Padraig Burke v Courts Service
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 31 July 2013 |
| Neutral Citation | [2013] IEHC 377 |
| Court | High Court |
| Date | 31 July 2013 |
[2013] IEHC 377
THE HIGH COURT
BETWEEN
CONSTITUTION ART 28
DELLWAY INVESTMENTS LTD v NAMA 2011 4 IR 1
COURTS OFFICERS ACT 1926 S36
COURTS OFFICERS ACT 1945 S10
SUCCESSION ACT 1965 S129
MILES v WAKEFIELD COUNCIL 1985 1 WLR 822
PERCY v CHURCH OF SCOTLAND 2006 2 AC 28
COURTS SERVICE ACT 1998 S20(1)
LECONFIELD v THORNELY 1926 AC 10
COURTS SERVICE ACT 1926 S37
BENNION STATUTORY INTERPRETATION 5ED 2008 304
COURTS OFFICERS ACT 1945 S2
COURTS OFFICERS ACT 1945 S3
COURTS OFFICERS ACT 1945 S2(1)
DPP v GREY 1986 IR 317
EXCISE MANAGEMENT ACT 1827 S8 (UK)
CRIMINAL JUSTICE ACT 1951
WEST HAM (CHURCH WARDENS & OVERSEERS) v FOURTH CITY MUTUAL BUILDING SOCIETY 1892 1 QB 654
SHEEDY v INFORMATION COMMISSIONER 2005 2 IR 272 2005 2 ILRM 374 2005 54 11310 2005 IESC 35
FREEDOM OF INFORMATION ACT 1997
EDUCATION ACT 1998 S53
FREEDOM OF INFORMATION ACT 1997 S32
BENNION STATUTORY INTERPRETATION 5ED 293
EDUCATION ACT1998 S58
GARVEY v IRELAND 1981 1 IR 75
COURTS SERVICE ACT 1998 S20(1)
INTERNATIONAL FISHING VESSELS LTD v MIN FOR MARINE (NO 2) 1991 2 IR 93
ASSOCIATION OF GENERAL PRACTITIONERS v MIN FOR HEALTH 1995 1 IR 382 1995 2 ILRM 481 1995 1 86
DE SMITH JUDICIAL REVIEW 6ED 2007 PAR 8-021
BRADY v CAVAN CO COUNCIL 1999 4 IR 99 2000 1 ILRM 81 1999 3 445
EDUCATION ACT 1998 S9
EDUCATION ACT 1998 S31
COURTS OFFICERS ACT 1926 S37
EDUCATION ACT 1998 S24(1)
DODD STATUTORY INTERPRETATION IN IRELAND 2008 90
DODD STATUTORY INTERPRETATION IN IRELAND 2008 92
CORK CO COUNCIL v WHILLOCK 1993 1 IR 231
DODD STATUTORY INTERPRETATION IN IRELAND 2008 4.83
COURTS & COURTS OFFICERS ACT 2002 S43(A)
COURTS & COURTS OFFICERS ACT 2002 S9
DR FOSTERS CASE 77 ENG REP 1222(KB 1614)
PROFESSIONS
County registrar
Powers and functions of County Registrar - Powers and functions of Courts Service - Statutory interpretation - Non-textual amendment - General rule regarding amending legislation - Application for declarations relating to powers and functions of applicant including declaration role of applicant not reduced by Courts Services Act 1998 - Whether s 20 of Courts Service Act 1998 repealed earlier legislation by implication - Whether power to manage and control staff in Courts Service vested in Chief Executive Officer - Whether Chief Executive Officer controlled functions of County Registrars insofar as those functions related to a function of the Service - Whether Courts Service calculated to undermine plaintiff in his functions - Whether lack of respect for plaintiff - Whether unfair procedures in dealing with plaintiff - Sheedy v Information Commissioner [2005] IESC 35, [2005] 2 IR 272 applied - Dellway Investments Ltd v Nama [2010] IEHC 364, [2011] IESC 4, [2011] IESC 13 & [2011] IESC 14, [2011] 4 IR 1; Miles v Wakefield Council [1985] 1 WLR 822; Percy v Church Of Scotland [2005] UKHL 73, [2006] 2 AC 28; Lord Leconfield v Thornely [1926] AC 10; DPP v Grey [1986] IR 317; Church Wardens, & c, of West Ham v Fourth City Mutual Building Society [1892] 1 QB 654; Garvey v Ireland [1981] 1 IR 75; International Fishing Vessels Ltd v Minister For Marine (No 2) [1991] 2 IR 93; Association of General Practitioners Ltd v Minister for Health [1995] 1 IR 382; Brady v Cavan County Council [1999] 4 IR 99; Cork County Council v Whillock [1993] 1 IR 231 and Foster's Case (1614) 77 ER 1222 considered - Courts Officers Act 1926 (No 27), ss 10, 36 and 37 - Court Officers Act 1945 (No 25), ss 2 and 3 - Criminal Justice Act 1951 (No 2) - Succession Act 1965 (No 27), s 129 - Freedom of Information Act 1997 (No 13), s 32 - Courts Service Act 1998 (No 8), s 20(1) - Education Act 1998 (No 51), ss 9, 24, 31, 53 and 58 - Courts and Court Officers Act 2002 (No 15), ss 9 and 43(A) - Constitution of Ireland Act 1937, Art 28 - Declaratory relief refused (2012/1731P - Hedigan J - 31/7/2013) [2013] IEHC 377
Burke v Court Services
Facts: The plaintiff was a County Registrar who sought declarations that the Courts Officers Act 1926-2008 accorded priority to his position regarding the powers, duties, authorities and functions of his office as County Registrar. He sought inter alia declarations that his role had not been reduced by the Courts Service Act 1998, together with declarations that the defendant had inadequately respected the principles of natural and constitutional justice encompassing an implied term of mutual trust and confidence. He contended that his independence was encroached by an instruction to carry out series tasks and was requested to transfer probate temporary to the probate office in Dublin.
Held by Hedigan J. that there would be no orders of declarations as sought. The plaintiff”s view of his role was not based on the realities of the post-1998 regime. The staff in his office were not his alone but rather were employed by the Courts Service. The Act could not have been clearer. County Registrars were not civil servants and not employees of the defendants. The Courts Service was required to have regard to the resources available to it and the need to secure the most beneficial, effective and efficient use of resources.
Judgment of Mr. Justice Hedigan delivered on the 31st of July 2013.
1. The plaintiff seeks declarations that the Court Officers Acts 1926-2008 accord priority to his position regarding the powers, duties, authorities and functions of his office as County Registrar. He also seeks declarations that the said Court Officers Acts have not been amended and that his role has not been reduced by the Courts Services Act 1998 together with declarations that the defendant has inadequately respected the principles of natural and constitutional justice and basic fairness of procedures encompassing an implied term of mutual trust and confidence.
2 2.1 The plaintiff is the County Registrar for the County of Kerry. The defendant is a statutory corporation established by the Courts Services Act 1998 and is responsible for the management of the courts including the employment of staff in circuit court offices.
2 3.1 These proceedings have been commenced in circumstances where a dispute has arisen between the plaintiff and the defendant regarding the exercise by the plaintiff of the powers, authorities, duties and functions of his office.
The decision to appoint the plaintiff to the position of County Registrar for Co. Kerry was taken by the government pursuant to Article 28 of the Constitution and the Court Officers Act 1926-2008 and was communicated to him in a letter from the defendantapos;s chief executive dated the 24 th July, 2006. The plaintiff took up his position on the 1 st December. 2006.
The plaintiff giving evidence on day 2 of the hearing indicated that he believes:-
"…my office is being undermined, my independence is being undermined. I was appointed to the office by the government and assigned to Tralee with direct responsibility to manage and administer the office and litigation of Tralee Circuit Court. The legislation directing me to do so has not been, in my opinion amended, repealed or revoked. I have not been directed by government to abrogate my responsibility or hand them over to a civil servant employed by the Courts service".
3 3.2 Therefore, the proceedings essentially turn on the independence of the plaintiffapos;s office and the requirement that that independence be acknowledged and respected by the defendant. The plaintiff argues this independence is being undermined by the defendantapos;s failure to provide adequate staffing and submits that he is being impeded in the discharge of the functions of his office due to the inadequate staffing levels in Kerry Circuit Court office, specifically by reason of the non-replacement of three retiring staff members from March 2012 onwards, namely the chief clerk, one staff officer and one clerical officer. He asserts that the failure of the defendant to act in a timely and effective manner in relation to staffing levels and its failure to engage with him in addressing the concerns he has expressed threatens the morale of the remaining staff in the circuit court office. He further contends that the defendantapos;s failure is bringing his office into disrepute, and is exposing him to an increased risk of being judicially reviewed.
2 4.1 Failure to respect principles of natural and constitutional justice;
The plaintiff argues that his entitlements vis agrave; vis his office have been breached and seeks a declaration that the principles of natural and constitutional justice and basic fairness of procedures have been inadequately respected by the defendant.
In the absence of legislation expressly amending/repealing the statutory provisions giving effect and substance to the plaintiff s office, the plaintiff argues that the principles of natural and constitutional justice protect his rights and entitlements. Thus, he submits that he enjoys the right as office-holder to have the status and integrity of his office respected. He refers the Court to the judgment of the Supreme Court in Dellway Investments Limited v NAMA [2011]4 IR and argues that that case emphasised the significance attaching to the principles of natural and constitutional justice in a statutory setting where the rights of individuals are concerned and is now the leading authority in this area. He notes the dicta of Hardiman J. in that case where in addressing fair procedures he observed at para. 326 that property rights were not limited to land or real property but in the immediate context of fair procedures they also extended:-
"…to the rights to oneapos;s entitlements under an appointment to an office....".
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