of the Superior Courts. Leave to apply for judicial review was granted by reserved judgment dated 27 March 2023, G. v. Director of Public Prosecutions [2023] IEHC 142 (“ the leave judgment”). This judgment was delivered following an inter partes hearing.

2 The matter next appeared before the court on 17 April 2023. On that date, the applicant indicated an intention to apply to have the court revisit the leave judgment in order to address a number of alleged errors and omissions in same. The applicant was directed to file written submissions by 1 May 2023. Regrettably, the applicant failed to meet this deadline and then failed to attend when the matter was listed for mention on 15 May 2023. Time for the filing of written submissions was subsequently extended until 12 June 2023. This deadline was also missed. Thereafter, the applicant was given a final opportunity to file written submissions. The submissions were ultimately filed in the Central Office of the High Court on 20 June 2023.

3 At a directions hearing on 26 June 2023, counsel for the only active participant in the proceedings to date, namely the District Court Office, indicated that his side did not intend to file written submissions in reply but were relying, instead, on the well-established principles governing applications to reopen judgments as recently applied by this court in G. v. Director of Public Prosecutions [2023] IEHC 139. The parties agreed that the court should determine the application to reopen the leave judgment “ on the papers”, i.e. by reference to the written submissions filed by the applicant and without the necessity of any further oral hearing. Judgment was reserved until today's date.

EXCEPTIONAL JURISDICTION TO REVISIT WRITTEN JUDGMENT

4 Much of the case law on the jurisdiction to revisit a written judgment is concerned with appellate courts, rather than courts of first instance. (See, generally, In the matter of Greendale Developments Ltd (No. 3) [2000] 2 I.R. 514 and subsequent case law). This is because a party who is dissatisfied with a judgment of first instance will typically have a right of appeal against that decision. This right of appeal will generally provide a party, who is aggrieved by a first instance judgment, with an effective remedy. The grounds upon which a judgment may be appealed are much broader than the grounds upon which a court of first instance can revisit its own judgment.

5 It is only at appellate stage that the jurisdiction to revisit a written judgment assumes an especial significance. This is because an application to revisit the written judgment may be the only avenue open to a party dissatisfied with a decision of an appellate court. In practice, such applications are rare, and even more rarely successful.

6 The Court of Appeal has confirmed, in Bailey v. Commissioner of An Garda Síochána [2018] IECA 63, that a court of first instance has jurisdiction, prior to the order envisaged by the judgment having been drawn up and perfected, to revisit an issue decided in a written judgment. The Court of Appeal posited the following test. The High Court, if asked to revisit an issue already decided in a written judgment, must be satisfied that there are “ exceptional circumstances” or “ strong reasons” which warrant it doing so. The principle of legal certainty and the public interest in the finality of litigation dictate that such a jurisdiction must be exercised sparingly. The Court of Appeal went on to explain that these considerations apply with even greater force to the decision of an appellate court, which is normally to be regarded as final and conclusive.

7 A very useful summary of the principles is to be found in the judgment of the High Court (McDonald J.) in HKR Middle East Architects Engineering LL v. English [2021] IEHC 376.

8 The following considerations appear to me to be relevant to an application to revisit a decision of first instance in respect of which there is an unrestricted right of appeal. The judge who is asked to revisit their own judgment should have regard to the fact that, on most occasions, the appropriate avenue of redress for a person aggrieved by a judgment is to exercise their right of appeal. The parties to litigation are entitled to assume that, absent an appeal, a written judgment, which has been approved by the judge and has been published, is conclusive.

9 A party who is dissatisfied with a written judgment should not normally be entitled to reagitate their proceedings before the court of first instance. Were this to be allowed to happen, it would, in effect, insert an additional layer of judicial decision-making, whereby a party would seek to have the judgment revisited by the trial judge, as a prelude to an appeal if unsuccessful. This would add to delay and involve the parties incurring further costs. The proceedings would, in effect, be subject to three hearings: (i) the initial hearing; (ii) the hearing of the application to the court of first instance to reopen its judgment; and (iii) the hearing of the appeal.

10 There will, however, be limited circumstances in which it may be appropriate to invite a court of first instance to review its own judgment. Perhaps...