Lavery v District Judge James Faughnan

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 01 November 2017
• Neutral Citation: [2017] IEHC 661
• Date: 01 November 2017
• Court: High Court
• Docket Number: 2017 No. 37 JR

[2017] IEHC 661

THE HIGH COURT

Barrett J.

2017 No. 37 JR

Between:

JOSEPH LAVERY

Plaintiff

– and –

DISTRICT JUDGE JAMES FAUGHNAN

Defendant

Practice & Procedure – O. 84, r. 20(1) of the Rules of the Superior Courts 1986 – Isaac Wunder order – Breach of Court order – Leave to seek judicial review – False and vexatious grounds

Facts: The plaintiff filed an application seeking leave to bring judicial review proceedings. The plaintiff was subjected to the Isaac Wunder order but the plaintiff commenced the within proceedings without obtaining leave from the President of the High Court. The plaintiff had filed the present leave application in relation to the conduct of the learned District Judge alleging him of being guilty of mala fides.

Mr. Justice Max Barrett stated that the plaintiff was subjected to the Isaac Wunder order and he could not have availed leave to bring the judicial review proceedings without such leave being agreed upon by the President of the High Court or any other judge nominated by the President. The Court refused to make a ruling in relation to the present leave application pursuant to the Isaac Wunder order extant against the plaintiff. The Court, however, made observations that the allegations of mala fides in the within proceedings against the District Judge was without any basis and evidence.

JUDGMENT of Mr Justice Max Barrett delivered on 1st November, 2017.

I. Background

1 This is an application for leave to bring judicial review proceedings. The applicant, Mr Lavery, has, since 4th July, 2016, been the subject of a so-called Isaac Wunder order whereby he is prohibited ' from issuing any further proceedings without the leave of the President of the High Court or of another Judge of the High Court nominated by the President.' High Court orders are not made for the making; they are made with a purpose in mind and that purpose must be honoured, most of all by the High Court itself. The general purpose of Isaac Wunder orders was outlined by Keane C.J. in Riordan v. Ireland [2001] 3 I.R. 365, 370, and demonstrates the type of misbehaviour in which Mr Lavery must have been perceived to have engaged in the past for an Isaac Wunder order ever to have issued against him. Per Keane C.J:

'[T] here is vested in this court, as there is in the High Court, an inherent jurisdiction to restrain the institution of proceedings by named persons in order to ensure that the process of the court is not abused by repeated attempts to reopen litigation or to pursue litigation which is plainly groundless and vexatious. The court is bound to uphold the rights of other citizens, including their right to be protected from unnecessary harassment and expense, rights which are enjoyed by the holders of public offices as well as by private citizens. This court would be failing in its duty, as would the High Court, if it allowed its processes to be repeatedly invoked in order to reopen issues already determined or to pursue groundless and vexatious litigation.'

2 The reference to '[the] right to be protected from unnecessary harassment and expense, rights which are enjoyed by the holders of public offices as well as by private citizens' is perhaps especially notable in the context of the within proceedings.

3 Given that the Isaac Wunder order made against Mr Lavery has been extant since 4th July, 2016, it is notable that the within proceedings commenced by way of notice of motion dated 16th January, 2017, without leave being obtained of the President of the High Court to their being brought and without the President, upon application for such leave being made, deciding the application himself or nominating another High Court judge so to do. It is true that, as appears from the pleadings now before the court, a number of incidental administrative matters have been dealt with by a couple of judges of the High Court in the context of the within proceedings since they commenced. What is not clear is whether at any point those High Court judges were expressly advised or otherwise knew of the fact that there is an Isaac Wunder order extant against Mr Lavery. In this regard, it is notable that in his affidavit grounding the within proceedings, Mr Lavery, most surprisingly, never once makes mention of the fact that he is the subject of an Isaac Wunder order. The court does not consider in any event that the issuing of a number of orders of an administrative nature by the judges aforesaid yields the happy consequence for Mr Lavery that the within proceedings should now be deemed to enjoy some form of implicit Isaac Wunder-related leave. It is before this Court that the existence and consequence of the Isaac Wunder order has expressly been raised, and it is from this Court that an adjudication must now issue as to what is to be done about the commencement of the within proceedings in breach of the Isaac Wunder order that was and is extant against Mr Lavery.

4 In this last regard, the reasoning of the court may be stated simply: Mr Lavery knew that the Isaac Wunder order was extant; Mr Lavery knew that a certain process was required as regards commencing the within proceedings; and Mr Lavery failed to observe that process. Why then should Mr Lavery get to side-step the consequences of his own actions simply because his proceeding in disregard of the Isaac Wunder order was not immediately noticed and/or not expressly adjudicated upon? There is no reason why. To the President of the High Court Mr Lavery must, consistent with the Isaac Wunder order extant against him, go and make application for leave to bring such proceedings as he now wishes to bring, which application will be decided by the President or such other judge of the High Court as the President nominates to determine that application. Were the court otherwise to proceed, were it to adjudicate now upon Mr Lavery's application for leave to bring his judicial review proceedings, it considers that it would, to borrow from the above-quoted extract from the judgment of Keane C.J. in Riordan, be ' failing in its duty...[not to allow] its processes to be repeatedly invoked in order to...pursue groundless and vexatious litigation.'

II. The Matters in Respect of Which Judicial Review is Now Sought

(i) Overview.

5 Notwithstanding the conclusion just reached, and mindful of the possibility that despite standing in breach of the requirements of the Isaac Wunder order extant against him, Mr Lavery may yet continue to proceed in breach of that order and seek to bring an appeal against the within judgment, the court explains hereafter why, even if it had been minded to give judgment on Mr Lavery's application for leave to bring his judicial review proceedings, and again the court is not so minded, it would in any event have declined to grant such leave.

(ii) Bad Faith.

6 Mr Lavery alleges that, in certain District Court proceedings, the learned District Judge was guilty of bad faith ( mala fides) in convicting Mr Lavery of various road traffic offences, including certain offences in respect of which Mr Lavery maintains that he did not receive fixed penalty notices or summonses. Mr Lavery also appears to have taken offence at the demeanour of the learned District Judge when considering his case and ruling against him.

7 The court cannot but note that an allegation of bad faith made against any judge in the discharge of her or his official functions is a remarkably serious allegation to make. So it is right that the court should note that there is absolutely nothing before the court, apart from Mr Lavery's bald averments and un-particularised pleadings to the contrary, to suggest that the learned District Judge was possessed of, or motivated by, bad faith in his dealings with Mr Lavery. Indeed, it is notable that despite repeatedly referring in his pleadings to the learned District Judge's alleged bad faith, Mr Lavery singularly fails in those pleadings ever to particularise what that bad faith involved. Instead, for example, the learned District Judge's actions of refusing an adjournment and entering certain convictions are presented in and of themselves as somehow being bad faith actions. But if rulings against parties fell properly to be treated in and of themselves, without anything further, and here nothing further is offered,...