Murtagh v Judge Kevin Kilrane

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 14 June 2017
• Neutral Citation: [2017] IEHC 384
• Docket Number: 2015 No.637JR
• Court: High Court
• Date: 14 June 2017

BETWEEN:

JOSEPH MURTAGH

APPLICANT

– AND –

JUDGE KEVIN KILRANE,

COMMISSIONER OF AN GARDA SÍOCHÁNA,

IRELAND,

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2017] IEHC 384

Barrett J.

2015 No.637JR

THE HIGH COURT

Practice & Procedures – O. 84, r. 22(4)(1) of the Rules of the Superior Courts 1986 – Duty to disclose – Administration of justice

Facts: The applicant had filed an application in the substantive judicial review proceedings. The applicant sought an order for requiring the respondents to take such actions as were required to comply with its statutory obligations to provide the relevant documentation.

Mr. Justice Max Barrett refused the applicant's application. The Court held that the applicant had made bare averments without specifying the nature of documents that needed to be disclosed by the respondents. The Court laid down certain principles in relation to the duty of public authorities for making the disclosure of documents. The Court noted that the object of a public body in judicial review proceedings should be to assist the Court and made candid disclosure by way of an affidavit. The Court observed that the duty of candour had rested on the respondent to reveal the relevant material and exercise due diligence in investigating what material was available.

JUDGMENT of Mr Justice Max Barrett delivered on 14th June, 2017.

I: Background

1 Mr Murtagh has commenced judicial review proceedings seeking:

(1) a declaration that the first-named respondent wrongfully refused to recuse himself from dealing in any manner with the prosecutions arising from certain summonses;

(2) an order of certiorari quashing a particular decision of the first-named respondent to send the case to a different judge;

(3) a declaration that the prosecutions in issue proceed before the judge who ordinarily would have heard the case following the date on which the first-named respondent ought (it is claimed) to have recused himself (whom Mr Murtagh in his amended statement of grounds styles the ‘natural judge’);

(4) an order prohibiting the second-named respondent from prosecuting the cases featured in the summonses aforesaid except before the so-called natural judge or such other judge as the President of the District Court may designate; and

(5) certain ancillary reliefs.

2 The crux of matters so far as the grounds for recusal is concerned, at least per the statement of grounds, appears to be that ‘[Mr Murtagh] is a former client of the 1st named Respondent [from the latter's days as a practising solicitor] and they parted on bad terms.’ Objection also appears to be taken to the fact that, when recusing himself on 20th October, 2015, the learned District Judge stated that ‘I have set a date for hearing before another Judge…on the 27th November’. Among Mr Murtagh's concerns, as the court understands them, is that the learned District Judge may himself have arranged who would sit as substitute judge and, per the statement of grounds ‘ he [Mr Murtagh] does not know what [the learned District Judge]… may have told him [the substitute judge] about the case or about his previous engagements with Mr Murtagh’.

3 The mainstay of the judicial review application will be heard at some future stage; the substantive matters at issue in that application are not a matter for this Court to adjudicate upon and it makes no comment or finding in relation to them. What is before the court at this time is an application that arises consequent upon the filing of the statement of opposition in the judicial review proceedings. That statement of opposition was filed on behalf of the respondents on 29th April, 2016, together with two affidavits, being (a) an affidavit sworn by the District Court Clerk who appears to have sat with the first-named respondent on the relevant dates, verifying the facts set out in the respondents' statement of opposition, and (b) an affidavit sworn by the secretary to the President of the District Court concerning the receipt of a telephone call from the Clerk referred to at (a), and swearing to the process whereby an alternative judge was assigned to hear the summonses concerning Mr Murtagh.

4 Following receipt of the documentation aforesaid, the solicitors for Mr Murtagh appear to have been concerned by what they continue to perceive to be the paucity of supporting documentation provided by the respondents. By letter of 26th May, 2016, Mr Murtagh's solicitors wrote to the Chief State Solicitor's Office (CSSO) seeking further documentation concerning the within proceedings. In order to better understand the motion now brought, it is useful to recite certain relevant extracts from that letter and the ensuing correspondence:

(1) Letter of 26th May, 2016, from Mr Murtagh's solicitors to CSSO.

‘We refer to the Statement of Opposition in the above proceedings…. We would draw your attention to the obligation of full disclosure on Respondents in judicial reviews, as clarified in pp. 307 and 316, paras 21 and 49 of the Supreme Court's decision in O'Neill v. Governor of Castlerea Prison [2004] 1 I.R. 299 .

We call on your client to supply the full particularity and exhibit all related documentary material concerning the opposition they have proffered’.

(2) Letter of 1st June, 2016, from CSSO to Mr Murtagh's solicitors.

‘As you are aware two Affidavits have been delivered with the Statement of Opposition and we fail to see the relevance of the decision in O'Neill…in the circumstances of this case.

Unfortunately, it is not at all clear from your letter, what it is that the Applicant is seeking. Perhaps you would set out clearly and precisely what it is you are looking for and the basis upon which you are looking for the same so that we are at least in a position to consider your request and make a decision in relation thereto.’

(3) Letter of 14th June, 2016, from Mr Murtagh's solicitors to CSSO.

‘We believe we have adequately identified the deficiency in your client's opposition papers by drawing your attention to what the Supreme Court holds is required of Respondents. There is a remarkable deficiency of documentary evidence supporting the broad assertions contained therein. Please remedy that deficiency, taking account of your client's full disclosure “warts and all” obligation, so that it should not be necessary for our client to seek discovery or apply to have the case dealt with on oral evidence’.

II: Reliefs Now Sought

5 Arising from the foregoing, Mr Murtagh has issued a notice of motion seeking the following reliefs:

(1) an order, it seems (there appear to be certain words missing from the notice of motion), requiring that the CSSO take such actions as are required to comply with the decision of the Supreme Court in O'Neill, which order would include but not be limited to requiring that the respondents file supplementary affidavits that properly exhibit all documents in their power, possession or procurement that they, by their officers, servants and/or agents have relied upon to ground the assertions in the statement of opposition, including but not limited to (I) the supporting documentation that justifies the assertions of the legal and/or factual circumstances and consequences as deposed to by the secretary to the President of the District Court; (II) the supporting documentation that justifies the assertions of the legal and/or factual circumstances and consequences as deposed to by the District Court Clerk who sat with the learned District Court judge on the relevant dates;

(2) an order pursuant to O. 84, r.22(4)[1] of the Rules of the Superior Courts 1986, as amended (the “RSC”), that results in compliance with the said rule, which order would include but not be limited to requiring that the respondents file the supplementary affidavits referred to at (1);

(3) an order pursuant to O. 40, r.4[2] of the RSC that results in compliance with the said rule, which order would include but not be limited to requiring that the respondents file the supplementary affidavits referred to at (1);

(4) an order striking out the statement of opposition as filed by the respondents for non-compliance with the jurisprudence of the Supreme Court, including but not limited to the decision in O'Neill, as well as O. 84, r.22(4) and O. 40, r.4 of the RSC;

(5) such further or other orders and/or consequential directions that seem meet and just to the court; and

(6) certain ancillary relief.

[1] Order 84 is headed ‘ Judicial Review and Orders Affecting Personal Liability’. Order 84, rule 22(4) provides as follows:

‘Any respondent who intends to oppose the application for judicial review by way of motion on notice shall within three weeks of service of the notice on the respondent concerned on such other period as the Court may direct file in the Central Office a statement setting out the grounds for such opposition and, if any facts are relied on therein, an affidavit [in a prescribed form]…verifying such facts, and serve a copy of that statement and affidavit (if any) on all parties. The statement shall include the name and registered place of business if the respondent's solicitor (if any).’

[2] Order 40 is headed ‘ Affidavits’. Order 40, rule 4 provides as follows:

‘Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, and shall state his means of knowledge thereof, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted. The costs of any affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall not be allowed.’

6 At the hearing of the within application, there was not much mention of the rules of court on which reliance is placed. Rather, without resiling in any way from the reliefs sought pursuant to the RSC, counsel for Mr...