R R v Bernard Mccabe

• Jurisdiction: Ireland
• Judge: Mr. Justice Colm Mac Eochaidh
• Judgment Date: 24 October 2013
• Neutral Citation: [2013] IEHC 468,[2013] IEHC 416
• Court: High Court
• Date: 24 October 2013

R (R) v Refugee Appeals Tribunal (McCabe)

JUDICIAL REVIEW

BETWEEN

R. R.

APPLICANT

AND

BERNARD MCCABE SITTING AS THE REFUGEE APPEALS TRIBUNAL

RESPONDENT

[2013] IEHC 416

[No. 308 JR/2009]

THE HIGH COURT

IMMIGRATION

Practice and procedure

Judicial review - Statement of grounds - Amendment - Extension of time - Good and sufficient reason - Whether errors of lawyers could constitute good and sufficient reason to permit amendment - Whether application to amend ought to be brought as soon as practical one pleading error identified - Whether four year delay between filing of pleadings and application to amend excusable - Whether reasonable for lawyers to postpone work on case until weeks leading up to hearing - Muresan v Minister for Justice [2004] 2 IRLM 364 approved - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Application refused (2009/308JR - Mac Eochaidh J - 25/7/2013) [2013] IEHC 416

R(R) v Refugee Appeals Tribunal

Facts: This matter concerned an application brought by the applicant to amend their statement of grounds in proceedings which concerned a challenge, brought by the applicant, of a decision of the Refugee Appeals Tribunal (‘the Tribunal’) made on the 24th February 2009. On the 12 ^th April 2013, during the telescoped hearing of the challenge, it became apparent that the applicant sought to argue his case on grounds which had not been pleaded. The applicant averred that ground 15 of the statement of grounds was sufficiently wide to encompass the new grounds being argued. However, it was pointed out by the respondent that the applicant had indicated three days before the telescoped hearing that ground 15 was withdrawn. An application was subsequently brought by the applicant to amend the statement of grounds.

Pursuant to section 5 of the Illegal Immigrants (Trafficking) Act 2000 (‘the 2000 Act’), a judicial review challenge to a decision of the Tribunal must be made within 14 days unless the Court is satisfied that there is ‘good and sufficient reason’ for extending the time period. The applicant stated that the new grounds were not included in the original pleadings due to an oversight partly caused by the pressure on counsel to ,amongst other things, take instructions and draft pleadings within such a short timeframe. It was further argued that the four year delay in bringing an application to amend the statement of grounds was excusable on the basis that following the initiation of the judicial review challenge, counsel did not review the papers again until a few weeks before the telescoped hearing.

The respondent, relying on Muresan v. Minister for Justice [2004] 2 ILRM 364, argued that the new grounds being advanced by the applicant must be sharply different to that which has already pleaded so that their omission could only be described as an oversight. It was said that only an oversight could constitute a ‘good and sufficient reason’ to allow an extension of time to apply to amend the statement of grounds. The respondent argued that the new grounds being advanced by the applicant were of a similar nature to those which had already been pleaded, therefore the application should be rejected.

Held by Mac Eochaidh J that the Court was prepared to accept that the new grounds that the applicant sought to argue may have been omitted from the statement of grounds due to the pressure on the applicant to prepare a judicial review challenge within such a short timeframe. However, in regards to the four year delay in bringing an application to amend the statement of grounds, it was said that although such a delay could be excusable, it was important to point out that even though counsel for the applicant had finalised written submissions for the telescoped hearing on the 21 ^st March 2013, no such application was immediately brought even though the papers would have been reviewed by then. It was said that the error in the pleadings should have been identified at this stage at the latest. Because an application to amend the statement of grounds was not made as soon as practically possible thereafter, the application to extend time to allow amendments of the statement of grounds was refused. The respondent”s argument that the new grounds being advanced by the applicant were of a similar nature to those which had already been pleaded therefore did not need to be considered.

It was further held however that the Court was prepared to allow the applicant”s ground 15 to be reintroduced. It was said that such a measure was not prejudicial to the respondent because the ground had originally been withdrawn by the applicant at such an advanced stage.

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

MURESAN v MIN FOR JUSTICE 2004 2 ILRM 364 2003 38 9156

1 1. This is an application to amend the statement of grounds in these proceedings which challenge a decision of the Refugee Appeals Tribunal of 24th February 2009. The proceedings were instituted on 23rd March 2009. On the 17th of July 2013 I gave my decision in this matter stating that I would indicate my reasons later, this I now so do.

2 2. The judicial review came on for a 'telescoped' hearing on 12th April 2013. Certain matters were sought to be argued which did not appear to have been pleaded. Ultimately, counsel for the applicant argued that ground 15 of the pleadings was sufficiently broad to capture the new grounds. Ground 15 is as follows:

"The respondent acted irrationally and unreasonable [sic] in reaching his decision."

3 3. That submission ignored the fact that ground 15 had been withdrawn, along with other grounds, in a letter addressed to the respondent's solicitors on 9th April 2013. I granted the applicant liberty to bring a motion to amend the proceedings and that motion is the matter which is before the court now. Ten new grounds are sought to be added.

4 4. Section 5 of the Illegal Immigrants (Trafficking) Act 2000 provides that proceedings challenging a decision of the Tribunal be made within 14 days unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made.

5 5. Counsel for the applicant has explained that the reason the grounds were not included in the original pleading is that they were overlooked. I am sympathetic to the views expressed by Mr. Hynes S.C. (for the applicant) who said that the 14-day time period within which to take instructions, consider the papers, conduct legal research, instruct counsel, draft pleadings and process the papers at the Central Office explains why sometimes points relevant and useful to an applicant might be overlooked. The court accepts that is a proper explanation for how the matters now sought to be pleaded were not originally advanced.

6 6. What of the four years or so between the filing of the papers in 2009 and the matter being called on for hearing in April 2013? Counsel explained that the state of pleadings would not, in normal course, come to be reviewed by counsel until some time close to the hearing of the action. In his submission, the four year delay, though lengthy by any standard, is excusable.

7 7. Extremely detailed submissions were received by the court from the respondent on this motion to amend. Many authorities have been referred to and there is much helpful guidance available for the court on the issues at stake. I have found the decision of Finlay Geoghegan J. in Muresan v. Minister for Justice [2004] 2 ILRM 364, most instructive, and in particular, the following passage:

"It is inevitable that different counsel will take a different view of the same case. It appears to me that if the courts were to permit an extension of the period provided for under section 5(2) of the Act of 2000 simply upon the grounds that a new counsel had come into a case and had taken a view that a differing and additional claim on new and distinct grounds should be made that this would defeat the legislative intent as expressed in section 5(2) of the Act of 2000. It may be that on certain facts the clear oversight or errors by lawyers acting for an applicant may amount to a good and sufficient reason for extending this period under section 5(2). There was no such clear error in this case."

8 8. The heart of the applicant's submission is that the applicant's lawyers overlooked pleading the case in sufficient breadth. As Finlay Geoghegan J. says, there are circumstances in which lawyers' errors may constitute good and sufficient reason for extending time. However, in this case, it seems to me that the pleadings were carefully reviewed in the weeks prior to the hearing of the action. Written submissions were prepared and signed by Junior and Senior Counsel dated March 21st 2013. By that date, at the latest, the absence of adequate pleading was known or should have been known but no step was taken to remedy the deficiency. Not only that, but the pleadings were sought to be changed by reducing the number of grounds and a letter announcing this was sent on 9th April 2013. Thus, the pleadings were reviewed again and still no decision was taken in respect of any deficiency.

9 9. In my view, an application to amend proceedings commenced under s. 5 of the Illegal Immigrants (Trafficking) Act 2000, must be brought as soon as practicably possible once a pleading error is identified. In this case, the applicant, who knew or ought to have known of the deficiency in the months before the hearing of the action, delayed seeking the necessary relief until the case was at hearing. No excuse for this delay has been offered to the court. On this ground alone, I refuse the application to extend time to permit amendments to the pleadings.

10 10. There is merit in the submissions made by Mr. Barron S.C., on behalf of the respondent, that applicants seeking to extend...