M. v M. (Judicial review: set aside leave)

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 06 March 2023
• Neutral Citation: [2023] IEHC 95
• Court: High Court
• Docket Number: 2022 No. 722 JR

Between

G.M.

Applicant

and

I.M.

Respondent

[2023] IEHC 95

2022 No. 722 JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Leave – Disclosure – Respondent seeking to set aside the grant of leave in judicial review proceedings – Whether the applicant failed to disclose all material facts to the court at the time of the ex parte application for leave

Facts: The applicant instituted judicial review proceedings on 19 August 2022 seeking to challenge certain orders made by the Circuit Court in family law proceedings. The Circuit Court orders were made in the context of an appeal from the District Court. The impugned District Court order dated from 8 December 2015. The appeal was not finally determined until 23 May 2022. The judicial review proceedings were addressed solely to the order directing the payment of outstanding maintenance in the sum of €3,265. The gravamen of the complaint made in the judicial review proceedings was that the Circuit Court conducted the hearing on 23 May 2022 in contravention of the applicant’s constitutional right to fair procedures. First, it was alleged that the Circuit Court admitted into evidence, and relied upon, material which was neither provided on affidavit nor adduced in the course of oral testimony. Secondly, it was alleged that the Circuit Court did not permit cross-examination when requested by counsel for the applicant. Thirdly, it was alleged that the Circuit Court denied the applicant the right to submit evidence supporting his claim and denying the claims against him. The respondent issued a motion on 20 October 2022 seeking to set aside the grant of leave in the judicial review proceedings. The application to the High Court was advanced on the basis that the applicant failed to disclose all material facts to the court at the time of the ex parte application for leave. It was also alleged that the applicant was in breach of an order restraining him from taking further proceedings without the prior permission of the Circuit Court, i.e. a so-called Isaac Wunder order.

Held by Simons J that it is imperative that a person who seeks to invoke the High Court’s supervisory jurisdiction by way of judicial review make material disclosure at the time of the ex parte application for leave; the supervisory jurisdiction is intended to vindicate the rule of law by allowing for the correction by the High Court of significant errors made by lower courts and public authorities. He held that it is an abuse of process for an individual to seek to invoke this supervisory jurisdiction in circumstances where the lower court or public authority has acted lawfully by exaggerating events to create the false impression of significant errors. He held that the misstatements in, and omissions from, the statement of grounds and verifying affidavit could not be overlooked as merely technical or peripheral; they went to the very heart of the applicant’s case. Simons J held that the applicant sought and obtained leave to apply for judicial review from the High Court by misrepresenting the nature of the hearing before the Circuit Court; the description of that hearing as per the statement of grounds and verifying affidavit was grossly misleading and conveyed the false impression that the Circuit Court had acted in breach of fair procedures and in breach of the basic rules of evidence. Simons J held that he would not have made his order granting leave to apply for judicial review had an accurate description of the Circuit Court hearing been provided to him at the time of the ex parte application. He held that the applicant’s case did not meet the threshold prescribed for the grant of leave. Simons J held that the pleaded case, namely that the Circuit Court hearing had been conducted in breach of fair procedures, was untenable. Simons J concluded that the judicial review proceedings represented an abuse of process. Accordingly, he proposed setting aside the grant of leave and dismissing the proceedings.

Simons J’s provisional view was that the respondent was entitled to recover the costs of the proceedings as against the applicant having regard to the fact that she had been entirely successful in having the proceedings dismissed and to the conduct of the applicant in failing to make material disclosure.

Application granted.

JUDGMENT of Mr. Justice Garrett Simons delivered on 6 March 2023

INTRODUCTION

1 This judgment is delivered in respect of an application to set aside the grant of leave in judicial review proceedings. The application to set aside the grant of leave is advanced on the basis that the applicant for judicial review failed to disclose all material facts to the court at the time of the ex parte application for leave. It is also alleged that the applicant is in breach of an order restraining him from taking further proceedings without the prior permission of the Circuit Court, i.e. a so-called Isaac Wunder order.

PROCEDURAL HISTORY

2 These judicial review proceedings seek to challenge certain orders made by the Circuit Court in family law proceedings. The family law proceedings are taken between the same parties as in these judicial review proceedings. The applicant and the respondent had formerly been in an intimate relationship and have a child together. The parties are now estranged and there has been long running litigation in respect of matters such as child access and maintenance payments. For ease of exposition, the parties are described in this judgment by reference to their role in the judicial review proceedings (as opposed to in the family law proceedings).

3 The Circuit Court orders were made in the context of an appeal from the District Court. It is an indication of the protracted nature of the litigation that the impugned District Court order dates from 8 December 2015, yet the appeal was not finally determined until 23 May 2022. The family law proceedings had been listed before the Circuit Court for hearing on more than forty occasions.

4 The Circuit Court order of 23 May 2022 addresses the following matters. First, certain access arrangements in respect of the parties' child were adjusted. Secondly, the applicant was directed to pay outstanding maintenance to the respondent. It appears from the oral evidence given to the Circuit Court that the applicant had previously been directed to pay maintenance on a weekly basis but had failed to make a number of payments. The Circuit Court ordered that a sum of €3,265 be paid in respect of these arrears. The Circuit Court also determined that the applicant should not be required to make any future periodical payments, but he was directed instead to make ad hoc contributions towards the child rearing expenses incurred by the respondent. Thirdly, the applicant was directed to pay a portion of the legal costs incurred by the respondent in the family law proceedings, which costs were measured in an overall sum of €140,720. The applicant was directed to pay half of these costs, i.e. a sum of €70,360 (“ the costs order”). Finally, the Circuit Court purported to make an order restraining the applicant from taking any further proceedings in the District Court, Circuit Court or any other Court without the leave of the Circuit Court. A restraining order of this type is often referred to as an “ Isaac Wunder order”, so named for the judgment in Wunder v. Hospital Trust (1940) Ltd, unreported, Supreme Court, 15 January 1968.

5 These judicial review proceedings are addressed solely to the order directing the payment of outstanding maintenance in the sum of €3,265. For completeness, however, this judgment will also consider the possibility that the applicant had intended to challenge the costs order. It should be emphasised that a challenge to the costs order does not form part of his pleaded case and is considered in this judgment de bene esse.

6 This court has had the benefit of a transcript of the hearing before the Circuit Court on 23 May 2022. This transcript only became available in February 2023, that is many months after the ex parte application for leave to apply for judicial review.

7 These judicial review proceedings were instituted on Friday, 19 August 2022. On that date, a statement of grounds was filed in the Central Office of the High Court, together with a verifying affidavit sworn by the applicant. An ex parte application for leave to apply for judicial review was then made to me as the vacation judge sitting on that date. The application was said to be urgent on the basis that the three-month time-limit prescribed for the taking of judicial review proceedings under Order 84, rule 21 of the Rules of the Superior Courts was set to expire.

8 The gravamen of the complaint made in the judicial review proceedings is that the Circuit Court conducted the hearing on 23 May 2022 in contravention of the applicant's constitutional right to fair procedures. The three principal complaints made are as follows. First, it is alleged that the Circuit Court admitted into evidence, and relied upon, material which was neither provided on affidavit nor adduced in the course of oral testimony. Secondly, it is alleged that the Circuit Court did not permit cross-examination when requested by counsel for the applicant. Thirdly, it is alleged that the Circuit Court denied the applicant the right to submit evidence supporting his claim and denying the claims against him. There is no direct challenge to the making of the Isaac Wunder order.

9 The case is elaborated upon as follows in the applicant's verifying affidavit (at paragraphs 4 to 7):

“The aforementioned appeal was...