Potts v Minister for Defence

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 10 March 2005
• Neutral Citation: [2005] IEHC 72
• Court: High Court
• Date: 10 March 2005

[2005] IEHC 72

THE HIGH COURT

[No. 974 JR/2004]

Potts -v- Minister for Defence

BETWEEN

MARTIN POTTS

APPLICANT

AND

THE MINISTER FOR DEFENCE

RESPONDENT

Abstract:

Judicial review - Defence forces - Disciplinary procedure - Whether the applicant satisfied the threshold to establish a sufficient case to be granted leave to judicially review the summary procedure in Irish military law.

The applicant who was a member of the Defence Forces was before a subordinate officer, charged with being absent without leave but no investigation of that charge had yet taken place. The applicant sought leave to apply for relief by way of judicial review on the grounds that sections 178 and 179 of the Defence Act, 1954, which dealt with the summary disposition of charges against members of the Defence Forces, breached his rights guaranteed under the provisions of the European Convention of Human Rights and the Constitution of Ireland. The applicant was required to put the respondent on notice of the application for leave.

Held by Clarke J. in granting leave to apply for judicial review:

1. That the appropriate standard to be applied in this case was the standard applied in statutory cases.

2. That the applicant passed the threshold required to establish a sufficient case to be granted leave in respect of his contention that the summary process in Irish military law contravened the European Convention of Human Rights and the Constitution of Ireland.

Reporter: L.O'S.

1 JUDGMENT of Mr. Justice Clarke delivered on the 10th March, 2005.

2 In this matter the applicant seeks leave to apply for relief by way of judicial review. As is pointed out in the written submissions filed on his behalf the essence of the applicant's case involves a challenge to the statutory framework currently in existence for the summary disposition of charges to be laid against members of the Defence Forces such as the applicant. The applicant seeks leave to challenge that framework on the basis that, in certain respects, it constitutes a breach of the rights guaranteed to him under the provisions of the European Convention on Human Rights insofar as same are introduced into domestic law by reason of the enactment of the Convention on Human Rights Act, 2003. The applicant also contends that the same statutory framework constitutes a breach of his constitutional rights.

The Threshold

3 In the ordinary way an application for leave, such as this, would commence by ex parte application to the court seeking such leave. Cases of this type do not come within any of the special categories of case in relation to which it has been determined by statute that applications for leave must be on notice. Equally, it is however, clear that this court has, in general terms, a discretion to require that an applicant put the intended respondent or, indeed, any intended notice party, on notice of the application so as to give them an opportunity to be heard prior to the court coming to a conclusion as to whether leave should be granted.

4 In the ordinary way in an ex parte application seeking leave to commence judicial review proceedings the principles applicable to the granting of leave are those set out in the case of G v. D.P.P. [1994] 1 I.R. In such a case an applicant is required to show an arguable case based on stateable grounds in order to obtain such leave from this court.

5 However there have been suggestions that in cases where the applicant has been required, in the discretion of the court, to put the respondent and, if appropriate, others, on notice a higher threshold applies. In D.C. v. D.P.P. (unreported judgment Ó Caoimh J. 18th May, 2004) the learned judge stated as follows:-

"In the first place at the stage when this application was moved ex parte before me I directed the applicant to put the Director of Public Prosecutions on notice to enable the Director to assist this court in relation to the matters at issue on this application. I am satisfied having regard to the views expressed obiter by Kelly J. in Gorman v. Minister for the Environment [2001] 1 I.R. 306 and the authority cited by him therein that a higher standard should apply than that of establishing an arguable case such as indicated in the authority of G. v. D.P.P...."

6 Ó Caoimh J. went on at p. 24 of his judgment to comment as follows:-

"I also approve the approach taken by the Court of Appeal in Mass Energy Limited v. Birmingham City Council (1994) Env. L.R. at 298. This was the approach apparently applied by Smith J. in P. v. Minister for Justice Equality and Law Reform. On this basis I believe that the approach that I should take is to grant leave only if the applicant's case is not merely arguable but is strong, that is to say, is likely to succeed".

7 As has been pointed out by the respondent in the course of his submissions the rationale for applying the higher test as determined upon by the courts of the United Kingdom in Mass Energy is to be found at pp. 307 and 308 of the judgment where Glidewell L.G. stated that:-

"First we have had the benefit of detailed inter partes argument of such depth and in such detail that, in my view, if leave were granted, it is most unlikely that the points will be canvassed in much greater depth or detail at the substantive hearing. In particular we have had all the relevant documents put in front of us ... thirdly, as I said, we have most, if not all, of the documents in front of us; we have gone through the relevant ones in detail û indeed in really quite minute detail in some instances û in a way that a court dealing with an application for leave to move rarely does, and we are thus in as good a position as would be the court at the substantive hearing to construe the various documents. For those reasons taken together, in my view, the proper approach of this court, in this particular case, ought to be û and the approach I intend to adopt will be û that we should grant leave only if we are satisfied that Mass Energy's case is not merely arguable but is strong; that is to say, is likely to succeed."

8 In commenting on the test to be applied in R. v. Cotswold District Council (1998) 75 P&CR 515 at pp. 530 and 531 Keane J., having commented upon the test applied by the court in Mass Energy stated the following:-

"As I indicated in Ex p. Frost, that approach seems in principle to be as applicable at a first instance hearing of a leave application as in renewed leave proceedings before the Court of Appeal ... for my part, I would prefer to put it on the basis that where the court seems to have all the relevant material and have heard full argument at the leave stage on an inter partes hearing, the court is in a better position to judge the merits than is usual on a leave application. It may then require an applicant to show a reasonably good chance of success if he is to be given leave".

9 While it is true to state that Kelly J. in Gorman v. Minister for the Environment [2001] 1 I.R., as cited by Ó Caoimh J. indicated broad agreement with the principles adopted in the relevant UK case law he did reserve final decision on the matter to "another day and in another case where the issue can be fully debated".

10 I am not persuaded that the fact that an application is on leave, does, by itself, raise the threshold. In Mass Energy the court seems to have been influenced by the fact, that on the facts of that case, it seemed unlikely that issues of fact, interpretation, or legal argument, could be canvassed in much greater depth or detail at a substantive hearing. Similarly in R. Cotswold District Council, the court was influenced by the fact that it seemed "to have all the relevant material and have heard full argument at the leave stage on an inter partes hearing".

11 Of equal importance it seems to me is a consideration of the statutory regime which has been introduced by both s. 50 of the Planning and Development Act, 2000 and s. 5 of the Illegal Immigrants (Trafficking) Act, 2000. Both those provisions require that applications for judicial review in respect of certain planning matters and certain asylum type issues ("the statutory cases") must be made by motion on notice to the appropriate respondents and impose a higher threshold than exists in respect of ordinary judicial review applications. Both the statutory cases require that the court, prior to granting leave, must be satisfied that there are substantial grounds for contending that the matter intended to be challenged is invalid or ought to be quashed.

12 In the jurisprudence of the courts in relation to both the above sections it has been accepted that a higher threshold for the grant of leave is required in such cases. That threshold has been variously been described as being equivalent to "reasonable" "arguable" and "weighty" but not "frivolous" or "tenuous". See for example V.Z. v. Minister for Justice, Equality and Law Reform [2002] 2 I.R. 135. It seems to me that the existence of such an established statutory regime in respect of matters where the Oireachtas has determined that leave should only be granted where a more onerous threshold is passed is a matter that needs to be considered in a case such as this. It would be a strange result if a yet higher standard still was required to be met by an applicant who, though not the subject of a statutory requirement to give notice and to meet a higher threshold but who was nonetheless, on a discretionary basis, required to give notice by the court hearing an ex parte application. It should be noted that in the statutory cases the court has all the benefits of having facts put forward by the respondents (should they so wish) and hearing legal argument addressed by the respondents. It was those factors that led to the decisions in the courts of the United Kingdom referred to above. It is also clear that the statutory cases arise where the policy of...