S.M. v Ireland (No.1)

• Jurisdiction: Ireland
• Judge: Mr. Justice Hanna
• Judgment Date: 18 March 2005
• Neutral Citation: [2005] IEHC 102
• Court: High Court
• Docket Number: [Record No. 6559P/2003]
• Date: 18 March 2005

[2005] IEHC 102

THE HIGH COURT

[Record No. 6559P/2003]

MITCHELL v IRELAND & ORS

BETWEEN

STEPHEN MITCHELL

PLAINTIFF

AND

IRELAND AND THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS

DEFENDANTS

OFFENCES AGAINST THE PERSON ACT 1861 S62

BARRY v BUCKLEY 1981 IR 306

RIORDAN v AN TAOISEACH & ORS 1999 4 IR 343

NINETENTH AMDT TO THE CONSTITUTION BILL 1998

LYNCH, STATE v COONEY 1982 IR 337

HENDERSON v HENDERSON 1843 3

HARE 100CARROLL v RYAN & ORS 2003 1 IR 309 2003 2 ILRM 1

RUSSELL v WATERFORD & LIMERICK RAILWAY CO 1885 16 LR IR 314

NELSON v COUCH 1863 15 CB (NS) 99

COX v DUBLIN CITY DISTILLERY (NO. 2) 1915 1 IR 345

BARROW v BANKSIDE 1996 1 WLR 257 1996 1 LLR 278

JOHNSON v GORE WOOD & CO 2002 2 AC 1

WOODHOUSE v CONSIGNA 2002 2 AER 737 2002 1 WLR 2558

A (A) v MEDICAL COUNCIL & AG 2003 4 IR 302 2004 1 ILRM 372

GAIRY v AG OF GRENADA 2001 3 WLR 779 2002 1 AC 167

MCDERMOTT RES JUDICATA & DOUBLE JEOPARDY (1999) 81

PRACTICE & PROCEDURE

Abuse of process

Dismissal of proceedings - Earlier judicial review - Issues not raised - Whether issue could have been raised - Whether plaintiff fully advised - AA v Medical Council [2003]4 IR 302 followed - Proceedings dismissed(2003/6559P - Hanna J - 18/3/2005) [2005]IEHC 102

M(S) v Ireland

Twenty five charges were preferred against the plaintiff, twenty three of which were brought under s. 62 of the Offences Against the Person Act 1861. The plaintiff issued plenary proceedings to challenge the constitutionality of s. 62 of the Offences Against the Person Act 1861. The plaintiff had previously failed in judicial review proceedings to stop his trial. The defendants brought a motion to dismiss the present proceedings as an abuse of process and the parties agreed that the Court should deal with the motion as a preliminary issue. The defendants argued that the proceedings raised issues which could and ought to have been raised in the earlier judicial review proceedings.

Held by Hanna J. in dismissing the proceedings that they amounted to an abuse of process. The plaintiff had failed in his attempt to prohibit his prosecution by way of judicial review. The reason advanced for his failure to litigate the issue raised in these proceedings in the judicial review application was not tenable.

Reporter: R.W.

1 JUDGMENT of Mr. Justice Hanna delivered on the 18th day of March, 2005

2 The above entitled proceedings commenced by way of plenary summons on 30th May, 2003. The plaintiff seeks to challenge the constitutionality of s. 62 of the Offences Against the Person Act, 1861. Since the issue of proceedings, pleadings have been exchanged, including an amended statement of claim and defence. During the course of the proceedings the plaintiff's legal representation changed and a notice of change of solicitor was served on 11th December, 2003. By the end of November, 2004, the President of the High Court was informed by both parties that the case was ready for hearing.

3 Notwithstanding the foregoing, the defendants, very late in the day, brought a motion in the proceedings dated 8th February, 2005, seeking, inter alia, to dismiss these proceedings as an abuse of process. The parties have agreed that I should deal with this motion as a preliminary issue. Accordingly, I will not comment upon the substance of the plaintiff's case or of the defence thereto.

4 It will be necessary to outline the essential background facts of the case. The plaintiff, a retired school teacher, was, at all material times, a member of the Christian Brothers congregation. Between the months of August, 1967 and August, 1974, he was a member of the staff at St. Joseph's residential school in Galway. Between March, 1995 and January, 1996, a number of persons, six in all, made complaints to An Garda Síochana of alleged indecent assaults perpetrated upon them by the plaintiff while they were pupils at the said school. It should be stressed that the plaintiff denies these and subsequent allegations to which I will shortly refer. The plaintiff was interviewed on two occasions by An Garda Síochana and, ultimately, twenty five charges were preferred against him, twenty three of which were brought under s. 62 of the Offences against the Person Act, 1861.

5 Two further complainants made allegations of a similar nature against the plaintiff in June and July, 1997. These in turn led to an additional eight charges being preferred against him all of which were brought under s. 62 aforesaid. Two books of evidence were served, one in November, 1997, dealing with the first tranche of charges relating to allegations made up to 2nd January, 1996 and a second book served on 3rd February, 1999, dealing with the second tranche of allegations made in June and July, 1997. The latter book of evidence was served on 3rd February, 1999. All of the charges, now 33 in number, including 31 involving s. 62 aforesaid have been consolidated and are the subject of the one return for trial dated 28th February, 2000. As is evident, there has been a considerable delay in processing this matter largely due, it would seem, to the case becoming bogged down in applications for discovery and transfer to Dublin and related matters.

6 On 16th February, 1998, the plaintiff sought and was given leave to apply for judicial review by way of prohibition against the Director of Public Prosecutions in respect of the criminal proceedings which were founded on the first tranche of allegations. Prior to this, the plaintiff had been interviewed by the Gardaí in relation to the second tranche of allegations and, during the currency of the judicial review proceedings, he was charged and served with a book of evidence in relation to these latter charges. The judicial review came on before Mrs. Justice McGuinness on 20th December, 1999. The plaintiff was refused the relief he sought and thereby failed in his attempt to stop the trial.

7 Counsel for the defendants, Mr. Coffey S.C., contends that the present proceedings are an abuse of process in that they raise issues which could and ought to have been raised in the judicial review proceedings. He complains that the plaintiff offers no tenable argument as to why the constitutional challenge was not litigated either in the judicial review proceedings or in tandem with them. He argues that the court must weigh heavily the public interest in coming to a view as to whether or not the current proceedings constitute an abuse of process.

8 For the plaintiff, Mr. Hogan S.C. complains of delay on the part of the State in bringing this application. He contends that the issue raised in these proceedings could not properly have been raised in the judicial review proceedings. He says that it is a discrete constitutional issue of major importance which, he candidly admits, had not occurred to the plaintiff's then legal representatives. He further points out that the judicial review proceedings were concerned only with the first tranche of charges. The second tranche of charges were not argued or dealt with before Mrs. Justice McGuinness.

9 This court has an inherent jurisdiction to police proceedings before it and to deal appropriately with any proceedings which it perceives to be an abuse of process. This is well described by Costello J. (as he then was) in Barry v. Buckley [1981] I.R. 306 where he says at p. 308:-

"But, apart from order 19, the Court has an inherent jurisdiction to stay proceedings and, on applications made to exercise it, the Court is not limited to the pleadings of the parties but is free to hear evidence on affidavit relating to the issues in the case: see Wylie's Judicature Acts (1906) at pp. 34–37 and The Supreme Court Practice (1979) at para. 18/19/10. The principles on which the Court exercises this jurisdiction are well established. Basically its jurisdiction exists to ensure that an abuse of the process of the Courts does not take place. So, if the proceedings are frivolous or vexatious they will be stayed. They will also be stayed if it is clear that the plaintiff's claim must fail; per Buckley L.J. in Goodson v. Grierson at p. 765."

10 It is, of course, desirable that all issues such as arise on this application be dealt with at the earliest reasonable stage of proceedings. From the point of view both of the parties and the courts such issues should be processed, where possible, at an early point in proceedings rather than let matters trundle onwards with inevitable time and costs implications. Nevertheless, it seems to me that once a potential abuse of process has been identified, it is, in my view, incumbent upon the court to assess the situation and act accordingly and I cannot see that any delay on the part of the party bringing an alleged abuse to the attention of the court could or should weigh heavily or, indeed, at all, with the court. Accordingly, the undoubtedly significant delay in raising the issue of abuse of process in this case is not, in my view, a factor of any real materiality in addressing this particular issue.

11 The next question that arises is whether it would have been possible to litigate the constitutional issue raised in these proceedings within the framework of the judicial review proceedings. It was contended on behalf of the plaintiff that the constitutional challenge in question could not have been so accommodated. Reliance was placed upon the dictum of Barrington J. in Riordan v. An Taoiseach (No. 2) [1999] 4 I.R. 343 at pp. 350 to 351. In that case, a lay litigant had brought judicial review proceedings challenging, inter alia, the constitutionality of the 19th amendment of the Constitution Bill, 1998. Mr. Justice Barrington said as follows:-

"This Court accepts that the system of judicial review referred to in O. 84 of the Rules of the Superior Courts, 1986, is a very useful jurisdiction. It...