Murphy v Min for Justice and Others

JurisdictionIreland
JudgeMr Justice Francis D Murphy
Judgment Date09 March 2001
Neutral Citation[2001] IESC 29
CourtSupreme Court
Docket Number[S.C. No. 134 of 2000]
Date09 March 2001

[2001] IESC 29

THE SUPREME COURT

Keane CJ

Murphy J

Murray J

Mcguinness J

Hardiman J

Record No 134/2000
MURPHY v. MIN FOR JUSTICE & ORS

Between:

Peter Murphy
Applicant

AND

The Minister for Justice, Equality and Law Reform, TheMinister for Finance and The Attorney General
Respondents

Citations:

COURTS OF JUSTICE ACT 1936 S65(1)

SUPREME COURT AND HIGH COURT (FEES) ORDER 1989 SI 341/1989 S4

SUPREME COURT AND HIGH COURT (FEES) ORDER 1989 SI 341/1989 S8

SUPREME COURT AND HIGH COURT (FEES) ORDER 1989 SI 341/1989 S10

CONSTITUTION ART 40.3

MACAULEY V MIN FOR POST AND TELEGRAPHS 1966 IR 345

MACGAIRBHITH V ATTORNEY GENERAL (AG) 1991 IR 412

BODDIE V CONNECTICUT 1971 401 US 371

COHEN V BENEFICIAL LOAN CORP 1949 337 US 541

SALIH V GENERAL ACCIDENT 1987 IR 628

HEALY, STATE V DONOGHUE 1976 IR 325

AIREY V IRELAND 1979– 80 2 EHRR 305

Synopsis

Constitutional Law

Constitutional; access to justice; imposition of costs in civil proceedings; locus standi; appellant, a person of moderate means, seeks to challenge subordinate legislation by which fees are imposed on particular transactions involved in High Court proceedings; whether Constitution implies any general prohibition on imposition of duties or charges in civil proceedings; whether impugned charges are unreasonable; whether two specific charges complained of by appellant presented a significant obstacle to his engaging in litigation having regard to other proceedings which he has pursued and in particular the appeal herein; whether appellant established necessary locus standi to maintain these proceedings; s. 65 (1), Courts of Justice Act, 1936; s. 4, Supreme Court and High Court (Fees) Order, 1989 (S.I. No. 341 of 1989).

Held: Appeal dismissed.

Murphy v. Minister for Justice - Supreme Court: Keane C.J., Murphy J., Murray J., McGuinness J., Hardiman J. - 09/03/2001 - [2001] 1 IR 95 - [2001] 2 ILRM 144

The applicant had challenged the imposition of certain fees in pursuing litigation. In particular the applicant cited examples of stamp duties required in order to file certain court documents. The applicant's judicial review proceedings were dismissed in the High Court. On appeal, the Supreme Court, Murphy J delivering judgment, held that the applicant had not proved that the relevant fees order was unconstitutional and dismissed the appeal.

1

Judgment of Mr Justice Francis D Murphydelivered the 9th day of March, 2001 [nem Diss]

2

In these proceedings the Applicant has challenged the subordinate legislation by which fees are imposed on particular transactions involved in proceedings in the High Court.

3

The Courts of Justice Act, 1936, s.65 (1) provides as follows:-

"It shall be lawful for the Minister for Justice, by order made with the consent of the Minister for Finance, to prescribe and from time to time as occasion requires vary or otherwise revise the fees to be charged in the several offices established by the Court Officers Act, 1926(No 27 of 1926), as amended by subsequent enactments (including this Act), and the persons by whom and the occasions on which such fees are to be paid and the officers by whom and the manner in which such fees are to be collected."

4

Orders have been made pursuant to that section from time to time but more particularly by an order entitled " Supreme Court and High Court (Fees) Order 1989 ( S.I. No. 341 of 1989)" (hereinafter referred to as "the Fees Order"). It provided (among other things) as follows:-

"(4) There shall be charged in the offices of the Supreme Court and the High Court and in the District Probate Registries to which the several Parts of the First Schedule to this Order relate, in respect of each item set out in the first column of that Schedule, the fee set out in the second column of that Schedule opposite the mention of the item in the said first column."

5

It appears from the Schedule to the Fees Order that a stamp duty of£7:00 is payable on the filing of an affidavit and a duty of£10:00 on the filing of a notice of motion. Attention wasalso drawn to the fact that a fee of £50:00 is payable on the filing of a notice of motion of appeal to the Supreme Court.

6

Peter Murphy, the Applicant/ Appellant herein, has challenged the imposition of those duties payable in respect of the filing of an affidavit or a notice of motion in the circumstances which are set out in a statement dated the 2nd day of September, 1999, made by Mr Murphy for the purpose of grounding an application to the High Court for judicial review. He explained that on the 29th May, 1997, he was confined to a cell at Kilmainham Courthouse against his will and without lawful justification. He instituted High Court proceedings (1998 No 2818p) on the 3rd day of March, 1998, in respect of that alleged wrongdoing. The defendants named in those proceedings are Judge Gillian M Hussey and Garda Stephen Cunningham.. The plaintiff's claim was for damages as against both of the defendants for unlawful imprisonment for nearly six hours on the 29th day of May, 1997.

7

On the 11th March, 1999, the Chief State Solicitor entered an appearance on behalf of both of the defendants.

8

A statement of claim appears to have been delivered on the 30th March, 1998, and an amended statement of claim on the 6th May, 1998. On the 25th June, 1998, a notice for particulars was served on behalf of the defendants. Although a defence was not delivered no application for judgment in default was brought by Mr Murphy. He claims that the stamp duties payable on the notice of motion and grounding affidavits precluded him from adopting that course.

9

Instead he sought, and obtained, on the 4th October, 1999, leave to apply by way of judicial review for a declaration that Sections 8 and 10 of Part 3 of the Fees Order (the fees on notices of motion and affidavits) were unconstitutional "because the applicant is an impoverished person the imposition of court fees impedes him from proceeding with the case". In the statement grounding the application for judicial review and subsequent affidavits Mr Murphy has stated that "on occasion" he is impecunious and that his sole income is a social welfare payment from the Department of Social Welfare amounting £67:50p per week. In addition he did say that he won £5,000 - apparently in the year 1998 - on the Lotto. In his affidavit sworn on the 20th June, 2000, he summarised his position in the following terms:-

"From the 14th of July 1998 until the 13th October 1999 there were numerous occasions on which I had not got £7:00 and there was further occasions on which I could not afford to pay £7:00 or the£10:00 stamp duty required to file an affidavit and the notice of motion necessary to apply for a judgment in default of defence in High Court 1998 Number 2818p."

10

The application for judicial review was heard by Mr Justice Butler on the 19th day of May, 2000, when he declined to grant the relief sought. The essence of the decision by Butler J is contained in the final paragraph of his report which is expressed in the following terms:-

"I refused the relief sought on the basis that I did not accept that the provisions complained of impeded the applicant's capacity to prosecute the said proceedingsand,...

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5 cases
  • Brandley v Deane
    • Ireland
    • Supreme Court
    • 15 November 2017
    ...bring proceedings, is an unenumerated personal right guaranteed by Article 40.3.1° of the Constitution ( Murphy v. Minister for Justice [2001] I.R. 95): accordingly, such is a fundamental right of every person, citizen or not, within this jurisdiction ( Murphy v. Green [1990] 2 I.R. 566 at......
  • S. Ltd v A. & F
    • Ireland
    • Court of Appeal (Ireland)
    • 5 August 2020
    ...bring proceedings, is an unenumerated personal right guaranteed by Article 40.3.1° of the Constitution ( Murphy v. Minister for Justice [2001] 1 I.R. 95): accordingly, such is a fundamental right of every person, citizen or not, within this jurisdiction ( Murphy v. Greene [1990] 2 I.R. 566 ......
  • Shaw v Minister for Justice and Equality
    • Ireland
    • High Court
    • 9 March 2018
    ...applicant access to the courts was considered by the Supreme Court in Murphy v. the Minister for Justice, Equality and Law Reform [2001] 1 I.R. 95. In that case, the Supreme Court held, inter alia, that the Constitution did not imply any general prohibition on the imposition of duties or ch......
  • Barrett, t/a Corporate Recovery Services v Beglan and Another
    • Ireland
    • High Court
    • 18 June 2009
    ...RSC 1883 O.65 r26(A)(2) AIREY v IRELAND 1979-80 2 EHRR 305 MAC GAIRBHITH v AG 1991 2 IR 412 1991/13/3158 MURPHY v MIN FOR JUSTICE & ORS 2001 1 IR 95 2001 2 ILRM 144 2003/39/9312 SUPREME COURT & HIGH COURT (FEES) ORDER 1989 SI 341/1989 ART 8 SUPREME COURT & HIGH COURT (FEES) ORDER 1989 SI ......
  • Request a trial to view additional results
1 books & journal articles
  • Independence, accountability and the irish judiciary
    • Ireland
    • Irish Judicial Studies Journal No. 1-8, January 2008
    • 1 January 2008
    ...is an unenumerated constitutional right (McAuley v. Minister for Posts & Telegraphs [1966] I.R. 345; Murphy v. Minister for Justice [2001] 1 I.R. 95) and is also protected by Article 6 of the ECHR (Golder v. UK (1979-80) 1 E.H.R.R. 524; Juristic and Collegium Mehereau v. Austria (2006), App......

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