Hall v Stepstone Mortgage Funding Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 16 November 2015
• Neutral Citation: [2015] IEHC 737
• Court: High Court
• Date: 16 November 2015

Hall v Stepstone Mortgage Funding Ltd

No Redaction Needed

BETWEEN

RAY HALL AND SUSAN HALL

APPLICANTS

AND

STEPSTONE MORTGAGE FUNDING LIMITED

RESPONDENT

[2015] IEHC 737

[No. 575 J.R./2015]

THE HIGH COURT

Practice & Procedures – Appeal against the decision of Circuit Court – Possession of family home – Judicial review – O.84, r. 22(2A) (b) of the Rules of the Superior Courts – Whether private entities were amenable to judicial review

Facts: The first named applicant sought leave to apply for judicial review for quashing the order of the circuit court directing the possession of the family home of the first named applicant. However, the respondent contended that before deciding the issue of grant of leave to the first named applicant, the Court must first decide as to whether the first named applicant had joined the correct respondent as the respondent being the private entity was not amenable to the judicial review. The respondent asserted that since there was a challenge to the order of the Judge of the Circuit Court, he should be named as the party.

Mr. Justice Richard Humphreys dismissed the preliminary objection raised by the respondent. The Court, however, left the issue of whether the State should be joined as a party until the determination of the leave application. The Court held that a judicial review action must relate to an underlying public law function; however, the respondent need not be a public entity. The Court found that the decision from which the leave was sought involved the applicants and the respondent as parties and there was no involvement of the State in those proceedings before the Circuit Court. The Court observed that the judge of a Court should only be named as the respondent under o.84, r. 22(2A) (a) of the Rules of the Superior Courts if there was an allegation of mala fide or personal misconduct against that judge. The Court found that since there was no grave allegation against the judge in the present case, o.84, r. 22(2A) (a) of the Rules of the Superior Courts had no applicability.

1 1. This application for leave to apply for judicial review came before me originally as an ex parte application moved by the first named applicant, Mr. Ray Hall, in person, on behalf of himself and the second named applicant. In that application, Mr. Hall sought an order quashing an order of possession of his family home made by Her Honour Judge Leonie Reynolds in the Circuit Court in Trim on 16 ^th July, 2015.

2 2. I directed that the respondent, who was the applicant for the possession order, be put on notice of the leave application.

3 3. When the matter came back before me on 9 ^th November, 2015, Mr. Michael O'Sullivan, B.L., appeared for the respondent and requested me to decide as a preliminary point, prior to addressing the question of whether Mr. Hall should be granted leave, the issue of whether he had simply joined the wrong respondent.

4 4. Mr. O'Sullivan submitted that Stepstone Mortgage Funding Limited was an entirely private entity and did not carry out any public law functions such as would bring it within the purview of judicial review in accordance with decisions such as Murtagh v. Board of Management of St. Emer's National School [1991] 1 I.R. 482 and Bloxham (In Liquidation) v. Irish Stock Exchange [2013] IEHC 301.

5 5. While Mr. Hall did not formally consent to this point being decided as a preliminary issue, I did not take him to be strenuously opposing the application either. It appeared to me from what he said to the court that, at this stage, his major objective was to achieve clarification of whether he had followed the correct procedure; and the respondent's application to have this question determined as a preliminary point would seem to facilitate his objective. In view of that fact, and despite the consideration that the determination of a preliminary point in a mere leave application is not something I would normally view as expedient, I was, therefore, minded in this particular case to accede to the application. In the present judgment I consider whether the objection of the respondent is well founded.

6 6. Mr. O'Sullivan says that, before the Rules of the Superior Courts (Judicial Review) 2015 ( S.I. No. 345 of 2015), the appropriate respondent would have been the learned Circuit Court judge, although he concedes that his client would "very possibly" have been named as a notice party.

7 7. However, he objects to now being named as a respondent because he says there is no decision of his being impugned.

8 8. As a fallback argument he says that in the present case, the judge still should have been named as a respondent instead, by virtue of O. 84, r. 22(2A)(a) because Mr. Hall is "calling into question the manner in which the judge carried out the office of judge of the Circuit Court".

Can private law entities be named as respondents in judicial review?

9 9. While the naming of a purely private entity as a respondent in a judicial review proceeding might be hitherto unfamiliar, that is precisely what the 2015 rules require, in the event that such an entity is the other party to judicial proceedings which are being challenged in the judicial review. Order 84, rule 22(2A)(b) requires that:-

"The other party or parties to the proceedings in the court concerned shall be named as the respondent or respondents."

10 10. This rule applies in a case 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".

11 11. A judicial review action must relate to an underlying public law function being carried out by somebody, but not necessarily by the respondent. It is not...