Riordan (plaintiff) v Government of Ireland

• Jurisdiction: Ireland
• Judge: MR. JUSTICE T.C. SMYTH
• Judgment Date: 06 October 2006
• Neutral Citation: [2006] IEHC 312
• Court: High Court
• Date: 06 October 2006

[2006] IEHC 312

THE HIGH COURT

RECORD NO. 13256P/2003

RIORDAN v GOVERNMENT OF IRELAND & ORS

DUBLIN

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DENIS RIORDAN

Plaintiff

GOVERNMENT OF IRELAND, OIREACHTAS NA hÉireann and ATTORNEY GENERAL

Defendants

AG v IRELAND (NO 4) 2001 3 IR 370

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S1(3)

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S1(4)

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S2(3)

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S2(4)

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S2(5)

RIORDAN v AN TAOISEACH & ORS (NO 5) 2001 4 IR 463

CAHILL v SUTTON 1980 IR 269

CONSTITUTION ART 34.5

CONSTITUTION ART 35.1

CONSTITUTION ART 34

CONSTITUTION ART 34.5.1

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S1(2)(b)

COURT & COURT OFFICERS ACT 1995 S1(2)(B)

CONSTITUTION ART 36.1

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S7(3)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S7(4)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S7(5)

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S3(2)

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S3(1)

DPP v GILLIGAN (NO 2) UNREP SUPREME 10.7.2006

CONSTITUTION ART 36

CONSTITUTION ART 12.3.1

CONSTITUTION ART 26

CONSTITUTION ART 12

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S7

STATE (WILLIAMS) v KELLY 1970 IR 259

PEILOW v FRENCH O'CARROLL 1971 105 ILTR 21

AG v CONMEY 1975 IR 341

CONSTITUTION ART 35.3

Abstract:

Practice & procedure - Constitutional - Court jurisdiction - Supreme Court - Court of Criminal Appeal - DPP v. Gilligan - Additional judges - Ex officio judges - Whether Supreme Court validly sitting - Courts (Establishment and Constitution) Acts 1961 - Article 34 Constitution

: The plaintiff, a serial litigant who was the subject of a Court order not to institute proceedings without leave of court, challenged the constitutionality of ss. 1 & 2 of the Courts (Establishment and Constitution) Act 1961. The plaintiff alleged inter alia that the appointment of ex officio judges, the sittings of the Supreme Court in divisions, the composition of the Court of Criminal Appeal in DPP v. Gilligan and the appointment of additional judges to courts in a temporary capacity were all unconstitutional and that the previous decisions of the Supreme Court were not valid as the Court had not been validity composed, permitting him to reopen previous decisions.

Held by Smyth J., in rejecting the contentions of the plaintiff, that he lacked locus standi to challenge the composition of the Court of Criminal Appeal. The plaintiff was engaging in vexatious litigation that in future had to be on notice to the other side. The right of access to court was not an absolute right.

Reporter: E.F.

1 MR. JUSTICE T.C. SMYTH DELIVERED ON FRIDAY, 6 OCTOBER 2006

2 I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named matter.

APPEARANCES

For the Applicant:

MR. DENIS RIORDAN (in person)

For the Respondent:

MS. NUALA BUTLER SC

MS. R ÓISÍN LACEY BL

Instructed by:

MS. HELEN McGUIRE

CHIEF STATE SOLICITOR

CHAPTER HOUSE

UPPER ABBEY STREET

DUBLIN 1.

3 COPYRIGHT: Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Services

JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON 6 OCTOBER 2006.

4 The judgment of the Supreme Court (Keane C.J., Murphy, Hardiman J.J.) in Denis Riordan, Applicant, an Taoiseach Bertie Ahern, the Government of Ireland, Dáil Éireann, the Minister for the Environment, the Attorney General and Ireland (No. 4) [2001] 3IR 365 at 370 concluded as follows:

"This Court is extremely reluctant, as the High Court has been, to restrain the access of any citizen to the courts. The stage has clearly been reached, however, where the proper administration of justice requires the making of such an order as against the Applicant. Accordingly, in addition to dismissing the present motion the Court will, in exercise of its inherent jurisdiction, order that the Applicant be restrained from instituting any proceedings, whether by way of appeal or otherwise, against any of the parties to these proceedings or the holders of any of the offices named as Defendants or against the Oireachtas, the Government, or any member thereof or Ireland (other than in relation to the taxation of costs), whether in the High Court or the Supreme Court, except with the prior leave of this Court, such leave to be sought by application in writing addressed to the Registrar of the Supreme Court."

5 This judgment delivered on 19 October 2001 by the Chief Justice was agreed to by the other two members of the Court.

6 An order dated 21 November 2003 was made by the Supreme Court (McGuinness, Geoghegan and Fennelly, JJ) in respect of these proceedings (which were then intended) granting the Plaintiff leave to institute proceedings in this Court in respect of reliefs 1, 2, 3, 11 and 12 of the draft plenary summons, which was enclosed with a letter of 30 June 2003 addressed to the Supreme Court or its Registrar. From the order it is clear that the application was advanced on foot of the letter aforesaid and a further letter of 3 November 2003 (no affidavit is referred to). The order recites that the said letters were read as was:

"The Judgment and Order of this Court given and made on the 23rd day of October, 2001 and upon hearing the intended Plaintiff."

7 No written judgment of the Supreme Court was available to me to understand any of the following:

8 (i) The discrepancy in the date of the judgment in October 2001 (the official Irish Reports refer to the date as 19 October 2001). It may be as simple as a judgment delivered and dated 19 October 2001 was signed a few days later or that the Order on foot of the judgment was officially perfected on 23 October 2001.

9 (ii) what reasons were given by the Court for its departure from its judgment of 19 October 2001 on a application first made in less than two years against parties intended to be protected from unnecessary harassment.

10 (iii) When I raised the issue in Court, the Plaintiff originally said he had not appeared before the Supreme Court, but when the wording of the Order was pointed out to him he agreed that he must have been present. (T1 p.60/61)

11 (iv) Why the Supreme Court permitted these proceedings to issue on an ex parte application basis when the parties intended to be protected from vexatious litigation by the earlier decision of 19 October 2001 were parties to this litigation. It is both customary and proper in the generality of cases that an application in the matter of an intended action can and should be on an ex-parte basis. In this case, however, the Supreme Court in the judgment of 19 October 2001 per Keane, C.J. stated:

"… there is in the High Court an inherent jurisdiction to restrain the institution of proceedings by named persons in order to ensure that the process of the Court is not abused by repeated attempts to re-open litigation or to pursue litigation which is plainly groundless and vexatious. The Court is bound to uphold the rights of other citizens, including their right to be protected from unnecessary harassment and expense, rights which are enjoyed by the holders of public offices as well as by private citizens. This Court would be failing in its duty, as would the High Court, if it allowed its processes to be repeatedly invoked in order to re-open issues already determined or to pursue groundless and vexatious litigation."

12 The Applicant has not merely repeatedly sought to re-open decisions of this Court, he has also persistently abused the locus standi he has been afforded by the High Court and this Court in cases in which he has no direct personal interest, in order to make scandalous allegations, not merely against members of the judiciary, but other persons whom he chose to join as defendants in his proceedings."

13 [Emphasis added]

14 I do not presume to consider that the Supreme Court, if the decision of 19 October 2001 was brought to their attention as would have been the obligation of the good faith of an Applicant "moving" ex parte, took the obiter, in the judgment --

"No proceedings have come before the High Court or this Court claiming a declaration that these provisions. [S.1(4) and S.7(3), (4) and (5) of the Courts (Establishment and Constitution) Act, 1961 and 5.7 of the Courts and Court Officers Act, 1995] are invalid having regard to the provisions of the Constitution, and they must be presumed by this Court to be valid."

15 as some form of "classified advertisement" or open invitation to initiate and embark on needless litigation.

16 It would appear that emboldened by having got his foot inside the door of the Court by virtue of the order of 21 November 2003, the plaintiff made a further application within a month (again of which the Defendants had no notice) to expand the range of constitutional challenges. The determination of the Supreme Court (McGuinness, Hardiman and Fennelly JJ) is stated to be based on a letter (not an affidavit) and a reading of the judgment and Order of 23 October 2001 and the Court order of 21 November 2003. There is no reference to any attendance or appearance before the Court of the Plaintiff in person or anyone appearing on his behalf.

17 In fact the Plaintiff has previously sought to institute proceedings making a similar constitutional challenge (to that permitted to be made by the Order of the Supreme Court on 17 December 2003) to Section 1(3) and (4) and Section 2(3), (4) and (5) of the Courts (Establishment and Constitution) Act, 1961. The...