Riordan v Min for Environment and Others

• Jurisdiction: Ireland
• Judge: Finnegan P.
• Judgment Date: 26 May 2004
• Neutral Citation: [2004] IEHC 89
• Court: High Court
• Date: 26 May 2004

[2004] IEHC 89

THE HIGH COURT

HC 206/04

NO. 3417P/2004

RIORDAN v. MIN FOR ENVIRONMENT & ORS

BETWEEN

DENIS RIORDAN

PLAINTIFF

AND

MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT, THE ATTORNEY GENERAL AND IRELAND

DEFENDANTS

Citations:

CONSTITUTION ART 28A.3

EUROPEAN PARLIAMENT ELECTIONS ACT 1997 S12(1A)

ELECTORAL (AMDT) ACT 2002 S2

LOCAL GOVT ACT 2001 S27(2)

LOCAL GOVT ACT 2001 S27

CONSTITUTION 40.1

REDMOND V MIN ENVIRONMENT 2001 4 IR 64

KING V MIN ENVIRONMENT UNREP KEARNS 19.12.2003

CONSTITUTION ART 15.2.1

CONSTITUTION ART 15.2

CONSTITUTION ART 15.2.2

NUR V SULLIVAN 1947 IR 77

CITYVIEW PRESS LTD V COMHAIRLE OILIUNA 1980 IR 381

DE BURCA V AG 1976 IR 38

MAYTHORN V PALMER 1864 1 ILT 261

Abstract:

Injunction - Elections - Balance of convenience - Practice and procedure - Delay in seeking injunctive relief - Adequacy of undertaking as to damages - Equality of treatment - Applicant wished to stand as candidate for election - Legislative requirement that at least 60 signatures be obtained before person can stand as candidate - Injunction sought restraining holding of elections until constitutionality of election legislation determined - Whether balance of convenience favours granting of injunction - Whether delay in seeking relief has bearing on assessment of balance of convenience - Bunracht na hÉireann 1937, article 40.1 - European Parliament Elections Act 1997, section 12(1A).

Facts: section 12(1A) of the European Parliament Elections Act 1997 provides that in the case of a candidate whose candidature is not authenticated by a certificate of political affiliation, the candidate’s nomination shall be assented to by sixty persons who are registered as European electors in the constituency. The plaintiff, who was not a member of a political party, wished to stand as a candidate in the European elections scheduled for the 11th June, 2004 but did not have the requisite number of signatures. He sought injunctive relief directing the first respondent to place his name on the ballot paper or in the alternative restraining the holding of the elections until section 12(1A) of the Act of 1997 has rescinded as being unconstitutional. The date for the elections had been announced on the 2nd December, 2003. He issued a plenary summons on the 19th March, 2004 but did not issue a motion seeking the injunctive relief until the 18th May, 2004. The defendants resisted the application on the basis of the considerable inconvenience and disturbance to the election process which would result, including the inconvenience and expense incurred by other candidates who had prepared for the elections, especially as the plaintiff could have sought the injunctions at an earlier juncture.

Held by Finnegan J in refusing the reliefs sought that, whilst the plaintiff raised a fair issue to be tried, the balance of convenience, the delay on the plaintiff’s part and the inadequacy of his undertaking as to damages did not favour the granting of injunctive relief. There was an obligation on the plaintiff to issue proceedings and the motion seeking interlocutory relief promptly after the announcement of the date for the elections. Had such application been made the balance of convenience could have been found to lie elsewhere. Whilst the inadequacy of the plaintiff’s undertaking as to damages was not determinative of the application, it was a factor which had to be taken into account.

Reporter: P. C.

1 Finnegan P. delivered on the 26th day of May 2004

2 This is an application for injunctive relief and while several reliefs are sought in the Notice of Motion only two of the same were pursued at the hearing and these are as follows -

3 (1) An Injunction or Order requiring the Minister for the Environment, Heritage and Local Government to insert, or order the Returning Officer for the European Parliament Election Constituency South to insert, the Plaintiff's name on the ballot paper for the Constituency South for the European Parliament Elections due to take place on the 11 ^th June 2004.

4 (2) An Order to restrain the Minister for the Environment, Heritage and Local Government from holding elections for membership of local authorities until such time as legislation has been enacted by the Oireachtas to require the conduct of the elections as required by Article 28A.3 of the Constitution.

5 Relevant on this application are the following dates. The date for the holding of European Parliament elections and local elections was announced on the 2 ^nd December 2003 the date being the 11 ^th June 2004. The Plaintiff issued a Plenary Summons on the 19 ^th March 2004 seeking a number of reliefs but those relevant to the present application are as follows -

6 (1) A declaration that section 12(1 A) of the European Parliament Elections 1997as inserted by the Electoral (Amendment) Act 2002section 2 is repugnant to the Constitution.

7 Section 12(1 A) provides as follows -

"In the case of a candidate whose candidature is not authenticated by a certificate of political affiliation under Rule 5(3) of the Second Schedule, the candidate's nomination shall, before delivery of his or her nomination paper to the Returning Officer in accordance with Rule 11 of that Schedule, be assented to by sixty persons (excluding the candidate and any proposer) who are registered as European Electors in the constituency."

8 (2) Section 27(2) of the Local Government Act 2001is repugnant to the Constitution.

9 The Local Government Act 2001section 27 provides as follows -

"27"

(1) (a) Local Elections shall be held in accordance with Regulations made by the Minister under this section.

(2) Without prejudice to the generality of sub-section (1) regulations under this section may in particular include provision for all or any of the following matters in relation to local elections:

2 (a) Nominations."

10 The Plaintiff delivered his Statement of Claim on the 20 ^thApril 2004. The Order fixing the time and date for the European Parliament Election was signed by the Minister on the 7 ^th May 2004 and the Order for the Local Elections on the 13 ^th May 2004. On the 13 ^th May 2004 he applied to the Court (McKechnie J.) for an Order abridging the time for the bringing of a Notice of Motion which relief was refused. The Notice of Motion was issued on the 18 ^th May 2004 returnable for the 24 ^th May 2004 and was heard on the 25 ^th May 2004.

11 In respect of the first relief claimed on this Notice of Motion the Plaintiff relies on Article 40.1 of the Constitution which provides:-

"All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to the differences of capacity physical and moral and of social function."

12 The Plaintiff wished to be a candidate for the European Parliament Election. For a number of reasons he was unable to satisfy the requirement of...