Lavery v DPP No. 3; Lavery v A Judge of the District Court

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 13 March 2018
• Neutral Citation: [2018] IEHC 185
• Date: 13 March 2018
• Court: High Court
• Docket Number: [2015 No. 619 J.R.] [2016 No. 228 J.R.] [2016 No. 346 J.R.]

BETWEEN

JOSEPH LAVERY

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

(No. 3)

BETWEEN

JOSEPH LAVERY

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

BETWEEN

JOSEPH LAVERY

APPLICANT

AND

A JUDGE OF THE DISTRICT COURT

RESPONDENT

[2018] IEHC 185

[2015 No. 619 J.R.]

[2016 No. 228 J.R.]

[2016 No. 346 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Practice & Procedure – Judicial review – Revisit order – Isaac Wunder order – Liberty to issue the motion – Material errors.

Facts: The applicant, in three judicial review proceedings, applied for liberty to issue the notices of motion for seeking orders to the effect that the Court should revisit its earlier orders made in previous proceedings. In the previous proceedings, the Court made various orders against the applicant, including the Isaac Wunder order, which the applicant wanted to set aside as one of the reliefs asked for.

Mr. Justice Richard Humphreys refused to give the desired reliefs to the applicant. The Court held that if the applicant had any grievances against any order, the appropriate remedy was to file an appeal against that order. The Court noted that it had the power to change the judgment only in cases where there was any clerical error or factual error before the perfection of order.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 13th day of March, 2018

1 The applicant in these three judicial reviews applies for liberty to issue notices of motion seeking to revisit orders previously made in these proceedings. In order to explain the background, it might be helpful if I were to summarise the eleven High Court actions already brought by this applicant. These fall into essentially three groups. Firstly, applications made prior to the proceedings with which I am now dealing, secondly, the proceedings directly relevant to the present motions, and thirdly, proceedings subsequently instituted.

2 The actions pre-dating the proceedings that are directly relevant are as follows:

(i). Lavery v. Judge McBride [2012 No. 746 J.R.], a judicial review in relation to criminal proceedings involving the applicant which apparently was dismissed.

(ii). Lavery v. Judge McBride [2013 No. 682 J.R.], again apparently also dismissed.

(iii). Lavery v. Judge McBride [2014 No. 301 J.R.], again the applicant informs me this was dismissed.

(iv). Lavery v. Judge McBride [2015 No. 4819 P.], a damages claim arising out of the applicant's difficulties to which the previous litigation related. I understand from the applicant that this was also unsuccessful.

3 The second group then is the proceedings with which the current application is concerned. Those are as follows:

(i). Lavery v. D.P.P. [2015 No. 619 J.R.]. This was a judicial review in which the applicant claimed an entitlement to represent himself in District Court criminal proceedings and essentially claimed that a legal aid solicitor had been forced upon him contrary to his wishes. In that regard, I made an order on 9th May, 2015 substituting the D.P.P. as a respondent in lieu of Judge Clyne and ultimately on 21st December, 2015 dismissed the leave application (see Lavery v. D.P.P. (No. 1) [2016] IEHC 866 (Unreported, High Court, 21st December, 2016)). That order was appealed to the Court of Appeal, Record No. 2016/8, which dismissed the appeal on 8th July, 2016.

(ii). Lavery v. D.P.P. [2016 No. 228 J.R.]. This was an application which related to a challenge to a decision by Judge Lucey to adjourn criminal proceedings against the applicant while the appeal in relation to judicial review 2015 No. 619 J.R. (no. (v) above) was pending. In dealing with that matter, I made an order on the 11th April, 2016 substituting the D.P.P. as a respondent in lieu of Judge Lucey and ultimately I refused leave (see Lavery v. D.P.P. (No. 2) [2016] IEHC 332 (Unreported, High Court, 15th June, 2016). I then went on to make an Isaac Wunder order against the applicant on the 4th July, 2016.

(iii). Lavery v. A Judge of the District Court [2016 No. 346 J.R.]. This was a challenge to a prosecution of the applicant on a separate matter on the grounds that the applicant claimed not to have received a summons. In that matter, on 13th June, 2016, I gave liberty to the D.P.P. to seek an Isaac Wunder order (which was ultimately granted in the no. (vi) proceedings above) and on 15th July, 2016 I refused leave (see the Lavery v. D.P.P. (No. 2) judgment).

4 The third category relates to the judicial reviews subsequent to the matters with which the present applications are concerned. Those are as follows:

(i). Lavery v. Judge Faughnan [2017 No. 37 J.R.]. In this matter, Barrett J. refused leave to the applicant to issue further judicial review proceedings pursuant to the Isaac Wunder order (see Lavery v. Judge Faughnan [2017] IEHC 661(Unreported, High Court, 1st November, 2017)).

(ii). Lavery v. G.S.O.C. [2017 No. 39 J.R.], in which leave to seek judicial review was refused.

(ii). Lavery v. Judge McLoughlin [2018 No. 5 J.R.]. In this matter Noonan J. refused leave to seek judicial review. The applicant has appealed that refusal to the Court of Appeal, Record No. 2018/27.

(iv). Lavery v. Judge McLoughlin [2018 No. 53 J.R.]. Again this was an ex parte refusal of leave to seek judicial review which has been appealed to the Court of Appeal, Record No. 2018/39.

The present notices of motion

5 The applicant now brings four proposed notices of motion, which he seeks liberty to issue pursuant to the Isaac Wunder order. Those applications are as follows.

6 Firstly in 2015 No. 619 J.R. the applicant seeks liberty to issue a motion to set aside my order of 9th May, 2015 substituting the D.P.P. for Judge Clyne as respondent to the proceedings. It seems to me that that is an inherently incidental and procedural decision which is subsumed by the final order and certainly cannot be revisited three years later. If the applicant had a difficulty with that procedural order, appeal was the appropriate remedy.

7 The second proposed motion is in proceedings 2016 No. 228 J.R. This proposes to seek the relief of setting aside my order of the 11th April, 2016 substituting the D.P.P. for Judge Lucey as respondent to the proceedings. Again, my previous comments apply to this relief as well. Appeal is the appropriate remedy and this is not a matter that can be revisited after a final order.

8 The next motion is an order in proceedings 2016 No. 346 J.R., which seeks to set...