Price v Governor of Mountjoy Prison and Another
| Jurisdiction | Ireland |
| Judge | Master of the High Court,Mr. Justice McGovern |
| Judgment Date | 15 June 2007 |
| Neutral Citation | [2007] IEHC 269,[2005] IEHC 336 |
| Court | High Court |
| Docket Number | [No. 451 J.R./2004] |
| Date | 15 June 2007 |
[2005] IEHC 336
THE HIGH COURT
BETWEEN
AND
PRACTICE & PROCEDURE
Discovery
Judicial review - Basis for granting discovery in judicial review proceedings - Necessity for documents - Ability to prove events without discovery - Order for discovery refused (2004/451JR - Master Honohan -20/10/2005) [2005] IEHC 336
Price v Governor of Mountjoy Prison
The applicant’s punishment, imposed by the first respondent, was increased by the second respondent. The applicant sought judicial review and applied for discovery.
Held by the Master Honohan that in considering an application for discovery in judicial review proceedings the court had to keep in mind (a) the reliefs sought and (b) the grounds, specifically, the grounds set out in the court order granting leave. The Court had to then to isolate the factual issues which the court would have to determine.
Reporter: R.W.
The applicant sought judicial review on twelve separate grounds but by order of 24th May, 2004 the High Court gave leave on only five grounds. The Notice of Motion then issued with a return date of 22nd June, 2004 seeking declarations and an order of certiorari of the Minister's decision of March 2004 to apply "an increased penalty" for the disciplinary offence admitted by the applicant.
In considering an application for discovery in judicial review proceedings the court has to keep in mind (a) the reliefs sought and (b) the grounds, specifically, the grounds set out in the Court Order granting leave.
Having established the scope of the review, the court then has to try to isolate factual issues, if any, (that is to say, facts alleged and denied) which the court will necessarily have to determine one way or another in the course of the review.
The applicant's punishment imposed by the first named respondent was increased by the second named. The applicant contends that the power to do so isultra vires (something missing here: so stated, the contention is meaningless!) or is in breach of the applicant's right to fair procedures (this contention added by Court Order), and/or that the second named respondent's "ex parte" decision to increase the penalty without affording the applicant any opportunity to be heard offended against the principles of natural justice. What the applicant should be looking for is a declaration not that the power is ultra vires, but that it is subject always to due observance of the principles of natural justice. The applicant also seeks a declaration that his continuing suspension (as from what date?) is "without efficacy".
The five grounds (paragraph F (i), (iii), (iv), (v) and (x) of the statement) do not quite tally with the matters set out in the reliefs.
(a) The applicant is asserting that the second named defendant misconstrued his powers. This is a poorly conceived ground. The Minister either actedintra vires or ultra vires. If the latter, the reason why he so acted (i.e. because he misunderstood the powers) is neither here nor there. At the discovery stage a fact is "in issue" which is not material: that fact is the state of the Minister's understanding of his powers. Clearly, the applicant does not know the state of the Minister's mind. But, equally clearly, the court will not concern itself with the Minister's construction (as a fact) but will judge his actions as either intra or ultra vires on the court's own construction of the relevant law and legal principles applicable.
I cannot be certain about this, but I think it is a fair reading of the applicant's "grounds" that the only particular of misconstruction alleged is the overlooking of the "requirement" that the Minister notify the applicant before the decision, a requirement said to be the product of the application of natural justice/due process principles to the process. Non notification is a fact alleged. It is a fact which the applicant himself can try to prove (the letter of 8th March, 2004 seems to me to constitute precisely such a notification, perhaps ineptly worded).
(b) The applicant also asserts the existence of a "common law" principle to the effect that "once imposed, a punishment should not subsequently be increased". The existence or otherwise of such a principle is wholly a matter of law. The applicant needs to prove only that a punishment was imposed and subsequently increased. Neither fact is denied.
(c) Finally the applicant asserts that he had a legitimate expectation that he would not be treated differently from two colleagues also being disciplined for the same offences and/or that the penalty should not be increased. The undisputed facts are that he was, and it was. All three were initially treated equally and relatively leniently. The Minister subsequently increased the punishment of only the applicant. (It may be of significance that the applicant held a rank superior to that of the other two).
The applicant relies on the fact that he pleaded guilty as the basis for such legitimate expectation(s). This again is poor drafting. It is obvious from the affidavit that the applicant wishes to root his legitimate expectations in regard to the Minister's decision in the fact that he was treated equally at the first stage. Perhaps the fact that he pleaded guilty at that stage contributed to the equal treatment, but prior to the imposition of a sanction at that stage he cannot have had any expectations (notwithstanding POA Branch Officer Jim Mitchell's observations along those lines) that he would be treated equally with the others simply because all pleaded guilty. (Certainly, the applicant is not making any case to the effect that he "cut a deal" with the Governor at the first stage, prior to pleading guilty, and expected the deal,as such, to be honoured, in turn, by the Minister at the second stage.)
In any event, legitimate expectation is a case which necessarily (of its nature) must rest on the facts known to the applicant at the time of the creation of the expectation, and it is the applicant himself who can give best evidence as to what he knew at that time. Discovered documents would only be corroborative. In this case, the only fact that he is relying on is the fact that he pleaded. Even extending that as above outlined (overlooking the clearly inadequate pleading) there are no material facts to be proved because none are denied.
(d) The applicant also makes the case that "I further believe that his suspension was improper since at least the month of December 2003 and at the latest, the 8th March 2004". That date is the date of the letter above referred to. It states that the suspension would continue "pending resolution of this issue", "the issue" being as to whether the applicant opted to "appeal" within 14 days and, if so what the outcome might be. No case is being made that the suspension was invalid ab initio. Ground (x) is to the effect that the suspension after the Governor's decision is not a suspension "for the purpose of investigating" (the stated reason). It must therefore be a suspension for some other non-specified (and therefore invalid) reason. It follows that the applicant needs to prove, as a fact, that the investigation was complete as of either of the dates he specified (or some intermediate date). From the papers exhibited it is clear that the Governor's investigation must have been completed prior to the imposition of a sanction. (25/12/04: the date of Mr. Prior's plea to the lesser charge: note the Governor's observations of that date that the suspension would have to be "reviewed in the light of the current situation".) The applicant does not need discovery of documents to prove this sequence of events.
[2007] IEHC 269
THE HIGH COURT
BETWEEN
AND
CIVIL SERVICE REGULATION ACT 1956 S13
PRISON (DISCIPLINARY CODE FOR OFFICERS) RULES 1996 SI 289/1996 RULE 9
PRISON (DISCIPLINARY CODE FOR OFFICERS) RULES 1996 SI 289/1996 RULE 9(2)
PRISON (DISCIPLINARY CODE FOR OFFICERS) RULES 1996 SI 289/1996 RULE 10(2)
CURLEY v GOVERNOR OF ARBOUR HILL PRISON 2005 3 IR 308 2006 1 ILRM 10 2005/13/2722 2005 IESC 49
STEFAN v MIN FOR JUSTICE 2001 4 IR 203 2002 2 ILRM 134
ABENGLEN PROPERTIES v CORP OF DUBLIN 1984 IR 381 1982 ILRM 590
Administrative law - Disciplinary procedures - Prisons - Sanctions - Judicial review - Fair procedures - Civil Service Regulation Act 1956, s.13 - Prison (Disciplinary Code for Officers) Rules 1996 (S.I. 289/1996)
The applicant was a Chief Prison Officer. This was an application for judicial review arising out of sanctions imposed on the applicant by the respondents pursuant to the Prison (Disciplinary Code for Officers) Rules 1996 (S.I. 289/1996) and his suspension under s. 13 of the Civil Service Regulation Act 1956.
Held by McGovern J. in quashing the decision of the second respondent that he acted in breach of fair procedures and natural justice. As the second respondent was acting ultra vires and in breach of natural justice, the applicant’s continuing suspension was unlawful.
Reporter: R.W.
1. This is an application for judicial review arising out of sanctions imposed on the applicant by the respondents pursuant to the Prison (Disciplinary Code for Officers) Rules 1996 ( S.I. No. 289 of 1996) and his suspension under s. 13 of the...
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