Kennedy v Courts Service
| Jurisdiction | Ireland |
| Judge | Ms. Justice Irvine |
| Judgment Date | 07 July 2016 |
| Neutral Citation | [2016] IECA 201 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Appeal No. 2014 1281 |
| Date | 07 July 2016 |
[2016] IECA 201
THE COURT OF APPEAL
Irvine J.
Appeal No. 2014 1281
Irvine J.
Hogan J.
Costello J.
In the Matter of the Courts (Supplemental Provisions) Acts 1961 – 1968
In the Matter of the Courts of Justice Acts 1924 – 1959
In the Matter of the Courts Service Act 1998
and
Court facilities – Statutory duty – Order of?mandamus – Appellants seeking order of?mandamus?directing respondent to provide, manage and maintain an adequate and suitable courthouse – Whether respondent has a statutory duty to provide particular court facilities at particular locations
Facts: The appellants, Mr Kennedy, Mr Flynn, Mr McCormack, Mr Kingston, Mr O?Donnell and Mr English, sought and were granted leave to maintain judicial review proceedings (by order of Peart J dated 21st July, 2011) wherein they sought a number of declaratory reliefs and an order of?mandamus?directing the respondent, the Courts Service, to provide, manage and maintain an adequate and suitable courthouse in Tipperary town so as to provide adequate and suitable facilities for the legal profession, judiciary and court staff and members of the public in general. Birmingham J did not accept that there is a statutory duty to provide particular facilities at particular locations. The appellants appealed to the Court of Appeal against Birmingham J?s judgment on the following grounds: (i) The High Court judge erred in law in concluding that the respondent had no specific duty to maintain courthouse facilities in Tipperary town given that it had managed and maintained Tipperary courthouse as a venue over the years and had included it, since 2008, on its list of courthouses for restoration; (ii) The trial judge erred in law in concluding that the power to designate court venues was held by the respondent given that the power was held by the President of the Circuit Court under s. 10 of the Courts of Justice Act 1947; (iii) The respondent?s statutory duty to maintain Tipperary courthouse continued in circumstances where the President of the Circuit Court had not made any Order removing Tipperary town as a designated Circuit Court venue; (iv) The respondent?s failure to maintain Tipperary courthouse breached its obligations under Art. 34.3.4 of the Constitution. The appellants maintained that the High Court judge erred in law in making an order that they pay 50% of the respondent?s costs of the High Court hearing. The respondent submitted that: (i) the High Court judge was correct when he concluded that while the respondent had certain general statutory duties under the Courts Service Act 1998 concerning the maintenance and upkeep of courthouses, the respondent could not be said to have a statutory duty to maintain any particular courthouse or courthouse facilities at any specific location; (ii) the High Court judge was correct to conclude that the existence of such a specific duty would be inconsistent with the respondent?s powers to designate particular venues as provided for in s. 6(2)(j) of the 1998 Act; (iii) whatever power was vested in the President of the Circuit Court by reason of the provisions of s. 10 of the 1947 Act, that power was delimited and restricted by the power afforded to the respondent by virtue of s. 6(2)(j) of the 1998 Act; (iv) the trial judge was correct in concluding that the statutory duty contended for was inconsistent with the respondent?s obligations to perform its functions in the most beneficial, effective and efficient manner having regard to its resources as per s. 13(2)(a) of the 1998 Act; (v) the respondent?s constitutional obligations as provided for in Art. 34.3.4 do not extend to providing such facilities at a particular nominated location.
Held by Irvine J that to hold that the respondent had a specific duty in respect of a specific courthouse in a specific location was incompatible with the power of the respondent to designate court venues as provided for in s. 6(2)(j) of the 1998 Act and the power to create, vary or abolished district court areas and venues as entitled under s. 29 thereof. Irvine J also declined the applicants? appeal in respect of the costs order made by Birmingham J on 23rd May, 2014.
Irvine J held that the appeal should be dismissed.
Appeal dismissed
Core to this appeal is the extent of the respondent's statutory duty in respect of the provision, management, and maintenance of courthouse facilities throughout the country. Do the provisions of the Courts Service Act 1998 (the ?1998 Act?) impose upon the respondent a statutory duty to provide particular court facilities at particular locations such as Tipperary courthouse, and was Birmingham J. wrong in law when by order of 23rd May, 2014, he declined the declaratory relief sought by the appellants on the basis that the respondent was under no such duty? These are the principal matters addressed in this judgment.
The appellants, whom I shall refer to in the course of this judgment as the applicants, are all solicitors who practice in that capacity in Tipperary town. The respondent is a body corporate established under the 1998 Act and as such is responsible for the management of courts and the provision and maintenance of court buildings throughout the country.
Tipperary courthouse is a protected structure which is owned by Tipperary County Council. As far back as 2008, it had been included in the respondent's list of courthouses which were in need of refurbishment. Unfortunately, the intended refurbishment was never undertaken and the building continued to deteriorate. Nonetheless, it was used for District Court sittings twice per month and for Circuit Court sittings three to four weeks a year up until November, 2010 when part of the ceiling collapsed.
As a result of these unfortunate events the District Court now sits in the basement of a local theatre in Tipperary town and the Circuit Court in Clonmel, some twenty five miles away.
The courthouse was inspected on 21st September, 2010, by representatives of the Office of Public Works and the respondent for the purposes of identifying the sum of money that would be required to repair the damage. It is not in dispute that a conservative estimate of the cost of carrying out the requisite repairs was then in the region of ?100,000.
In 2011 the Office of Public Works wrote to the respondent seeking finance to the extent of ?100,000 to allow the necessary repairs be carried out. Given that the courthouse is a listed building, the respondent wrote to the Secretary General of the Department of Justice, Equality and Law Reform (?the department?) asking if it would be prepared to make funds available to prevent the building further deteriorating in circumstances where it did not have the necessary resources to bring the courthouse up to an acceptable standard.
By letter dated 14th June, 2011, the first named applicant was advised by Mr. Brendan Ryan, Chief Executive Officer of the respondent, that due to severe budgeting restraints it was not in a position to fund the extensive refurbishment of the courthouse which would be sufficient to bring it up to modern day standards. He stated that the respondent was engaged in an ongoing review of all secondary court venues, including Tipperary town, having regard to service requirements and capital and current funding availability and that in implementing the review it would have to focus its limited resources on venues carrying the greatest level of court business. He did, however, observe that, because the building was a listed building, the department had agreed to fund some limited repair works to prevent further deterioration but that this would be insufficient to render the building operative.
While the Minister for State with Special Responsibility for the Office of Public Works announced in January, 2012 that urgent repairs would be carried out on the courthouse with the assistance of the Department of Justice, no such works have, in fact, been undertaken.
The engagement between the relevant interested parties concerning Tipperary courthouse was significantly more extensive than that advised in the aforementioned summary. Nonetheless, I think it is sufficient for the present purposes as it captures the position of the parties and in particular the resting position of the respondent at the date the proceedings issued which was that it simply could not, because of budgetary constraints, agree to carry out the requested repairs.
It was in these circumstances that the applicants sought and were granted leave to maintain the present judicial review proceedings (by order of Peart J. dated 21st July, 2011) wherein they seek a number of declaratory reliefs and also an order of mandamus directing the respondent to provide, manage and maintain an adequate and suitable courthouse in Tipperary town so as to provide adequate and suitable facilities for the legal profession, judiciary and court staff and members of the public in general. The relief sought by way of an order for mandamus was apparently not pressed in the course of the High Court hearing.
Having considered the submissions of the parties and the relevant provisions of the 1998 Act and in particular ss. 5, 6 and 13 thereof, this is what Birmingham J. concluded concerning the statutory remit of the respondent:
?17. For my part, I would be prepared to accept that the Courts Service had a duty to provide, manage and maintain court services and to provide facilities for users of the courts. However, what I find difficult to accept is the suggestion that there is a statutory duty to provide particular facilities at...
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