Mm v Loc
| Jurisdiction | Ireland |
| Judge | Ms. Justice Niamh Hyland |
| Judgment Date | 14 March 2022 |
| Neutral Citation | [2022] IEHC 196 |
| Court | High Court |
| Docket Number | RECORD NO: 2019/515JR |
RECORD NO: 2019/515JR
THE HIGH COURT
Judicial review – Maintenance – Breach of fair procedures – Applicant seeking judicial review of a decision of a Circuit Judge – Whether the Circuit Judge acted in breach of fair procedures and constitutional justice
Facts: The applicant applied to the High Court for judicial review of a decision of a Circuit Court Judge of 10 July 2019, whereby he dismissed an appeal from an Order of District Court Judge Ní Chondúin of 8 February 2018 to increase the amount of maintenance payable by the applicant in respect of his son from €60 per week to €125 per week. The District Court Order was made in the absence of the applicant, in circumstances where he said he was never served with the summons and knew nothing of the hearing. He equally argued that he was not served with the District Court Order, he knew nothing about it until 25 April 2018 and did not see it until 20 June 2018 when he was arrested in the context of its enforcement. The applicant argues that the Circuit Judge acted in breach of fair procedures and constitutional justice in dismissing his appeal against the District Court Order by: (a) failing to hear or adequately hear his submissions on the issue of the service of the summons in respect of the District Court hearing; and (b) refusing to adjourn the matter to allow the applicant to obtain legal representation from the Legal Aid Board and to prepare an affidavit of means, and determining the matter without a substantive hearing.
Held by Hyland J that, having read the transcript, it was apparent that the Circuit Judge did not permit the applicant to make substantive submissions in relation to the alleged defect in service despite his request to do so; further, having refused an adjournment to allow the applicant to file an updated affidavit of means, the Judge dismissed the appeal without substantively adjudicating upon it, on the basis that he considered it would be preferable, due to the elapse of time, for the applicant to seek to vary the Order of 8 February 2018 in the District Court rather than continue with the appeal. Hyland J held that it was clear from the transcript that the Judge did so from the best of motives i.e. in the belief that it was more advantageous for the applicant to obtain a fresh decision on maintenance in the District Court, rather than appeal an Order that was 18 months old at the date of the appeal; nonetheless, the applicant was entitled to have his appeal heard and substantively determined, both in relation to his service point and on the substantive question of maintenance.
Hyland J held that, in circumstances where the applicant was neither heard nor had his appeal substantively determined, the Order of 10 July 2019 should be quashed and the matter remitted to the Circuit Court.
Application granted.
JUDGMENT of Ms. Justice Niamh Hyland delivered on 14 March 2022
This is an application for judicial review of a decision of a Circuit Court Judge of 10 July 2019, whereby he dismissed an appeal from an Order of District Court Judge Ní Chondúin of 8 February 2018 to increase the amount of maintenance payable by the applicant in respect of his son from €60 per week to €125 per week. The District Court Order was made in the absence of the applicant, in circumstances where he says he was never served with the summons and knew nothing of the hearing. He equally argues he was not served with the District Court Order, that he knew nothing about it until 25 April 2018 and did not see it until 20 June 2018 when he was arrested in the context of its enforcement.
The applicant argues that the Circuit Judge acted in breach of fair procedures and constitutional justice in dismissing his appeal against the District Court Order by (a) failing to hear or adequately hear his submissions on the issue of the service of the summons in respect of the District Court hearing and (b) refusing to adjourn the matter to allow the applicant to obtain legal representation from the Legal Aid Board and to prepare an affidavit of means, and determining the matter without a substantive hearing.
Having read the transcript, it is unfortunately apparent that the Circuit Judge did not permit the applicant to make substantive submissions in relation to the alleged defect in service despite his request to do so. Further, having refused an adjournment to allow the applicant to file an updated affidavit of means, the Judge dismissed the appeal without substantively adjudicating upon it, on the basis that he considered it would be preferable, due to the elapse of time, for the applicant to seek to vary the Order of 8 February 2018 in the District Court rather than continue with the appeal. It is clear from the transcript that he did so from the best of motives i.e. in the belief that it was more advantageous for the applicant to obtain a fresh decision on maintenance in the District Court, rather than appeal an Order that was 18 months old at the date of the appeal.
Nonetheless, the applicant was entitled to have his appeal heard and substantively determined, both in relation to his service point and on the substantive question of maintenance. In circumstances where he was neither heard nor had his appeal substantively determined, I conclude the Order of 10 July 2019 should be quashed and the matter remitted to the Circuit Court.
The applicant and respondent are the father and mother of a young man who I will refer to as Brian. Brian was born on 2 July 2003 and is now 18. The applicant does not appear to have ever lived with Brian and his mother but has consistently paid maintenance in respect of Brian. A maintenance Order in being since 2011 was varied on 18 October 2016 and affirmed by an Order of the Circuit Court on 20 June 2017 in the amount of €60 per week. The subsequent events that give rise to these proceedings are best set out in a chronology.
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• 28 November 2017: Summons issued by respondent to vary maintenance Order of 18 October 2016.
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• 8 February 2018: Order of the District Court varying maintenance Order to increase weekly payment to €125 made in absence of applicant.
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• 25 April 2018: Garda McSweeney served applicant with a warrant of arrest alleging arrears of maintenance (warrant referred to the 2011 maintenance Order rather than the 2018 Order).
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• 20 June 2018: Applicant arrested for failure to comply with the Order and brought to Cork District Court. Received copy of the Order of 8 February 2018.
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• 11 September 2018: Hearing on enforcement of the Order of 8 February 2018 before the District Court, including the question of service of the summons and the Order on the applicant. Adjourned to 28 November 2018.
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• 28 November 2018: Adjourned hearing resumed before Judge Lucey, who granted an extension of time to the applicant to appeal the Order of 8 February 2018 to the Circuit Court.
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• 28 November 2018: Notice of appeal lodged.
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• 10 July 2019: Appeal heard and dismissed before the Circuit Court.
No stay was placed on the Order of 8 February 2018 at any stage. The applicant continued to pay the sum of €60 per week consistently as he had done since 2016 but did not increase the amount after he learned of the terms of the Order of 8 February 2018. Arrears therefore accrued from 8 February 2018 to 2 July 2021, being the date upon which Brian turned 18.
On 29 July 2019 Mr. Justice Jordan granted leave for judicial review grounded upon the affidavit of the applicant sworn on 22 July 2019. Leave was granted in respect of two of the reliefs sought by the applicant, namely an Order of certiorari quashing the decision of the Circuit Judge made on 10 July 2019 and an Order for costs, expenses and damages. The applicant was at this stage unrepresented. The applicant filed a supplemental affidavit sworn 31 July 2019. On 9 September 2019 the applicant filed a further notice of motion seeking an Order to join LOC as a notice party, grounded on a further affidavit he swore on the same date.
On 4 January 2021 a notice of appointment of solicitor was filed identifying that Blanchardstown Law Centre had been appointed as solicitor for the applicant. On 9 June 2021 the applicant filed a notice of motion seeking orders reconstituting the proceedings, naming LOC as a respondent and striking out the proceedings as against the Circuit Judge.
On 14 June 2021, Mr. Justice Barrett reconstituted the proceedings, naming LOC as the legitimus contradictor and respondent. On 17 June 2021 the respondent filed her statement of opposition, relying upon her affidavit of 12 May 2021. On 23 July 2021 the applicant swore an affidavit replying to the respondent's affidavit of 12 May 2021.
It is important to describe various exchanges between the applicant and the Circuit Judge and to identify the substantive findings of the Circuit Judge that emerge from the transcript of the hearing.
First, the applicant had brought a motion seeking to prevent the respondent from bringing any further applications to vary maintenance. The Circuit Judge refused that application on the basis that he could not constrain a person's access to the Court.
Next, when the applicant raised the failure to serve him with the summons to appear at the hearing in the District Court on 8 February 2018 and his consequent absence, the Circuit Judge concluded that the service would have been checked by the Court and refused to hear the ground of appeal in relation to service:
“JUDGE: Now, what is the position with regard to your appeal against that order?
MR M: Okay. Okay, okay. What happened, your honour, is I was never served.
JUDGE: With what, sorry?
MR M: I was never served notification of the hearing.
JUDGE: Sorry, what hearing are we talking about?
MR M: The hearing...
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