Knowles v Governor of Limerick Prison

JudgeMr. Justice Richard Humphreys
Judgment Date25 January 2016
Neutral Citation[2016] IEHC 33
Docket Number[2015/2044 SS]
CourtHigh Court
Date25 January 2016



[2016] IEHC 33

Humphreys J.

[2015/2044 SS]


Constitution – Art. 40.4 of the Constitution – Habeas Corpus Act 1781 – Legality of detention – Representation by lay person – Contempt of Court

Facts: Following the committal of the applicant to prison for failure to comply with the order for possession made by the Circuit Court on a motion for attachment and committal filed by the bank against the applicant for her failure to pay the borrowings, a lay person on behalf of the applicant now brought an application under art. 40.4 of the Constitution challenging the legality of the detention of the applicant.

Mr. Justice Richard Humphreys refused to grant an order for the release of the applicant and held that the applicant was detained in accordance with the law. The Court directed that the earlier order of the Court granting bail to the applicant would continue subject to the fulfilment of the conditions set in that order and to enable the applicant to purge her contempt before the Circuit Court. The Court observed that a layperson did not have any right to represent a person in custody unless there were exceptional circumstances. The Court held that if there were no exceptional circumstances, a lay person could represent an unrepresented detainee by way of an ex-parte application only with the prior consent of the detainee for such representation. The Court held that a challenge to the detention of a person under art. 40.4 would be made only if there was a fundamental flaw of the procedure, which was absent in the present case.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 25th day of January, 2016

By loan offer dated 21st February, 2006, ICS Building Society agreed to lend moneys to the applicant and a co-owner, secured by a first legal mortgage over her family home in Glanmire, County Cork. The borrowers defaulted on payments and full repayment was demanded by letter dated 27th October, 2009.


The Building Society brought proceedings against the borrowers in Cork Circuit Court on 6th October, 2011. At the hearing of those proceedings, the applicant was ordered to surrender possession of her family home by order dated 20th January, 2014. The order for possession was appealed to the High Court. That appeal was dismissed by Kearns P. on 14th July, 2014.


On 23rd September, 2014, Whitney Moore Solicitors came on record for the plaintiff building society in the Circuit Court proceedings. The notice of change of solicitor contained an error in the title, and a new notice was later issued with the correct title, but backdated as of the date of the original.


On 8th October, 2015, an order was made substituting the Bank of Ireland as a plaintiff in those proceedings.


On 16th October, 2015, the bank make an ex parte application to Cork Circuit Court for liberty to issue a motion for attachment and committal against the applicant for failure to comply with the order for possession. That motion came before His Honour Judge McDonagh on 27th October, 2015, who adjourned it to 8th December, 2015.


By order made on 8th December, 2015, His Honour Judge Ó Donnabháin directed the attachment and committal of the applicant by reason of her failure to comply with the possession order, until such time as she purged her contempt.


On 9th December, 2015, Mr. Ben Gilroy, a litigant in person on behalf of the applicant, applied to Binchy J. for an order under Article 40.4 of the Constitution and under the Habeas Corpus Act 1781 (that short title having been conferred by the Short Titles Act 1962) for an inquiry into the legality of her detention. The application was transferred to Barrett J. who made an order for an inquiry, which was made returnable for the 10th December, 2015, and ultimately was further transferred to me on that date.


In the meantime, following the application for attachment and committal, the applicant appears to have had the idea of seeking an enlargement of time to appeal the original possession order for a second time. She brought a motion dated 22nd October, 2015 in this regard, and the order was, surprisingly, granted by the Master on 10th November, 2015. Further apparently inconclusive proceedings in relation to it appear to have taken place in the High Court on 7th December, 2015 when the order was not set aside. I have not been given detailed information as to the basis for the latter development. However it can legitimately be observed as far as the Master's order is concerned that the procedure of appealing a Circuit Court order to the High Court for a second time, after the final determination by the High Court of the first appeal, is not known to the law. There are truly exceptional circumstances where a final order can be set aside, for example, where a grave breach of natural justice has unwittingly occurred (see O'Neill v. Governor of Castlerea Prison [2004] I.R. 298), but even if such rare and exceptional circumstances arise, such an application must be specially made to the court that made the ultimate order and not by way of a second appeal ab initio. The Master's order is clearly a nullity. It is an impermissible order in the light of the final order of Kearns P. Even if it were an order made within jurisdiction, which it is not, it provides no basis for the applicant to continue to fail to comply with the possession order.


Following the hearing of the present application, I indicated that I would circulate a written judgment setting out my reasons, and this is that judgment. I again wish to take the opportunity to commend the applicant for the succinct and organised manner in which she presented her case before me.


In the course of determining the present application I was required to decide a number of preliminary issues which I propose to record in the present judgment.

Can an applicant be represented by a lay person in habeas corpus?

The first issue before me was whether Mr. Gilroy could represent the applicant following the return to the order for an inquiry under Article 40.4. On 10th December, 2015, I ruled that he could not, and I now set out formal written reasons for that decision.


It is a fundamental principle of the operation of the legal system that, in general, an individual natural person has the right to represent themselves in legal proceedings. A person representing themselves is subject to the same procedural rules that apply to other litigants. See for example Burke v. O'Halloran [2009] 3 I.R. 809 at pp. 818-819.


It is possible to envisage circumstances where that right may be subject to limitations, but no such circumstances arise here. For example, a person accused of an offence does not have an unqualified right to directly cross-examine the injured party, and it could be appropriate to require such cross-examination to be carried out through the court itself or a lawyer appointed by it, where a direct cross-examination of the victim by the defendant, especially in a sexual crime or other offence against the person, would be oppressive and would amount to legalised victimisation of the injured party.


However, where a person is not representing themselves, it is a fundamental postulate of the legal system that they must be represented by a qualified legal professional, who in turn owes professional duties to the court. This is also true where the entity being represented is a legal rather than a natural person, and therefore by definition cannot appear directly itself (see my decision in Pablo Star Media Ltd. v. E.W. Scripps Co. [2015] IEHC 828).


This fundamental principle has been reaffirmed on numerous occasions, including in the habeas corpus context: see for example The State (Burke) v. Lennon [1940] I.R. 136 (where it was said that Article 40 was not to be taken as allowing an applicant to be represented by a third party where he was able to make the application himself), and Application of Woods [1970] I.R. 154, where the Supreme Court specifically and unanimously rejected the argument that another prisoner could, on behalf of the applicant, make substantive submissions following the return to a habeas corpus order. However the Supreme Court in that case did allow the prisoner in question to address it on the issue of his entitlement to represent the applicant, as I did in this case. (See also The State (Egan) v. Central Mental Hospital(Unreported, High Court, Kenny J., 27th January, 1972).


The principle has also been reaffirmed in cases such as Battle v. Irish Art Promotions Ltd [1968] I.R. 252 and Re Coffey [2013] IESC 11. At para. 37 of Coffey, Fennelly J. said that the general principle was subject only to ‘ rare exceptions’ where the general rule would cause ‘ particular injustice’. Such rare exceptions include Coffey v. Tara Mines [2008] 1 I.R. 436, where Ó Néill J. allowed a wife to represent a husband, where the latter would otherwise not be able to make his case due to disabilities rendering it impossible to conduct the proceedings. The Legal Aid Board refused to assist and the plaintiff's wife was unable to obtain a solicitor despite her best efforts. That was truly an exceptional case and furnishes no support for the argument advanced by Mr. Gilroy.


Representation by a family member is in a different category in any event as such representation is permitted more generally in the District Court under O. 6, r. 2 of the District Court Rules 1997 in cases of ‘ infirmity or other unavoidable cause’, and so does not infringe any fundamental principle of the legal system.


My attention has been drawn to orders in a recent habeas corpus application, Corrigan v. Governor of Mountjoy Prison (Court of Appeal, 2015/72 SS, 17th February, 2015)...

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