MAU v Minister for Justice

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Hogan
• Judgment Date: 09 February 2011
• Neutral Citation: [2011] IEHC 95
• Date: 09 February 2011
• Docket Number: [2009 No. 881 JR]

U (MA) & Ors v Min for Justice (No. 2)

JUDICIAL REVIEW

BETWEEN

M. A. U., A. M. U., O. A. U. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND, M. A. U.), E. A. U. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND, M. A. U.), A. O. U. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND, M. A. U.), AND A. A'A. O. U. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND, M. A. U.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM (NO.2)

RESPONDENT

[2011] IEHC 95

[No. 881 J.R./2009]

THE HIGH COURT

PRACTICE AND PROCEDURE

Pleadings

Amendment - Proceedings - Functus officio - Whether amendment of pleadings permitted post judgment - Whether amendment permitted where new cause of action introduced by amendment - Wildgust v Bank of Ireland [2001] 1 ILRM 24 and Stewart v Engel [2000] 1 WLR 2268 distinguished; Cox v Electricity Supply Board (No.2) [1943] IR 231 applied - Rules of the Superior Courts 1986 (SI 15/1986), O 28, r 1 - Amendment refused (2009/881JR - Hogan J 9/2/2011) [2011] IEHC 95

AU(M) v Minister for Justice

Facts The applicants had already been refused leave to apply for judicial review in a judgment delivered by Hogan J on the 13th December, 2010. In that case it was held that effect of s. 3(1) of the Immigration Act 1999 was that once a deportation order tookt effect, the subject of that order must endure a life long exclusion from the State, subject only to the mitigating effects of s. 3(11) of the 1999 Act and the power of the Minister to revoke a deportation order. After the delivery of the previous judgment the applicants now sought to amend their pleadings to challenge the constitutionality of such a life long ban. They also sought to adduce arguments relating to the European Convention of Human Rights Act 2003. The issue fell to be decided as to whether the Court still had jurisdiction to permit an amendment of pleadings given that judgment had already been given although the order had yet to be perfected.

Held by Hogan J in refusing the application to amend proceedings. A judge of the High Court had the jurisdiction to permit an amendment of the pleadings at any point during the currency of the proceedings. The proceedings so far as they concerned the validity of the deportation order had been disposed of by the court and they could not be said to be current in any real or meaningful sense. There was no jurisdiction to now permit an amendment which would bear on the validity of the deportation order given that the judge was functus officio on that very issue. The proposed amendment of the pleadings would effectively introduce a new cause of action which, if it succeeded, would lead to a new judgment on the validity of the deportation order.

Reporter: R.F.

U (MA) & ORS v MIN FOR JUSTICE (NO 1) UNREP HOGAN 13.12.2010 2010 IEHC 492

IMMIGRATION ACT 1999 S3(1)

IMMIGRATION ACT 1999 S3(11)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(1)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

RSC O.28 r1

RSC O.125 r1

WILDGUST v BANK OF IRELAND 2001 1 ILRM 24

RSC O.58 r8

HUGHES v O'ROURKE 1986 ILRM 538

RSC 0.58 r2

COX v ELECTRICITY SUPPLY BOARD (ESB) (NO.2) 1943 IR 231

STEWART v ENGEL 2000 1 WLR 2268

1 1. In a judgment delivered by me on 13 ^th December, 2010, I refused the applicants leave to apply for judicial review: see MAU v. Minister for Justice, Equality and Law Reform [2010] IEHC 492. The net question which arose for consideration in that judgment concerned the interpretation of s. 3(1) of the Immigration Act 1999 ("the 1999 Act") and the effect of a deportation order made under that sub-section. I held that it was clear beyond argument that the effect of s. 3(1) was that once the deportation order takes effect, the subject of that order must endure a life long exclusion from the State, subject only to the mitigating effects of s. 3(11) and the power of the Minister for Justice, Equality and Law Reform to revoke adeportation order already made. In those circumstances, since the applicants had effectively abandoned all other points and as the statutory interpretation issue had been resolved against them, I ruled that I had no alternative but to refuse leave to apply for judicial review insofar as their challenge to the validity of the deportation order was concerned.

2 2. Subsequent to the delivery of this judgment, the applicants then applied to amend their pleadings to enable them to challenge the constitutionality of s. 3(1) of the 1999 Act on the ground that it effects a disproportionate interference with their constitutional rights by reason of the life long ban. In the alternative, they also seek leave to enable them to seek a declaration of incompatibility under s. 5(1) of the European Convention of Human Rights Act 2003.

3 3. The questions which now arise are (i) does this Court have jurisdiction to permit an amendment of pleadings at this stage and (ii) if the answer is in the affirmative, whether such leave to amend the pleadings should be granted? I propose to consider these questions in turn.

Does the Court have a Jurisdiction to Amend the Pleadings at this Stage?

4 4. Although judgment has been delivered, the order has yet to be perfected, since the twin issues of costs and the question of whether this Court should grant a certificate of leave to appeal to the Supreme Court under s. 5 of the Illegal Immigrants (Trafficking) Act 2000 remain to be determined. This Court is nonetheless functus officio so far as the questions raised in the first judgment are concerned.

5 5. This brings into focus the question of the Court's jurisdiction in the matter. Ord. 28, r.1 of the Rules of the Superior Courts provides that:-

"The Court...